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High Time

Thousands of Crack Felons Are Getting Out of Jail Early—
and That’s a Good Thing

by Brendan Kiley

Lee is a slim, white-haired, 60-year-old, African American Vietnam veteran who recently served seven years in prison because an undercover cop near Seattle's Greyhound station offered to sell him 2.5 grams of crack cocaine. Lee took the bait and he was released this January. If he had purchased 2.5 grams of powder cocaine, he wouldn't have been put away for nearly as long.

The penalties for crack have been unfair since Congress passed the Anti-Drug Abuse Act in 1986. Arguably driven by the fear of young black men high in the ghetto—the same fear of black men hopped up on cocaine and marijuana that helped inspire the drug war 50 years earlier—the sentencing guidelines for crack cocaine, a drug popular with black users, were made 100 times worse than for powder cocaine, a drug popular with white users. The "100-to-1 ratio," as it became known, was among the most glaring injustices of the US drug war.

Here's how it worked: If you were holding crack cocaine, federal sentencing guidelines said less than five grams could land you in prison for a maximum of 20 years, and 50 grams could land you in prison for life. But if you were holding powder cocaine, up to 500 grams carried a maximum sentence of 20 years. A federal life sentence wasn't even an option unless you were holding 5,000 grams of powder cocaine (or had exacerbating factors like a serious criminal history or a gun charge).

That changed last week, and more than 12,000 people—85.1 percent of them black and with an average age of 36, according to a memorandum from the US Sentencing Commission—are now eligible for early release. Judge Patti B. Saris, chair of the commission, wrote in the memorandum: "While there is a spectrum of views on the commission regarding mandatory minimum penalties, the commission unanimously believes that certain mandatory minimum penalties apply too broadly, are excessively severe, and are applied inconsistently across the country." Looking at the data, it's glaringly obvious what Judge Saris means by "applied inconsistently across the country." The district court of eastern Virginia, mostly a suburban district with no major metropolitan areas, has 884 inmates eligible for early release under the new guidelines. The district court of central California, which includes Los Angeles, has 138. Western Washington, which includes Seattle, Tacoma, and Olympia, only has 56.

"The important thing for me in the feds reevaluating this policy is striking at the race and class differentials in the drug laws of this country," Lee said the other day while sitting near Third Avenue and Pine Street, handing out clean syringes and crack pipes. Lee now works for the People's Harm Reduction Alliance (popularly known as the U-District needle exchange), doing outreach in Seattle's drug markets to prevent the spread of HIV, hepatitis, and other diseases.

"The failing of the justice department is glaring," he said after handing three packages of syringes to a middle-aged, glassy-eyed Latina woman. "What do we get as a community for putting someone away for 10 years for a few grams? We lose that person's energies; we lose their possibilities. Then, 10 years later, we gain somebody who's been out of the loop, who's just struggling to keep up. We rob people of their independence and we rob them of their adulthood. The only people who make out are the poverty pimps, the ones who make their living off people being dependent on the system."

It's not just dealers, users, and defense lawyers who support the sentencing change—even Republican prosecutors support it. "It's about time that this sentencing injustice was corrected," King County prosecutor Dan Satterberg (a Republican) said by e-mail. "The difference between powder cocaine and crack cocaine is insignificant—a little baking soda, ammonia, and a double boiler." But "the impact on racial disproportionality and public perception of racism in the justice system, in contrast, was enormous."

Satterberg added that Washington State law is not nearly as harsh as that "misguided act of Congress" in 1986. Since 2008, King County has allowed people charged with cocaine possession to make a plea for a misdemeanor instead of entering the more punitive federal system. In the past five years, the percentage of Washington State inmates serving time for drug crimes has fallen from 22 percent to 9 percent.

That's what happens when you elect good, sensible people to be your local prosecutors.

As a result, the Ninth Circuit (including California, Nevada, Arizona, Oregon, Washington, Idaho, Montana, Alaska, and Hawaii) contains 483 crack prisoners who are eligible for early release, or just 4 percent of the eligible national population. In contrast, the Fourth Circuit (Maryland, Virginia, West Virginia, North Carolina, South Carolina) has a whopping 3,096 prisoners eligible for early release.

Eastern Virginia alone has almost twice as many prisoners eligible for early release as the nine states of the Ninth Circuit combined. How did eastern Virginia get so many crack prisoners and the West Coast so few?

"I don't have a good answer for that," said Michael Nachmanoff, a federal defender in eastern Virginia. "Even within the federal government, you see different priorities that reflect the region of the country... Anyone who practices law knows eventually that all courts are local." Nachmanoff has testified before Congress and argued before the Supreme Court about the injustice of crack cocaine versus powder cocaine sentencing and considers the new guidelines a big step in the right direction.

"For many inmates, the next two to five years have changed in an instant," he said. "It has a real-world impact on their morale and returning to their community. It doesn't mean there won't be struggles or bumps in the road. But they've gotten a break from the federal government, and they're going to go out with a better attitude and respect for the legal system."

Not everybody serving time for crack- cocaine charges will see relief. In the past week, I've corresponded with several prisoners doing time for crack cocaine (Crandall Edmonds, a 26-year-old who's been incarcerated since he was 19; Tonya Patricia Jackson, serving a 10-year sentence; Danilo Suarez, serving an 11.5-year sentence) whose time won't get reduced for a variety of reasons: They were caught with too high a volume of drugs, they had other criminal histories or gun charges, and so on.

Wasang Tomas Mock, who is currently serving time at the McKean prison in Pennsylvania, wrote in an e-mail to me:

I was born in Dominican Republic and my mother brought me here when I was 10 years old. I went to school in New York City... I was 31 years of age at the time of my arrest. I was involved in this case by one of the co-defendant. He became an informant for the government... The law can't be bought but this person after I loss in court he went home free and just serve 1 month and a half.

Mock has been in prison since 1991.

After his shift handing out syringes and stems in downtown Seattle, Lee and I went to the Turf for a few cups of coffee. He gestured out the window to some people on the sidewalk. "These people need health care, education, economic opportunities," he said. "Eventually, you've gotta ask yourself what's the point of locking them up for so long. It's expensive; it's useless. Seriously—what's the point?"

This story has been updated since its original publication.