Smarter Sentencing Act of 2013: Just as dumb as the Controlled Substances Act of 1970

The sponsors of the "Smarter Sentencing Act of 2013" may be forgiven for succumbing to the temptation to label their bill--and by association, themselves--as "smarter". A label does not change the nature of a bill, however. This labeling attempt should have been preceded by an attempt to make all our drug laws smarter.

Admittedly, the Controlled Substances Act of 1970 (CSA) was one of the stupidest laws ever written, unless the intent of the law was to imprison millions of Americans and give the prison industry an unfunded subsidy. CSA gave a subsidy to the prison industry by increasing the number of prisoners geometrically. The prison population of U.S. federal prisons (the prisons directly affected by CSA) has increased by 800% in the last 30 years. There are now 8 times as many people being held in federal prisons as there were in 1983, or about 2.3 million people total.

The authors of the Smarter Sentencing Act must have analyzed CSA and drawn the following conclusions:

• CSA was stupid because the determinate sentencing rules it established were too severe.
• CSA was stupid because the number of potential prisoners created by the law was higher than the number of prisoners who could be accommodated by federal prisons.
• CSA was stupid because it costs our citizens too much to put 2.3 million people in prison and keep them there year after year. Annual costs are now about $80 billion.

These conclusions are obviously valid; they are the issues addressed by the "Smarter" Act of 2013. The authors of this bill should not consider themselves "smarter" because they recognize these facts, however. The facts about prisons and incarceration are freely available to anyone who can read. They have been available for years. The statistics have gotten much worse, but the underlying facts remain the same.

True or false: CSA was stupid because the determinate sentencing rules it established were too severe

The sentences handed out under the determinate sentencing rules were too severe, but that wasn't the only problem, or even the most important problem. The law itself was fatally flawed. The rules required judges to sentence non-violent offenders to terms of many years in prison. Many of these offenders were not the habitual criminals that the law was intended to catch. Instead, they were individuals caught up in criminal activities because of ignorance, poverty, and lack of opportunity. Imprisonment did not help these people. In many ways imprisonment made their problems worse, because citizens returning from incarceration find it more difficult to find employment, housing, and opportunity than they ever did before.

These fundamental issues are not addressed by the new "smarter" act. Reducing determinate sentences by 50% may save money but it is a cruel hoax perpetrated on people who need our help.

True or false: CSA was stupid because the number of potential prisoners created by the law was higher than the number of prisoners who could be accommodated by federal prisons.

The intent of the supporters of CSA was to put more people into prison. They knew this would cost more money, but they were pleased by that because they would be beneficiaries of the money spent on housing more prisoners. The stupid people were the backers of the law, who did not foresee the problems associated with it. These same people are now backers of this new, "smarter" law. They believe that they improve the law by tweaking it. They can't.

Meanwhile, the people who benefit from mass incarceration will still oppose any change to existing conditions.

True or false: CSA was stupid because it costs our citizens too much to put 2.3 million people in prison and keep them there, year after year. Annual costs are now about $80 billion. 

Undoubtedly true. Whether we will see fewer people in prison by reducing their determinate sentence rules is not clear, however. If a person serves two years in prison instead of five years, will he or she have a better chance of staying out of prison? Returning citizens will face the same barriers to living normal lives as before, under the "stupid" CSA. They will still find it harder to get a job. They will still find it hard to pay off the extravagant fines imposed by CSA which are untouched by the "smarter" bill.

Under the CSA, a crime that deserves 15 years incarceration carries a fine of $25,000. Where will a returning citizen acquire such a sum? Only through more illegal activities, beyond doubt. CSA is stupid because it forces returning citizens into a life of crime to repay the fines it imposes on them. The "smarter" law does not address the issue of these fines and therefore is no smarter than CSA.

Racism in CSA and "Smarter" law.

Fifty percent of prisoners in the US are either African-American or Latino. An African-American male is 7 times as likely to be in prison as a white male. A Hispanic male is 2 1/2 times as likely to be imprisoned as a white male. These statistics strongly argue that there is a racial disparity in our justice system. A smarter sentencing law would recognize this disparity. A law that does not take into account this disparity cannot reasonably be considered smarter, no matter what its proponents call it.

ACLU support for "Smarter" law.

The ACLU supports the new, "smarter" law. This is a compromise position, no doubt. There is no compromise position between right and wrong, however. The ACLU should not support half-way measures, such as this  one, that only delay the institution of real reform.

