Pubdate: Mon, 26 Apr 1999
Source: New Rebublic, The (US)
Copyright: 1999 The New Republic
Contact:  http://www.thenewrepublic.com/
Author: Gregg Easterbrook
Note: An outstanding series of ads have also been appearing in The New
Republic. They are at:
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How The Affluent Got An Exemption In The War On Crime.

RUN-ON SENTENCING

SOMETHING HAD TO BE done about crime, and something has emphatically
been done. Since 1985, the prison population has doubled, with almost
two million Americans currently incarcerated. Three-strikes statutes
and "mandatory minimum" laws are imposing serious time for
convictions, from five years for petty drug possession to life for
some nonviolent acts. And, as policing has improved, so, too, has the
efficiency of prosecution. The guilty man who walks free has become
the spectacular exception: federal prosecutors are now obtaining
convictions in 89 percent of felony arrests. No longer can America be
considered soft on crime. Streets are safer as a result, and,
considering the runaway crime of the1980s, this is a far reaching,
positive accomplishment.

But there is a cost. A woman receives a 21year sentence for selling
$25 worth of crack. A man named Earl Budd Jr., whom the sentencing
judge calls "as much a threat to society as my eight-year-old
grandson;" gets six-and-a-half years for one packet of drugs. A
California man with two prior convictions gets 25 to life for his
third strike--stealing a pizza. A foolish 18-year-old named Nicole
Richardson, whose boyfriend had been dealing drugs, gets ten years for
a telephone conversation in which she told a buyer where to find him.
A Kansas mother of two named Gloria Van Winkle, guilty of minor
brushes with the law but never of harming anyone, gets life
imprisonment for possessing $40 worth of drugs. An Alabama roofing
contractor named Douglas Gray, with indiscretions on his record but
never a day in jail, gets life for a single purchase of a pound of
pot.

Congressional and civic leaders, business executives, opinion-makers,
and the larger group of affluent Americans ensconced in the better
suburbs or city districts have been reading horror stories such as
these in recent years, and, by all indications, they have not been
moved. For the top quarter of the income distribution scale, the valid
need to fight crime seems to have merged with indifference to the
suffering of those being excessively punished. Perhaps there is a
straight forward reason for this--it is mainly the disenfranchised who
are being hammered by the new laws. In state and federal courtrooms
across the nation, one sees people from working-class or average
backgrounds getting harsh penalties for minor drug offenses in case
after case. What you don't see are persons of privilege, who, even if
they commit drug offenses, can often arrange to keep themselves out of
felony jeopardy and, hence, jail.

Stanley Sporkin, a federal judge in Washington, D.C., recently told a
congressional committee, of having no choice under new regulations but
to sentence a working-class first-time drug offender to ten years. "If
this person were from a different socioeconomic background, he would
have gone to the Betty Ford Clinic for sixty to ninety days" and
served no time, Sporkin said. The charge would have been finessed long
before any judge was drawn in.

The threat of prison has become to the '90s what the draft was during
most of the Vietnam years--a burden for the typical person from which
the elite are nearly exempt. Just as sons of laborers and secretaries
were drafted while sons of lawyers and businessmen took shelter in
universities, today those of average means who cross paths with the
law become crime-crackdown statistics while those with good jobs or
social contacts have less to fear when a police officer knocks at the
door. During the Vietnam years, American society pronounced itself
willing to accept any cost to oppose communism, but, if that had been
really so, the affluent would have borne an equal share of the combat
sacrifice. Now, in the war on drugs and crime, society has pronounced
itself willing to impose any level of punishment to stop lawbreaking.
If that were really so, the affluent would be as likely to be jailed
as the average, and that is not happening.

