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Crack in the penal system.

At least as unusual as the October 19 and 20 uprisings in five federal prisons (and possibly more that we haven't heard about) was the fact that they were so widely noted. The Washington Post, The New York Times and USA Today all featured the story prominently. Newsweek and US. News and World Report ran articles discussing the probable link between inmate revolts and the Congressional rejection of reform of the wildly disparate sentences for offenses involving crack and powder cocaine.

American prisons and jails are anything but calm these days, but usually no one who counts notices. It's not just that prison violence has become so routine as to lose all journalistic value. It's also that most prison officials would rather suppress the bad news of casualties among guards and inmates than allow access to reporters who might give voice to prisoners' grievances. But the moment may have come when neither the press nor the prison brass can ignore the fallout from a decade of get-tough sentencing and incarceration policies that have stifled hope and whetted rage among state and federal inmates alike. This fall's season of discontent in the federal prisons may have drawn to a close; the "precautionary lockdown" at twenty-eight nonrioting prisons--down from seventy in the days after the uprisings-finally ended in early November. Eventually, though, the revolts may simply be recorded as the early tremors of a volcanic eruption.

So far the federal Bureau of Prisons has declined to identify with any specificity the immediate cause of the "disturbances." (That's the bureau's euphemism for clashes that started with more than a hundred prisoners setting fires and causing an estimated $1 million in damage to the Talladega, Alabama, Federal Correctional Institute and left ten staff members injured in the Greenville, Illinois, penitentiary.) But on-site reports from Alabama and Pennsylvania, where 150 inmates at the medium-security prison in Allenwood smashed windows and furniture and set off fire alarms for about an hour, supplied an explanation endorsed by many who work regularly with federal inmates. The spark that lit the tinder was the October 18 House vote (332 to 83) against equalizing federal sentencing laws that now punish possession and sale of tiny amounts of crack cocaine as harshly as trafficking in 100 times as much of the powdered form of the drug. Current law, for example, provides a mandatory five-year, no-parole sentence for the sale of both five grams of crack--an amount that California District Court Judge Terry Hatter described as "less than you can balance on your thumbnail"--and 500 grams of powder cocaine (a little more than a pound).

The burden of these disparities falls primarily on blacks, who in 1993, according to the U.S. Sentencing Commission, made up 88 percent of federal crack defendants; whites make up a slightly larger proportion (32 percent) than blacks (27 percent) of those convicted of selling powder cocaine. Consumers of crack are estimated to be split about evenly between blacks and whites. Many of the crack defendants are young; some are first offenders serving twenty- or thirty-year sentences; most are angry and frustrated. A more far-reaching Million Man March has been the continuing trek of young black men into the country's penal institutions--both federal and state--ever since mandatory sentences in general and harsh crack minimums in particular became profitable politics.

The revolts were eminently predictable. In fact, the Bureau of Prisons did predict them--in 1993, after disturbances in three institutions over the same disparities, and last summer in reporting to the Sentencing Commission on complaints to officials from inmates and their families. Families Against Mandatory Minimums (FAMM), a national organization that has been lobbying for sentencing reform, received mail and phone calls last summer from inmates and their relatives excited by a rumor that Congress would rectify what was perceived as a major injustice. Judge Richard Conaboy, a federal district judge in Pennsylvania and chairman of the Sentencing Commission, told The Washington Post recently that he was not surprised by the outbreaks, that he had been "forewarned that if something isn't done soon that there may be undesirable results."

He should know. He presided over the preparation of the Sentencing Commission's February report to Congress on the cocaine sentencing laws of 1986 and 1988, which targeted crack offenses so harshly. Severity, as well as disparity, had concerned Representative William Hughes when he added to the 1994 crime bill a provision calling for that study. Legislation passed in 1988 had mandated a minimum five-year sentence for the mere possession of five grams of crack, a penalty of unprecedented harshness. The commission (made up of seven members, including four Clinton appointees) held a public hearing on crack cocaine; solicited comments from the defense bar, the American Civil Liberties Union and prisoner support groups; and studied the unsuccessful legal challenges to the sentencing disparities brought in the federal courts.

The result was a unanimous report that Marc Miller, a law professor and former co-editor of the Federal Sentencing Reporter, calls "logical, reasonable, grounded in solid data." It concluded that "the 100-to-1 quantity ratio creates anomalous results by potentially punishing low-level (retail) crack dealers far more severely than their high-level (wholesale) suppliers of powder cocaine that served as the product for conversion into crack." While it did not specify the approach Congress should take in the future, the commission "strongly recommend[ed] against a 100-to-1 quantity ratio," and then in May proposed guideline amendments (this time in a 4-to-3 vote) equalizing penalties for crack and powder cocaine.

