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The Power of Now
Tuesday, October 8, 2013
Mark Osler, a former prosecutor calls for #JusticeInSentencing and writes it's "Time to free those who've been jailed too long." Currently 9,000 individuals, the vast majority of whom are African-American, are still serving excessive and wildly discriminatory sentences based on the 100:1 crack cocaine sentencing guidelines. Congress recognized this disparity was not justified scientifically or penologically and passed the Fair Sentencing Act in 2010 which reduced this disparity. LDF will argue in the 6th Circuit on Wednesday that the Fair Sentencing Act should be applied retroactively and those individuals should be entitled to a new, fair sentencing hearing.
No one in this country should be required to serve a prison sentence that is unfair, arbitrary, or racially discriminatory. This week, the United States Court of Appeals for the Sixth Circuit, which covers Ohio, Michigan, Tennessee, and Kentucky, will have the opportunity to affirm this fundamental principle of fairness and justice. In U.S. v. Blewett, the full court will decide whether the Fair Sentencing Act (FSA)–which reduced the federal government’s notorious 100:1 sentencing ratio for crack and powder cocaine to an 18:1 ratio–should apply to all offenders, regardless of their date of sentence. The court’s decision should be an easy one: the FSA must be applied equally to everyone, including the thousands who were sentenced before the FSA was enacted.
I know very well how those men and women received such long sentences, because I put some of them there. From 1995-2000, I served as an Assistant United States Attorney in the Eastern District of Michigan. From my office in downtown Detroit, I worked on dozens of low-level crack cases where the 100:1 ratio applied. At the time, I believed it was solving a problem. I was wrong. The use of that law disproportionately led to long sentences for African-Americans, while the flow of narcotics into the city continued. We were sweeping up low wage labor and incapacitating them for decades, in an economy where low-wage labor was abundant. No wonder it didn’t work–it was the functional equivalent of thinking you can shut down Wal-Mart by locking up the greeter. The price of that mistake is now being paid by those who were over-sentenced under the now-rejected 100:1 ratio.
The racial effect of this pernicious law was stark. While only one-third of crack users were black, 82% of those convicted of crack offenses in federal court were black. Conversely, whites made up more than half the users, but only 10% of the defendants. In the end, this law had a devastating effect on some black communities without really curtailing the availability of crack. It is time to right that wrong.