Articles Posted in Prison Reform

Many criminal law practitioners believe the criminal justice system is broken. Most believe the reason it is broken is because the plea-bargaining system is broken. Federal Judge Jed Rakoff offered his own insight in a New York Daily News piece that was released today. Judge Rakoff basically asserts that the presence of mandatory minimum sentences has shifted the balance so far to the prosecution side, that just about everybody who is accused of a federal crime elects to plead guilty to a lesser charge instead of choosing to fight the case. Therefore, the actual evidence of guilt in a case never sees the light of day because everybody pleads guilty. This leads to a prison population that is filled with innocent people. To the non-criminal law practitioner it seems like that can’t possibly be true. Unfortunately it is.

The framers of the United States Constitution and the subsequent Bill of Rights went out of their way to create a legal system that was fair to the criminally accused. They created amendments that not only protected people against unreasonable searches and seizures by the government, but they also created rights which insured that if accused of a crime, a person has the right to have a lawyer, has the right to confront witnesses against him in open court, has the right to be free from being compelled to testify, has the right to a speedy trial, etc. The framers must have concluded that no innocent person would ever go to jail with all these checks on the government. Unfortunately, these rights have been systematically eradicated due to the enactment of harsh mandatory minimum sentences. Here is why.

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The United States has as a population of approximately 300 million people.  The world is comprised of approximately 6 billion people. That means that if you’re a human on planet earth, there is a 5% chance that you are an American. However, if you are a human who is imprisoned somewhere on earth, there is a 25% chance that you are in an American prison. How did a free country that believes in life, liberty, and the pursuit of happiness turn into one that imprisons more of its own people than any other country? Drugs.

In 1986, President Ronald Reagan signed the Anti-Drug Abuse Act into law. This law was designed to be a major blow against drug pushers and drug users. The law had two significant aspects to it that are directly responsible for the enormous United States prison population. First, the law created a mandatory minimum sentence for simple drug possession over a certain weight. This mandatory minimum sentence was five years incarceration without the possibility of parole. This included not only “hard” drugs like cocaine and heroin, but also included marijuana. Second, the law contained an inexplicable 100 to 1 ration for the weight necessary to qualify for this mandatory minimum between crack-cocaine and powder cocaine. This means that under the law, you had to possess 500 grams of powder cocaine to be eligible for this mandatory minimum. However, to be sentenced under this same provision, you just need to be caught with 5 grams of crack-cocaine. If these simple numbers aren’t shocking enough, let me put them in proper perspective. 500 grams is equivalent to half of one kilogram. A law enforcement official with whom I am friends tells me that in New York today, the current street value for half a kilo of cocaine is usually between $25,000 to $35,000. Meanwhile, the current street value for 5 grams of crack-cocaine is approximately $150-200. This disparity is amazing considering crack is cocaine that is simply “cooked” with chemicals like baking soda.

Therefore, for a person to be found guilty of possessing a half-kilo of cocaine, he is likely to be a relatively prolific drug dealer. Conversely, possession of just 5 grams of crack is more indicative of a low-level drug dealer or even a user. Based on my experiences both as a prosecutor and as a defense attorney, people caught in possession of low amounts of crack are usually themselves addicted to the substance, even if they are also dealing it. People at this level tend to deal drugs to support their addiction.

The federal government of the United States currently incarcerates over 200,000 people. Approximately 7% of these people are considered to be “violent offenders” by the Federal Bureau of Prisons. In 1985, just one year before the Anti-Drug Abuse Act of 1986, the federal prison population was a little over 20,000. The 1986 law, along with similar laws enacted by the individual states, is directly responsible for the enormous prison population of the United States. A prison population that, at least in my opinion, is largely comprised of drug addicts. Continue reading →