OF COURSE, the majority of crimes have always been committed by the
poor or the working-class, and thus one expects to find them
over-represented in jails. But "since about 1980 with the war on
crime, there has been a shift. Federal prisons have become far more
working-class," says Marc Mauer, assistant director of the Sentencing
Project, a nonprofit group. According to the most recent statistics,
the majority of U.S. prisoners did hold jobs in the year before their
arrest, but only ten percent had incomes above $25,000, which was
roughly the U.S. adult per capita income for the survey year. In other
words, 90 percent made less than the U.S. average. Only 15 percent of
state-prison inmates had attended a year or more of college, while for
the population as a whole the figure is 45 percent. The college factor
here is especially telling. One of the virtues of college is that it
helps people get ahead in society, and those who do well are less
likely to break laws. But college is reacquiring the status it enjoyed
in the '60s as a source of exemption--then against the draft, today
against the likelihood of harsh punishment for minor crimes,
especially those involving drugs.

People who do have jobs but don't make much, and didn't get past high
school, are pretty much the definition of working class: they are what
the burgeoning prison population has become. The sheer magnitude of
the increase is breathtaking. The prison population has tripled since
1980, from about 600,000 to about 1.8 million. This is six times the
figure of 1972, when only 300,000 were behind bars. Almost 1,000 new
jails and prisons have been built to house this influx: California,
for example, has built 21 new prisons since 1984, versus one new
university campus. Prisons now cost society about $35 billion per
year, or roughly double the national welfare budget. As Eric Schlosser
has written, today California alone "holds more inmates in its jails
and prisons than do France, Great Britain, Germany, Japan, Singapore,
and the Netherlands combined," though those nations combined have ten
times California's population.

MOST OF THE prison boom is caused by non-violent offenses, and mostly
for drug convictions. Two decades ago, federal prisons held almost
twice as many violent offenders as drug offenders; today, those
serving drug time outnumber violent criminals by three to one in
federal penitentiaries. Schlosser has further written, "More people
are now incarcerated in the nation's prisons for marijuana possession
than for manslaughter or rape." According to a study by Human Rights
Watch, one of every four drug convicts has been imprisoned for
nonviolent, simple possession, usually of minute quantities. Drug
possession is often easier to prove than responsibility for acts of
violence, so prosecutors sometimes rightly use drug laws as a means to
send up dangerous criminals who might elude other attempts at
conviction. But, given the magnitude of the imprisonment boom, it is
inevitable that many harmless or only slightly culpable men and women
are being swept up, too. A recent study of New York state drug inmates
showed that 78 percent had no prior convictions for violent felonies
and that almost half had never even been arrested on a charge of violence.

Some of the incarceration increase is attributable to putting
genuinely dangerous criminals behind bars, where they belong. If that
means more prisons and higher costs, so be it. There is no doubt that,
until laws were changed in the mid-'80s, the system was often
frighteningly permissive regarding violent crime. One of many ghastly
examples was a 1982 rampage for which a gang of five New York men were
ultimately convicted of 822 counts of rape, attempted murder, assault,
and robbery. Yet none received a life sentence; three of the five are
already eligible for release. And some new laws take white-collar
crime more seriously: today, embezzlers and tax evaders face a greater
risk of hard time than in years past, a change that can jeopardize the
well-off.

Still, if lengthy sentences are appropriate to punish those who cause
great harm or to isolate those who have shown they pose a danger to
society, they are less useful as crime deterrents. Criminology
generally shows that it is the likelihood of being caught and
convicted--not the severity of sentences--that deters crime. Thus,
improved policing, more determined prosecution, and such legal changes
as the "good faith" exception to evidence exclusion (today it is rare
for an obviously guilty person to get evidence suppressed in court) do
help deter crime by causing criminals to know they are likely to pay
for their crimes. Sentences per se don't have a similar deterrent
effect. When long sentences are imposed for minor, nonviolent
transgressions, the pendulum swings from too little punishment to too
much.

But, since this pendulum now has swung mainly toward the poor and
working class, the enfranchised rarely worry. They know that "it is a
nearly universally held opinion that the well-to-do accused will
escape the harshest sanctions of criminal law," says Eric Sterling,
head of the Criminal Justice Policy Foundation and former counsel to
the Senate Judiciary Committee. Opinion-makers and affluent
suburbanites benefit from crime reduction but pay little price in
terms of sons, daughters, or neighbors incarcerated. From the
standpoint of the upper middle class, the crime crackdown is almost
all dividend: the more sleazy people taken off the street and locked
away the better, and who cares whether they really deserved as bad as
they got.

