The past is never dead; in
fact, it’s not even
past. – William Faulkner
In an incredible (and true) story, a 19 year-old
New York University undergraduate student was recently arrested
and charged with committing
three felonies, including criminal sale and possession of a controlled
substance, and criminal sale of a controlled substance on or near
school grounds – each charge carrying a maximum sentence of 25
years in prison. The undergraduate student sold high-grade marijuana,
cocaine and hallucinogenic mushrooms to an undercover New York
City police officer on eight separate occasions from the lobby
of her dormitory. But that’s not the incredible part.
Despite facing up to 75 years in prison for her offenses, the
student, a white female from a wealthy family, will actually never
see a prison cell if she satisfies the gracious terms of the
deferred prosecution agreement brokered between a Manhattan District
Attorney and the defendant’s private attorney. The sweetheart
deal – brace yourself for this one – includes 10 months at a drug
rehabilitation center in Idaho followed by 8 months of work or
school, and 5 years probation. Moreover, she will be permitted
to plead guilty to lesser charges (perhaps misdemeanors) in 2006,
pending successful completion of her “sentence.” Perhaps most
importantly, her case was handled by state, rather than federal,
authorities, allowing her to avoid severe federal mandatory minimum
laws that would have likely resulted in a lengthy prison sentence.
What is striking about this story is that the
district attorney treated this white offender’s crimes as a public health problem
requiring treatment and rehabilitation rather than incarceration – an
approach that should be available to all drug using offenders on
the same terms. This story presents a vivid illustration of the
fact that the architects of America’s “war on drugs” never contemplated
ensnaring wealthy, white, female, college students in their dragnet.
In America’s inner cities, however, where the “war on drugs” is
waged against low-income Black and Brown people, mass incarceration
rather than treatment and rehabilitation guides police drug enforcement
strategies. In fact, the criminal justice system harbors a deeply
held belief that, unlike many white offenders, Black and Brown
offenders are beyond rehabilitation.
But America’s present obsession with the mass incarceration of
Black people is by no means a recent phenomenon. Indeed, as historian
David Oshinsky notes in his compelling book, Worse Than Slavery,
America’s endeavor to warehouse Black folks in cages has deep historical
roots that can be traced back to the conclusion of the Civil War.
In 1865, the South attempted to rebuild its
bankrupt economy after it suffered a humiliating defeat at the
hands of the North. Institutions
like Mississippi’s Parchman Farm were quite literally transformed
from slave plantations into prisons, intended not to rehabilitate
offenders, but to produce revenue for a state that had lost its
greatest economic resource: free Black labor.
In an attempt to regenerate the South’s labor supply by incarcerating
as many Blacks as possible, Southern legislatures quickly passed
acts known as “Black Codes,” which listed specific crimes for free
Blacks only, including “mischief” and “insulting gestures.” Not
surprisingly, through enforcement of the Black Codes conviction
was almost always imminent for Blacks accused by white men or women
of the slightest offense.
As convictions mounted, Southern jails turned
Black. Once incarcerated,
the labor of former slaves was “leased” to private parties, often
to perform the same tasks as they did during slavery. Local sheriffs
made profits responding to “crime waves” by arresting Blacks, judges
were awarded cash bonuses for convictions, jails profited from
charging leasing fees and planters profited from Black labor. Mass
incarceration became the “cash crop” of the South.
Of course, white men rarely sent fellow white
men to jail even for serious crimes like murder, and when they
did, it was not for
long. Southern culture taught that to deny a white man his liberty
was to treat him like a slave. And to deny a white female her
liberty, irrespective of her crime, was virtually unheard of.
Against this historical backdrop, it is not
surprising that today, in the era of the “war on drugs,” Black people comprise nearly
half of our nation’s swelling incarcerated population of 2.1 million
people, notwithstanding the fact that Blacks represent only 13%
of the country’s overall population.
These absolute numbers translate into catastrophic
rates of imprisonment for Black men, with 1 in every 21 adult
Black men incarcerated
on any given day. For Black men in their late twenties, the figure
is 1 in 8. Given the current trends, The
Sentencing Project reports, 1 in every 3 Black males born today
can expect to go to prison in his lifetime.
While the incarceration rate is lower for Black
women, who represent the fastest growing imprisoned population,
the racial disparities
are equally dramatic. Black women comprise nearly half of the
nation’s incarcerated female population of about 150,000. If current
trends continue, 1 in every 18 Black females born today can expect
to go to prison.
Federal sentencing guidelines contribute to
the over-incarceration of the Black community by requiring harsher
penalties for drug
offenses that Blacks are more likely to be convicted of. These
guidelines treat crack cocaine as being one hundred times worse
than powder, despite the fact that each gram of powder produces
.89 grams of crack. Possession of 500 grams of powder cocaine,
but only 5 grams of crack, results in a mandatory minimum sentence
of 5 years.
Among all controlled substances, crack is the
only one with a federal mandatory minimum sentence for a first
offense of simple
possession. As a result, crack users and dealers, who overwhelmingly
tend to be Black, receive more severe penalties than users and
dealers of powder cocaine, who tend to be white.
As intended, targeted law enforcement techniques
have resulted in Blacks constituting more than 80% of crack defendants,
the fact that approximately two-thirds of drug users in the general
population are white. Consequently, 57% of all drug offenders
in state prison, and 41% of federal drug offenders, are Black.
Kemba Smith was a casualty of America’s “war on drugs.” Like
the New York University student, Kemba was a college student in
1995 at Hampton University. But unlike the New York University
student, Kemba never handled or sold drugs but was in an abusive
relationship with a drug dealer. Unlike the New York University
student, Kemba is Black, which is a critical distinction.
spent months trying to make a case against Kemba’s boyfriend,
but he was murdered before police could catch him. Incredibly,
Kemba was sentenced under federal sentencing guidelines to
nearly 25 years in prison for her “involvement” in the crack
cocaine conspiracy. Although prosecutors admitted that she
had never sold drugs, Kemba was held accountable for the crack
cocaine distributed by her boyfriend. It wasn’t until President
Clinton granted Kemba’s petition for clemency that she was
finally freed after serving 6 ½ years of her sentence.
The contrast between the stories of these two
young women – one
white, one Black – and the criminal justice system’s treatment
of them is as stark as day and night. It is the result of policies
that wage “war” on one community and treat “epidemics” in another. Until
we expose the color of justice, the color of incarceration, and
the harmful racial undercurrent of our criminal justice philosophies,
we will continue to be a nation that attacks its people of color,
pardons the transgressions of the privileged, and builds an economy
that thrives upon caging Black bodies.
Ryan Paul Haygood is an attorney in New York City.