Georgia Federal Criminal Lawyer Blog

An article in yesterday's New York Times examines federal drug sentences as part of the overall picture which shows that the U.S. leads the world in the number of people incarcerated, as well as in the length of those sentences. Part of the article looks at statistics showing how federal criminal sentences have exploded in the past two decades. Around 1980 there were 40,000 people serving time for federal crimes. That figure has expanded to almost 500,000 federal prisoners at the present time. The article points out that more than half of the people doing federal time were convicted of drug crimes. Here is a little background on how this amazing expansion of federal drug prisoners came to be.

When I was just out of law school in the early 1980's, I worked for a couple of federal judges as a law clerk. It's a great job where recent students help the judge and also get to see the legal system up close and in action. I always watched the criminal trials with interest. The drug cases tended to be prosecutions of large-scale dealers, importers and middle men. Cocaine seemed to be the drug that federal prosecutors focused upon.

I remember one case involving a pretty big dealer where the judge for whom I worked imposed what I thought was a rather harsh sentence, 15 years in prison. Later, the judge laughed when he explained that the guy would be out in under 5 years, maybe less. The reason was the old parole system used by the feds really only required the person to do about one-third of the actual sentence.

By the middle of the 1980's, Congress and the Reagan Administration were going full bore in their oddly misnamed "War on Drugs." Congress created mandatory minimum sentences, and in 1984, the extremely unfortunate Federal Sentencing Guidelines. Furthermore, the Reagan Administration convinced Congress to fund huge increases for the DEA and the Department of Justice. All those new DEA agents and young prosecutors needed to do something to justify their salaries, so lo and behold, the number of drug prosecutions shot skyward. However, going after drug kingpins is long and laborious work. By the 1990's, we were mostly seeing street-level dealers getting prosecuted in federal court. Only rarely have I seen a really big federal drug case in the past 15 years or so.

However, while the dealers are smaller, the sentences are now much longer. The mandatory minimum sentences, along with the ridiculous 100:1 ratio of punishments for crack versus powder cocaine, resulted in amazingly unjust sentences. Remember the 15 to serve 5 sentence imposed by my old judge on the high-level dealer? Nowadays, the kid who makes a couple of hundred dollars a week selling will get 10 years to serve, with no parole and no hope of early release (except for a little off for good behavior.) Other sentences likewise are far longer. I had a case a couple of years ago where my client had two prior drug convictions. This man was an addict, and a young drug dealer convinced the addict to carry a two ounce package across the street. The combination of the mandatory minimums along with some amazingly harsh rules for repeat offenders meant that this man was required to serve 30 years! And this for a low-level addict merely carrying the drugs in the hope of earning a small hit to fee his habit!

Our nation now incarcerates more people for drug crimes than any other country on earth. This has been an amazing waste of time, money, and most importantly, human lives. Lawyers who recognize how we came to this point in our nation's history need to tell the sad story of how all this came about. Only when the people realize how unproductive this all is can we hope to bring some sanity back to this aspect of our criminal justice system.

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Sentences in federal court for crack cocaine offenses will be reduced for many people, based on an amendment issued by the United States Sentencing Commission on December 11, 2007. This is good news for defendants who have been forced to spend longer in prison than similary situated defendants who were convicted of powder cocaine violations.

As I wrote about recently, crack cocaine is punished 100 times more severely than powder cocaine. Virtually all crack cocaine defendants are non-white, while at the same time people of all colors are prosecuted under the less stringent powder cocaine rules. For years, scientists and criminal defense attorneys have been arguing that this difference makes no sense, is unfair, and promotes widespread disrespect for the law.

The Sentencing Commission finally saw things our way, and agreed that the 100-1 ratio is unfair and makes no sense. For years now, the Commisson has been asking Congress to do something, but our elected lawmakers have failed to act. Earlier this year, the Commission published new rules designed to help this situation a little bit. After a six month period during which Congress could have squashed the changes, the new rules went into effect. Even more importantly, the December 11 amendment made these changes retroactive, which is a fancy way of saying the new rules apply to people who have already been sentenced. In other words, if you or a loved one was sentenced even many years ago, there is a chance that sentence can be reduced.

The Sentencing Commission says that the retroactivity rule will not go into effect until March 3, 2008, so it does no good to ask a judge for anything until that date. However, for those who may be affected, it makes sense to get ready and try to get to the head of the line. At our law firm, Kish & Lietz, we will be glad to talk with you about whether we can assist your loved one in getting a reduced sentence.