SEVERAL OVERLAPPING LEGAL TRENDS have driven the imprisonment boom.
One is the "guideline" sentence. Until recently, judges had great
leeway in determining punishments. Results were often unfair, so
Congress created the U.S. Sentencing Commission, which in 1987
published a point-scale system of crime types and penalties that
judges must now use to calculate uniform sentences. Since 1987,
federal judges have had relatively little discretion and can "depart
downward" from the guideline only in some cases. This makes sentences
less arbitrary. But it also means that judges must sometimes impose
lengthy hard time even if there's no evidence a convicted person
threatens society.

Another development is much harsher sentences for drugs. New York
began the trend in 1973, when Governor Nelson Rockefeller won
enactment of laws mandating years of jail time for small quantities of
drugs and up to life imprisonment for trafficking. Today, critics
attribute those laws to a cynical attempt by Rockefeller to macho-up
his image for a 1976 presidential bid. But today the late '60s heroin
plague is forgotten, in part because strict laws hampered the pusher
business. This was a vital accomplishment.

The problem is that harsh sentencing laws have acquired a political
life of their own and have been extended even to marijuana, whose
public-health significance is not meaningfully different from
alcohol's. Most politicians are now terrified of any suggestion that
some sentences are too harsh, fearing the charge of being soft on
crime. George Pataki, New York's governor, initially said he would ask
for repeal of the parts of the Rockefeller laws that cause nonviolent
offenders to be jailed for minor possession. This winter, Pataki
backtracked, saying the laws should stay in place. The political
calculus shows that the most active voting blocs--suburbanites, the
affluent, and senior citizens--want punitive crime measures since they
presume they won't be affected. And the imprisoned well, in most
cases, once you're a felon, you can't vote, so why should politicians
give a hoot about you?

During the '80s, many states enacted harsh drug-sentencing rules
modeled on the Rockefeller laws. Fifteen states today have statutes
that impose life sentences not just for trafficking in cocaine or LSD
but for selling marijuana. Broad state enactment of Rockefeller-style
drug laws explains why about 130,000 Americans--nearly the total
national prison population of the '50s--are now jailed for simple
possession of narcotics. As Timothy Egan has written, "Americans do
not use more drugs, on average, than people from other nations; but
the United States, virtually alone among Western democracies, has
chosen a path of incarceration for drug offenders." In 1986, Congress
took the Rockefeller drug laws national, enacting statutes that allow
drug-crimes to be prosecuted in federal as well as state courts, and
imposing brutal sentences.

MOST POLICY ATTENTION to the 1986 law has fallen on its "100 to one"
clause, which treats crack 100 times more harshly than powder cocaine.
Possession of five grams of crack cocaine--a fairly small
amount--triggers a five year sentence, while 500 grams of powder
cocaine is necessary to invoke the same sentence threshold. This rule
has become notorious because it affects blacks disproportionately:
most crack defendants are black; most powder cocaine defendants are
white. But the more basic bias in the law is class-based: crack
cocaine is cheaper than powder cocaine. Sons and daughters of senators
or university presidents or newspaper editors are likely to buy the
much higher status powder cocaine. By jailing people for possession of
small crack amounts but not small powder amounts, the law now
inherently targets the working class and poor at the expense of the
moneyed. And not just blacks: Gloria Van Winkle, the Kansas working
mother sentenced to life for small time crack possession, is white.

More generally, the 1986 law simply imposes too much time for small
offenses, applying the same no-punishment-is-too-harsh ethic to all
crimes, horrific or piddling. The person caught holding a tiny amount
of drugs is treated like the person caught holding a bloody knife. As
Richard A. Posner, a federal appeals court judge and a conservative
Ronald Reagan appointee, has recently said, "Prison terms in America
have become appallingly long, especially for conduct that, arguably,
should not be criminal at all," meaning nonviolent possession of small
drug quantities. A 1994 Department of Justice study showed that 36
percent of federal drug inmates are "low-level offenders" with
"minimal criminal histories" but serve an average of almost six years
in prison.

