Congress Should Listen to The Judges on Mandatory Sentencing:

Every effort to scrap or modify the blatantly unfair minimum mandatory sentencing law for illicit drug abusers has crashed against two things. The first was then President Bill Clinton's half-hearted fight to change the disparity sentencing in the law in Congress in the mid-1990s. Next, it crashed against President Bush and the Republican-controlled Congress's dogged battle against changing the sentencing disparity. The law requires that judges slap a minimum mandatory sentence of five years on anyone caught with crack cocaine. Those convicted are mostly poor blacks. Those caught with the same amount of powdered cocaine, mostly whites, often middle-class suburban whites get a comparative hand slap sentence.

Clinton, Bush and Congress easily turned a tin ear to those screaming for reform as along as they were the usual suspects, the ACLU, black and Latino activists, a handful of elected officials, drug reform organizations, and criminal justice reform advocates. Congress may have a harder time ignoring the latest to raise their voices against the law. The ones screaming louder this time are federal judges. Many of them are Reagan and Bush appointees, have impeccable conservative credentials, and are not bleeding heart liberals on crime. But a growing number of them say it's time for change in the laws.

Michigan Democrat John Conyers, the new chair of the House judiciary Committee, and a long time crusader against sentencing disparities has pledged to hold hearings on the disastrous impact of the laws. And they have been a disaster.

When Congress enacted the law in 1986, the idea was to use tougher drug sentencing to rid the streets of violent, drug kingpins. At the time, drug and gun violence tore many poor black neighborhoods, and police and terrified residents demanded a crackdown. The law hammered poor blacks, had almost no affect on the drug lords, and gave white drug users a relatively free legal pass. The problem for the judges was that the laws stripped them of much of their discretionary legal authority to impose sentences. In several judicial districts, judges quietly rebelled, bent the rules, and lightened sentences for some first time offenders.

In at least one case, a judge resigned from the bench in protest against the mandatory sentencing laws. Even Supreme Court Justice Stephen G. Breyer, Anthony M. Kennedy, and the late William Rehnquist have publicly called for scrapping or at least modifying the mandatory law. This drew a loud rebuke from then Attorney General John Ashcroft. There were open threats to retaliate against the dissenting judges.

Meanwhile, the majority of blacks that are sentenced under the law, and that's upward of 80 percent, are poor, ill educated. They fit the increasingly standard, and disturbing profile of thousands of federal prisoners. Though studies confirm that black illicit drug use is no greater than that of whites, they are less likely to be offered a chance to plea bargain, black drug offenders are more likely to fall under federal or state minimum mandatory sentencing law, and will serve a sentence nearly double that of whites. The escalation in black incarceration is the single biggest cause of the massive bulge in the number of inmates in federal prisons. The number has jumped four fold since the late 1980s, and more than half of them are there for drug crimes, or other petty offenses.

The law has wreaked havoc on many black communities and families. A handful of states permanently ban ex-felons from voting. More than half of those disenfranchised are black men. The voting ban diminishes the political power of the black communities. Women convicted of felony drug offenses are also barred for life from receiving welfare benefits. This puts thousands of women and their children at dire social risk and increases the likelihood that they will commit more crimes. The high black imprisonment rate also drastically increases health risks and costs in black communities, since many prisoners are released with chronic medical afflictions, particularly HIV/AIDS.

The mandatory sentencing law has been a costly white elephant, and has done nothing to curb violent crime. More states realize that stuffing thousands in jail cells is no cure for crime and drug ills. In Michigan, California and New York, courts are much more willing to send people to drug treatment programs rather than prison. And a growing number of states have repealed, or modified their mandatory sentencing laws. Still, it's the judges that can make a difference with Congress. Breyer, Kennedy and the other federal judges that protest minimum mandatory sentencing have repeatedly said that the laws are wasteful, harmful, and a judicial embarrassment that threatens the legal independence of judges. The law further mocks the concept of equal protection under the law for rich and poor alike.

Conyers should move with all due speed to get congressional hearings going and show the damage of sentencing disparities. Then Congress should change or end them.

by Earl Ofari Hutchinson, an author and political analyst. His new book The Latino Challenge to Black America: Towards a Conversation between African-Americans and Hispanics (Middle Passage Press and Hispanic Economics New York) in English and Spanish will be out in September.