Racism and racial profiling in the District of Columbia

Racism is a disease that infects our whole society. This infection has caused our laws to change so that prison terms are vastly longer than they ever were before. Our prisons and courts are filled with non-violent drug users whose primary offense is the color of their skin.

Approximately as many whites use illegal narcotics as African-Americans, but 90 percent of people arrested for drug offenses in DC are African-American.¹ In DC, an African-American is nearly 4 times as likely to be arrested for drugs as a Caucasian. This is no accident. When Metropolitan Police officers go looking for arrests, they don't go to Georgetown, they go to Anacostia, even though as many people use drugs in one area as in the other.

To their credit, the DC Council has been addressing this problem, most recently by decreasing the maximum jail-time for first-time marijuana offenders and proposing to legalize possession of marijuana. They now continue their efforts by proposing the Record-Sealing for Non-Violent Possession of Marijuana Bill. This bill is necessary because many people are currently permanently handicapped by their criminal records, which make it difficult for them to find employment, rent an apartment, or get a job. This bill seals the criminal records of people whose only arrest was for possessing marijuana. I am particularly gratified to see that the Record-Sealing bill has seven co-sponsors. These lawmakers are willing to stand up be counted in the fight against racism. The D.C. National Lawyers' Guild strongly endorses this bill.

I can only find one fault with these bills. They don't go far enough. The epidemic of racism has thoroughly infected our justice system for years. The effects of this epidemic are insidious and far-reaching.

Anti-drug laws, combined with determinate sentencing laws, still prescribe preposterously long sentences of up to 30 years in prison for non-violent offenders.² The laws also exact enormous fines. When they are released from prison, ex-offenders—returning citizens—often have huge debts and no way to repay them.

The plight of our fellow citizens goes beyond drug offenses, however. The same study that found African-Americans accounted for 90 percent of drug arrests in DC also found that they accounted for 80 percent of disorderly behavior arrests, 70 percent of traffic arrests, and 80 percent of arrests for "other assaults", a category that includes the least serious kinds of assaults.³

Legalization of a behavior does not automatically lead to fewer arrests. Instead, it appears that police find new causes for arrest. For example, in 2010 the Council removed "loud and boisterous" behavior from the "disorderly conduct" statute. In 2011, "disorderly conduct" arrests decreased by 16%, but there was no discernible decrease in overall arrests, suggesting that police officers may have found other pretexts to make arrests.⁴

These arrest figures strongly suggest that African-Americans are being targeted by police on the basis of racial characteristics, so-called racial profiling. To counteract racial profiling, we need to do more than pass this one bill affecting one small category of non-violent crime. We should extend this bill to all those who have criminal records for minor crimes. We need to give returning citizens a chance to rebuild their lives and support their families.

The entire War on Drugs has attacked the problem of drug use by treating the symptom—drug use itself—instead of the causes. Sealing arrest records, while a good idea in itself, only treats one symptom of the problems caused by racism. The problem starts with selection of targets for questioning by police—racial, or bias-based, profiling.

While police regulations contain a definition of bias-based profiling⁵, the D.C. Code does not. The Code lists only “discriminatory treatment” as a cause for investigation by the Police Complaint Board. This vague description should be amended by adding a detailed definition of bias-based profiling, as well as by providing a private right of action for any citizen who feels he or she has been victimized by it.⁶

Finally, the District of Columbia should work toward better relations between the community and the police department by establishing an independent Inspector General of Police, similar to the office of Inspector General created by New York City.

We cannot prevent every injustice caused by racism. But we can limit the number of injustices. The D.C. Council has the opportunity to do so. Will they take advantage of their opportunity?

1 Washington Lawyers' Committee for Civil Rights and Urban Affairs, Racial Disparities in Arrests in the District of Columbia, 2009-2011: Implications for Civil Rights and Criminal Justice in the Nation's Capital 13 (2013).

2 D.C. Official Code §48-904.01.

3 Id., 18, 20, 22.

4 Id., 21.

5GO-OPS-304.15 (March 19, 2007).

6See NYC Local Law 71 for an example of how NYC has dealt with the problem of bias-based profiling.

You Can Make Money on the Internet

You can make money on the internet. Perhaps you have a business that could use some extra sales. Perhaps you have a hobby that you love to write about. Or perhaps you have a skill that needs to be promoted.

The internet can help you with all these things. Furthermore, the internet can help you negotiate the tough times of rapid change that we're going through right now and will most likely be going through for some time to come.

What makes the internet so valuable?