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Federal sentences for crack cocaine crimes are grossly unfair. For almost two decades, many people have been fighting against a system in which a person with crack cocaine is punished 100 times more severely than a similarly situated offender who happens to have a powder version of this drug. Although there are a series of recent developments that show promise for remedying this gross disparity, I still wonder if the legislature or the courts will ever show the courage to do the right thing.

A bit of history first. Cocaine dealers have been prosecuted in the federal courts for many years. In the early and mid-1980's, drug dealers and users discovered that by "freebasing" the drug, the user got a much more intense "high." Many of us of a certain age remember that the amazingly funny Richard Pryor almost killed himself using this method. Later, the dealers took this method to the next level, resulting in a solid version of the drug which came out in cookie form. The dealers would have to crack off a piece from the cookie every time they wanted to sell some, hence the term "crack." By the mid-1980's, crack was taking over, and resulted in a lot more violent crime in the drug trade. The publicity came to its high point when college basketball sensation Len Bias died from an overdose of crack cocaine the dayy after the Boston Celtics made him their number one pick in the draft. Shortly thereafter, Congress enacted a series of mandatory minimum penalties for federal drug crimes, and among these laws were rules that punished crack cocaine violators 100 times more harshly than persons who were involved with a powder version of the crime.

When prosecutors began using these new penalties, it became clear that only black people were getting charged with crack cocaine penalties, while powder cocaine penalties were imposed on both black and white offenders. Myself and other lawyers began mounting challenges against these unfairly disparate laws. I remember going to a seminar when we were trying to figure out how to raise challenges, and we listened to a famous pharmacologist who gave us a lesson on the chemistry of cocaine and how cocaine acts on the human body. I asked the scientist how crack differs from powder cocaine when it affects the human body, and was amazed when he said there is no difference!

Time went on, we lawyers raised challenges, and the courts continually turned a deaf ear. In one case, the public defenders convinced the courts to dismiss the charges because the federal prosecutors refused to provide information about why the vast majority of crack cocaine prosecutions involved black people, but the Supreme Court ruled that the case should continue and the prosecutors did not have to explain this ridiculous diffference.

We now are finally seeing some progress. The United States Sentencing Commission has proposed rules to rectify this disparity. However, these changes won't affect the basic problem of the mandatory minimum sentencing scheme enacted way back after basketball player Len Bias died. Sentencing judges have been occassionally trying to rectify the problem by using a "downward departure" or a "variance". The Supreme Court recently heard arguments about this, and how it will turn out is anyone's guess. No matter what happens, thousands of defendants and their families have had their lives wrecked by an unfair set of laws enacted in the midst of the media-created drug hysteria of the mid-1980's. I cringe every time I remember trying to explain to the family of a young man how he was required to go to federal prison for ten years on his first offense just because he helped carry an ounce of crack cocaine from one place to another. I can only pray that this two decades of unfairness has not completely turned those clients and their families against our criminal justice system.

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Drug crimes in federal court involving young people are unfortunately too common. However, most young people, and many of their parents, do not realize how the harsh sentencing schemes in federal court can have a severe impact on what appears on the surface to be merely a youthful indiscretion.

I have several current clients who come from very nice families, young people whose lives can be impacted severely because of some stupid involvement in drug crimes. The reason that these crimes can have severe impacts are the set of mandatory minimum sentencing schemes enacted by Congress back in the 1980's. These harsh sentencing laws can result in 5 or 10 year minimum sentences, even for some of those least involved in a drug crime. A good example on how even the least involved person can get caught up in these harsh mandatory sentences is an appeal we won for a client several years back.

These mandatory sentences can be amazingly harsh, especially for anyone foolish enough to deal in either crack cocaine or LSD. Small amounts of either substance can yield 5 or 10 years in a federal prison, with absolutely no hope of parole. What makes it even more absurd is that the sentence depends on the weight of the "mixture of substance" that contains even a "detectable amount" of the drug. The Supreme Court has had held that the blotter paper on which some foolish young person drips the drug is included in the weight. Many families have been so incensed about these ridiculous sentencing schemes that they have bonded together in the Families Against Mandatory Minimums lobbying group.

Many parents and young people are also shocked when they realize that there is no "first offender" or records expungement procedure in federal court. In other words, young people caught up in a federal drug case can be stuck with the stigma of a criminal conviction for the rest of their lives.

We have been able to help a few young people in these situations. Obviously, the most important thing anyone can do when they know a young person caught up in a federal drug investigation is to contact an experienced federal criminal defense attorney.

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Posted In: Drug Crimes

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