"Long, mandatory sentences for significant drug traffickers are one
thing, but rules like five years for possession of five grams of crack
are morally abhorrent," says Frank Bowman, a law professor at Gonzaga
University and a former federal prosecutor who has won many
convictions under the new drug statutes. "To honor the law," Bowman
says, "you end up pounding the stuffing out of folks who don't exactly
remind anyone of Pablo Escobar."

In recent years, state and federal crimes have also come under the
aegis of mandatory-minimum sentencing, which means a fixed minimum
jail time regardless of extenuating circumstances. Mandatory minimums
are not the same thing as guideline sentences, but the two interact in
nefarious ways, sometimes making sentencing disproportionate to the
severity of crimes. Today, under New York law, conviction for selling
two ounces of cocaine will bring at least 15 years in prison; rape may
bring as little as five.

That mandatory minimums and sentencing guidelines have interacted in
untoward ways is "a good example of the law of unintended
consequences," in the words of Supreme Court Chief Justice William
Rehnquist--never known as particularly soft on crime. A 1994 survey by
the Federal Judicial Center showed that 86 percent of federal trial
judges want Congress to restore their discretion to reduce sentences
that are too harsh, while 70 percent think most mandatory sentences
should be repealed. The presence of such large majorities suggests
that many Republican appointed judges favor sentencing reform. Myron
Bright, a federal appeals court judge, recently decried in a bench
dissent "sentences [that] are excessively long but required by the
mandatory-minimum sentencing provisions and the overlaying
requirements of the federal sentencing guidelines. These unwise
sentencing policies which put men and women in prison for years not
only ruin lives of prisoners and often their family members but also
drain the American taxpayers of funds which can be measured in
billions of dollars." In 1998, two of the eleven federal circuits
issued rulings asserting a power to reduce sentences more or less
unilaterally. The rulings didn't stand but did suggest some of the
depth of judicial distress with the current sentencing regime.

Finally, federal law and some states have abolished parole for many
crimes, meaning that, even if a convicted person demonstrates
rehabilitation, punishment continues anyway. Abolition of parole is
extremely popular politically because it targets the Willie Hortons of
the world. But no-parole terms for nonviolent offenders seem
vindictive, a torment imposed upon the disenfranchised by the
comfortably established. And, without parole, it's hard for the law
enforcement system to undo its own mistakes.

THE RECENT ALTERATIONS to criminal procedure coalesce into an
unofficial but potent transformation: in most cases, it is now
prosecutors, not judges or juries, who make the basic determinations
about an accused person's fate. And, while judges and juries cannot be
lobbied, prosecutors can. The chance to lobby the prosecutor hardly
guarantees that an affluent person won't sink into legal trouble;
sometimes, prosecutors go out of their way to enforce the law against
those who abuse privilege. But, in the main, this factor is much more
likely to help the upper quarter than the lower.

Suppose you're arrested on a charge of unlawful reconstitution of
orange juice. Unless police make a flagrant error in the gathering of
evidence, your destiny is now in the hands of prosecutors. First comes
the basic question of whether you will be pursued in state or federal
court. Federal sentences are usually longer, and federal prosecutors
highly skilled, so chances are you would rather not square off against
the U.S. attorney. (Some crimes can be prosecuted in only one
jurisdiction; drug offenses and a few others may go to either state or
federal courts.) What carefully constructed, publicly accountable
system decides whether you face a state charge or the more severe
federal penalty? None. It's strictly up to the prosecutor to decide
whether he or she is interested. Such decisions are made for a wide
range of reasons. Perhaps the earnest U.S. attorney worries that a
dangerous offender might escape blundering local prosecutors. (If the
feds could have taken jurisdiction over the O.J. case, he'd be where
he belongs today.) Or perhaps a politically ambitious U.S. attorney
wants to nail skins to the wall for reasons of personal promotion.

