Pubdate: Wed, 21 Feb 2007
Source: Boston Globe (MA)
Copyright: 2007 Globe Newspaper Company
Contact:  http://www.boston.com/globe/
Details: http://www.mapinc.org/media/52
Author: Derrick Z. Jackson, Globe Columnist
Bookmark: http://www.mapinc.org/coke.htm (Cocaine)
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)
Bookmark: http://www.mapinc.org/topics/Sentencing+Commission
Bookmark: http://www.mapinc.org/find?247 (Crime Policy - United States)
Bookmark: http://www.mapinc.org/find?249 (Sterling, Eric E.)

WHEN JUSTICE DOESN'T ADD UP

ON A SCALE of 100-to-1, the juxtaposition was 100 times better than fiction.

Supreme Court Justice Stephen Breyer opened yesterday's session by 
announcing that the court, in a narrow 5-to-4 decision, vacated $79.5 
million in punitive damages against cigarette maker Philip Morris. A 
deceased Oregon smoker was awarded $821,000 in compensatory damages, 
but a jury imposed the punitive damages for Philip Morris's deceit in 
making smokers think cigarettes were safe. Lawyers for the smoker, 
Jesse Williams, asked the jury to "think about how many other Jesse 
Williams in the last 40 years in the state of Oregon there have been."

Philip Morris argued that it could only be punished for the harm done 
to that one smoker. It said the "roughly 100-to-1 ratio" of punitive 
vs. compensatory damages was "grossly excessive." The Supreme Court 
agreed with the cigarette maker on that point, saying that "to permit 
punishment for injuring a nonparty victim would add a near 
standardless dimension to the punitive damages equation." The court 
did not directly address whether the $79.5 million was grossly 
excessive. It left the door open for lesser damages or a new trial.

Then the oral arguments began for two cases before the court. They 
were related cases that challenged how much judges could veer from 
sentencing guidelines. One of them involved Mario Claiborne, a St. 
Louis man now 23 who was arrested twice in 2003 for possession of 
crack cocaine. The first time, he was caught with .23 grams. The 
second time, he was caught with 5.03 grams.

Crossing the 5-gram mark triggered a five-year mandatory minimum 
sentence. But he had no prior record, no violent history, no ties to 
organized drug selling, and cooperated with law enforcement. His 
prior clean record allowed a reduction to between 37 and 46 months in 
jail. But the district judge sentenced Claiborne to 15 months, 
saying, "I come to the conclusion that a 37-month sentence would be 
tantamount to throwing you away."

The Eighth Circuit reversed the ruling saying the reduction was an 
"extraordinary variance" not supported by "extraordinary facts."

Claiborne's attorneys assert that since his release from prison last 
May, he is working and raising three children. His name was before 
the court yesterday because the government asserts that the judge 
went way afoul of sentencing guidelines. But Claiborne's name was 
also before the court because of two decades of the most foul drug 
laws since the official end of segregation.

Amidst the general passion for punishment in the Reagan era and the 
hysteria fueled by media stereotypes of black people crazed on crack, 
the federal government established laws that required the possession 
of 5 grams of crack cocaine to be slapped with a mandatory five-year 
sentence, while it took 500 grams of powdered cocaine. This 100-to-1 
ratio also meant that 50 grams of crack landed you in prison for 10 
years, while it took 5,000 grams of powder to be treated the same way.

Eric Sterling, the former counsel to the House Judiciary Committee 
who helped write the laws in 1986 and now calls them part of a series 
of "terrible mistakes," likened the difference between 5,000 grams 
and 50 grams to that of a briefcase full of drugs and a candy bar. 
Even though Americans use illegal drugs in racial proportions to the 
population, the 100-to-1 ratio meant young black men being hauled off 
the street and imprisoned at a rate where today one of every three 
black males is likely to develop a criminal record. Had Claiborne 
possessed powdered cocaine instead of crack, he would have faced 6 to 
12 months instead of five years.

No one did anything about it, even though the US Sentencing 
Commission has long called for a reduction in the disparity. 
President Clinton said the 100-to-1 ratio was "unfair, unjustifiable 
and should be changed," but he did not work to change it.

So in some way, Claiborne's name stood before the court yesterday 
representing all the black men unfairly put away under unjust laws. 
But even though Justice Ruth Bader Ginsberg wondered about the 
disparity yesterday, Chief Justice John Roberts proclaimed the issue 
of the 100-to-1 ratio to have "nothing to do with the individual case."

A jury is found to have overreached on a 100-to-1 ratio against 
Philip Morris. The government seeks to keep punishing people on a 
100-to-1 ratio. It may have nothing to do with the individual case, 
but it has everything to do with American justice. 
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MAP posted-by: Richard Lake