The Clinton Administration reacted with customary chaos to the commission's conclusions. Attorney General Janet Reno issued a pious statement in April in which she said, "I strongly oppose measures that fail to reflect the harsh and terrible impact of crack on communities across America." But she simultaneously hinted that some "adjustment" of penalties might be appropriate. Lee Brown, head of the Office of National Drug Control Policy, is reported to have said privately that he endorsed equalizing of the sentences, but he has not confirmed his comment. Internally, the Justice Department is divided; rumor has it that the civil rights division would be in favor of change, but federal prosecutors have come out strongly for maintaining the status quo. Clinton voted with his pen on October 24 by signing the bill maintaining the current sentences.

The White House seems to have decided that there were fewer political negatives in aligning with crime-hawk Republicans than with the Congressional Black Caucus and the American Bar Association. In doing so Clinton has "played the race card" at least as much as Johnnie Cochran did in the O.J. Simpson trial. Those who defend the current sentencing structure maintain that crack is more associated with violence than are other drugs or forms of cocaine, and that the disproportionately racial impact of the laws is simply a reflection of who sells and uses it. But Clinton knows better. He knows that most drug violence is a function of competition for a volatile and illegal market and that, as the commission put it, "studies report that neither powder nor crack cocaine excite[s] or agitate[s] users to commit criminal acts and that the stereotype of a drug-crazed addict committing heinous crimes is not true for either form of cocaine." He also knows that most crack defendants are street-level dealers selling small amounts, many doing so at least in part to support their own habits, and that most of that group are young and black and poor. Jesse Jackson was surely right when he said recently, "There are those inside the White House who are willing to write off the black Democratic vote to look tough to white Republican voters."

In fairness it must be said that Congress originally meant to target big-time crack dealers, regardless of race, when it passed the original law in 1986. That was, after all, when the euphoria-producing little rocks were just hitting the streets of American cities and every politician wanted to send some protective, reassuring message to his or her constituents. But if racist intent could not be proved then, it must be presumed now. The law has been tried and found guilty of assault on the best years of the lives of an outrageously racially skewed sample of young men. Yet Congress and the President have openly declared their indifference. Given the demise of Jim Crow racism, it is hard to imagine a more blatant form of the modern kind.

It would be reasonable to assume that reports of the actions by Congress and the President--not to mention the Bureau of Prisons' first reactions to the uprisings, which were to have press releases issued at every prison site emphasizing that "there is no threat to the community" and to announce shortly thereafter the removal of the "ringleaders" to isolated maxiprisons--would further alienate those entangled in the criminal justice system. But more concrete and devastating consequences probably await us.

Bills have passed in both the House and Senate--usually called the STOP legislation for the Stop Turning Out Prisoners Act--that would sharply restrict prisoners' legal remedies against their keepers, no matter how brutal their treatment or unconstitutional their environment. Sold as a way to keep frivolous complaints about prison food and living conditions out of the courts, these bills in fact would cripple the federal courts' ability to protect prisoners' rights to be free of cruel and unusual punishment. The legislation would terminate the consent decrees entered into in many states where successful prison-condition suits have enabled corrections officials to demand from legislative bodies the resources to clean up their act. It would also prevent federal courts from acting quickly to curb a health or security emergency in the prisons. All that remains to enact this fiendish law is a conference committee markup and a presidential signature.

Representatives of prisoners' rights groups and the defense bar are expecting the worst (although if Clinton vetoes the appropriations bill that includes the Justice Department, the STOP legislation will go down, too). "Passage of the STOP legislation can only . . . guarantee that the Attica uprising [the rebellion in a New York State prison in 1971 in which forty-three people were killed] will be a thing of the future as well as the past," wrote Alvin Bronstein, executive director of the National Prison Project of the A.C.L.U., to The New York Times. And Scott Wallace, special counsel to the National Legal Aid and Defender Association, says, "Congress is saying to prisoners, `Not only do you get long sentences, but you will have no rights while you're there.'"

If the prisons blow, though, it won't be just because the STOP legislation is the last straw. It will be because for a decade now sentencing and prison policy have been cutting deeply into inmates' fundamental dignity, denying them hope of finding a better life and becoming better people. Julie Stewart, president of FAMM, says the inmates they are in touch within both state and federal prisons--are most concerned about the end of educational opportunities: the chance to take college courses and the threatened ending of Pell grants to pay for them.

So, are we to witness future uprisings on a larger scale than we've yet seen--or perhaps more passive resistance, civil disobedience like work stoppages and strikes? Has the past decade's enormous increase in imprisonment produced a large enough core of politically aware, well-educated, well-organized people inside to orchestrate state- or regionwide actions? Means of communication from prison to prison are much improved recently: The FAMM newsletter now goes out to 30,000 subscribers, the magazine Prison Life is widely read, and surely a few of those criminal computer nerds will still manage to use e-mail. It seems just possible that orchestrated inmate resistance to injustice in criminal justice will be the next wave of the civil rights struggle.

Diana R. Gordon teaches American politics and criminology at City College and the CUNY Graduate Center She is the author of The Return of the Dangerous Classes: Drug Prohibition and Policy Politics (Norton).
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Title Annotation:disparity in crack and powder cocaine criminal sentences
Author:Gordon, Diana
Publication:The Nation
Article Type:Cover Story
Date:Dec 4, 1995
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