Once the venue of prosecution has been chosen, the next question is
what you will be charged with. The prosecutor might select interstate
flight for unlawful reconstitution, the worst version of your crime,
carrying a life sentence. Then again, he or she might file for
reconstitution in the presence of a minor, which confers only ten
years, or merely charge you with possession of pulp with intent to
reconstitute, for which the penalty is a fine. Exactly how the
prosecutor decides to charge you is important because, if you're
convicted, guidelines and mandatory minimums will dictate your time.
Regardless of whether the judge thinks your sentence is appropriate or
a miscarriage of justice, off to the clink you go.

Then you have to decide whether to plead guilty or take your chances
at a trial. Today, 93 percent of federal convictions are obtained on
guilty pleas, for reasons from indisputable guilt, when there's no
doubt the accused committed the crime, to lack of funds for defense,
to the agreement to serve time on a lesser charge to avoid being
convicted of the maximum at trial. Simultaneously comes the question
of whether or not you will give the government "substantial
assistance" in catching others. Under the new regime, the primary way
a federal criminal defendant can win a reduction of prison time is by
supplying information. In return, the prosecutor files a motion that
the judge employs to invoke a formula awarding a reduction of your
sentence.

DISCOUNTING SENTENCES FOR information is fine when prosecutors use
this leverage to flip someone against a ringleader. But low level
defendants--drug mules or perhaps a working mother who succumbed to a
stupid moment of drug temptation--don't have information to offer.
Consider the case of Anthony Brigham, caught in a 1991 Drug
Enforcement Administration sting. Brigham acted as a lookout at a drug
buy. That's a crime, but he did little more than wander around a
parking lot, and never came into the presence of the drugs. The three
major traffickers caught in the sting all traded information for lower
sentences, receiving as little as four months of community service for
the Salvation Army. But Brigham was the classic dupe, knowing nothing
and hence having no names to deal: he drew the mandatory minimum, ten
years. Of this outcome, the federal appeals judge, Frank Easterbrook
(my brother, who was in no way involved in the preparation of this
article) wrote, "Meting out the harshest penalties to those least
culpable ... accords with no one's theory of appropriate punishments."
Congress reduced the sentence inversion problem in 1994, but the new
formula basically only helps people whose prior records were spotless.
There remain cases in which the low level offender receives worse
punishment than the high level crook, raising the question of whether
current sentencing rules have replaced old forms of inequality with
new ones.

Adopting a system of mandatory minimums, no parole, and broad
prosecutorial power had a rational purpose. For the dangerous felon
who has committed genuine crimes, the new system ratchets up the legal
pressure like crazy. Prosecutors have made skillful use of their new
powers in cases of dangerous crime, an important reason the system has
gotten so much better at getting career criminals off the streets.
But, from the standpoint of fairness, what is striking about the new
system is that it makes connections, community standing, and
establishment attorneys even more of an advantage than they were before.

Important to understanding the sequence of incrimination is that much
of it happens off the books, in private meetings in the prosecutor's
office. No judge supervising, no jury listening, and no public record
of newspapers to expose. Bargaining sessions with prosecutors are
normal and probably unavoidable to keep the system functioning, but
they present an opportunity in which the defendant from an
upper-quarter background can quickly make the case to have drug
possession or similar minor offense excused. For serious crimes,
prosecutors come down equally hard on everybody. Lesser crimes are a
different matter--and it's lesser crimes that are generating the
imprisonment boom.

IMAGINE TWO PEOPLE charged with the same level of minor drug
possession arriving at a meeting with the prosecutor. One is a
high-school-graduate day-laborer accompanied by a public defender who
has had only a few hours to prepare. The other is a college grad with
a nice house, a good job, polite bearing, and a big-firm lawyer who
has memorized every slight imperfection in the police report.
Expensive lawyers can backfire; prosecutors may resent a hotshot
attorney while respecting the public defender who deal with the system
day in and day out, just as they do. But given the choice, which of
these situations would you rather be in? "The well-off person will
hire a defense lawyer who comes from a top firm and is a former state
or federal prosecutor, and that person is going to have a much easier
time negotiating with his or her former colleagues than some
twenty-six-year-old assistant public defender," says Scott Wallace,
director of the National Legal Aid and Defenders' Association. The
upper-quarter defendant's conference may result in the charge being
dropped or bargained down to fines and probation. Sometimes this
happens for the poor or working-class person, too, but, judging by
incarceration statistics, not as often.

Income level and social status are increasingly reflected in the
question of whether the accused person even has a personal lawyer. On
TV, every character down to the local newsboy has a sharp-eyed
attorney exploiting loopholes. In reality, federal statistics show
that 85 percent of defendants come to the bar as indigents, just
falling back on a public defender, is not a fate solely of penniless
ragamuffins. Most employed, married, God-fearing people in the working
or lower middle classes simply do not have the funds to retain private
attorneys who may charge $25,000 or more for a routine criminal case.

It doesn't help that public defenders' caseloads are larger than ever.
Funds for legal service programs are declining relative to the
increasing number of people being hauled into the dock. Public
defenders today carry 150 or more cases a year; some up to 500. That
means the typical public defender has about one working day, or often
as little as a couple of hours, per client. That's total time,
including investigation, preparation, and court appearances. A review
of the case file; followed by an attempt to get the prosecutor to
downshift the charge; followed by the advice to plead before trial
makes the outcome even worse--that is all many typical criminal
defendants receive. Attorneys for the sons or daughters of the
connected, in contrast, pull out all the stops. Schlosser has
chillingly written in The Atlantic Monthly that the daughter of
Rudolph Slate, the judge who sentenced Douglas Gray to life in prison
for buying a pound of marijuana, was herself later arrested for
selling the same drug. Instead of jail, she received sealed records
and, probably, probation.

THAT THE WAR ON CRIME has a dark side is certainly no secret. A few
states have recently cut back their mandatory-minimum statutes. The
Sentencing Commission, specifically designed to by cold-hearted, has
called on Congress for legal authority to soften overkill like the
100-to-one rule. U.S. drug policy directory Barry McCaffrey, a former
Gulf war general who is gung-ho on this subject as any human being can
be, recently said that "we can't incarcerate our way out of this
problem" and now advocates treatment rather than jail for low-level
offenders. Supreme Court Justice Stephen Breyer has said that
"mandatory sentencing laws should be abolished." Even Edwin Meese,
who, as Reagan's attorney general, was present at the creation of the
1986 law that spurred the incarceration surge, has said that the
mandatory-minimum concept "ought to be reviewed."

Yet Congress has taken no action on the Sentencing Commission's
request, while Bill Clinton, normally eager to feel people's pain, has
said little on the hardships caused by "appalling long" jail terms.
There remains a competition to see who can talk toughest about
crime--made easier by the knowledge that the senator's or
congressman's own children, or their campaign donors' children, are
unlikely to be the ones dragged away and locked into a man-made hell
for some small moment of temptation or misjudgment.

Vietnam-era conscription was not abolished until the government ended
student deferments and adopted a pure lottery system. Once the draft
imperiled children of the prosperous--and of members of Congress--it
was quickly legislated out of existence. The all-volunteer military
system took its place, and those who did volunteer were afforded much
better conditions. The parallel here is obvious. Even considering that
the affluent commit fewer crimes, if the criminal justice system began
locking up the children of the suburbs for drug possession with the
same enthusiasm with which it now locks up the children for the poor
and working class, the howling for sentencing reform would be deafening.

During the '80s, when violent crime was escalating, it was reasonable
for society to react harshly. It was, perhaps, even defensible for the
law-abiding person to think that, if some people suffered unjustly
under a severe sentencing regime, that would be preferable to a system
hat allowed violent predators to walk free. But, now that violent
crime is in the decline and the system has become efficiently focused
on locking up the predators, the moral equation has changed.

Everyone benefits from the reduction of crime in the streets, but,
measured by time served, only average people are paying the costs. We
should either lock up the favored, too, or revise the sentencing
process to render it humane.
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MAP posted-by: Richard Lake