The internet dissolves boundaries of time and space. In the recent past, it took a letter up to a week to reach its destination, at a cost that increased dramatically if you wanted the letter to get there faster. Now, thanks to the internet, no matter what their destination, letters arrive a few seconds after you send them. Since time is money, you should be able to use this instant communication to your advantage.

It used to be that your business had to have a good location to make money, and for many businesses this is still true. But if you can locate your business on the internet, all locations are the same. If you think that you have to have a well-known brand or a catchy sounding internet address to succeed, consider some of the brands that have succeeded. Who ever heard of Yahoo before the company hit it big? Google used to be an obscure mathematical term. Amazon was the name of a large river. All these companies are progeny of the internet, and they are among the most successful companies in the world.

Many internet services are free, or almost free.

1. Webmail. Webmail is email that lives on the web. I use google's webmail, gmail. Its main advantage is that you have plenty of space on their server so you never have to throw away a message--you know, the message that you thought you were finished with but turned out to have valuable information. Gmail is free, although there are advertisements that appear unobtrusively in the upper right hand corner of the message page. The ads are interesting in themselves. They are posted by a google product called adwords. If you read them in relationship with your messages, you will notice that there are key words in the message that trigger the ads. Not all of them make logical sense, but many do, and when they do, you will find you are looking at an ad intended specifically for you.

A word of warning about email. This is a powerful tool for keeping in contact with your customers and informing them of new products. But it is also the primary method many people have for keeping in touch with friends and conducting business. If you send out an occasional email to your mailing list, you will probably be accepted or even welcomed. But if you cross the line and send out too many messages, especially if they have nothing new or important to say, your emails will be labeled as spam and cut off. So be careful to send actual communications and not just boilerplate advertisements.

2. blogger.com (blogspot.com)--this is Google's free blogging service. Once you have a gmail account, you can also have a blog, also called a weblog. It could also be called a diary, but that sounds old-fashioned, doesn't it? The idea is to attract a group of followers and give them daily reports on your business, or your hobby, or whatever. On the internet, you have access to millions of potential customers, but you also have thousands of competitors, so you must promote your business constantly. Weblogs are a good way to do that.

Weblogs are better than direct emails for this purpose because people do not expect personal communications from weblogs. They go to your site to find the latest in what you're doing. But you must make your weblog attractive to them so they keep coming back. Keep updating the material at least once a week. If that seems like too much work for you, perhaps you should avoid starting a weblog.

3. Facebook. Facebook is the leader among a group of social networking programs. It currently has 250 million users and continues to expand rapidly. It is particularly popular in the US and Brazil, but has users all over the world. Most people use Facebook to network with their friends and make new ones. The level of communication is very personal, with comments like, "I just got to work" or "I had a great vacation". But there are also opportunities to make business connections. You can create a business page on Facebook and you can ask all your contacts to become "fans". They will then receive all the updates you put onto the business page.

Facebook has advantages as well as drawbacks. The main drawback is that you need to get all your customers to sign up. Of course, with 250 million users on Facebook right now, the chances are good that some of your customers are there already. Besides, isn't this is the major problem you have right now? Getting people to become customers?

Facebook's primary advantage is that it places your business in a comfortable environment and makes it easily accessible to your clients. Facebook makes it easy to put interesting content on your business page. It also has advertising that targets its users, which will be very cost effective if the people on facebook are potential customers.

4. Another free resource is YouTube. If you have the ability to create videos, this could be very useful for your business. A big advantage of the internet is you don't have to squeeze all your information into a 30-second time slot. Once again, the internet expands the boundaries of time and space. Your video can be as long as you want. You can make infomercials and post them without any extra charge for their length. One possibility would be to use YouTube as a trial audience. Find out which parts of your video are effective and which are not.

It would be better, perhaps, to store your videos on YouTube and have your customers access them from somewhere else. YouTube users tend to enjoy celebrity gossip and crude humor, so you might not care what they think about a serious business proposal. But YouTube lets you put a video onto a web page or a blog or a Facebook page just as you would put a picture there. So you can control the way a person watches your video and you can control the context, asking your own questions and choosing your own audience.

ACLU court case brings prison reform to Mississippi

[this case is discussed in greater detail here]

In 1989, two HIV-positive prisoners brought a pro se law suit against the Mississippi Department of Corrections ("MDOC") for failing to provide them with adequate medical care at Parchman Farm. After losing their case, they won on appeal (Moore v. Mabus, 976 F.2d 268 (1992)) the right to receive prescribed medical care and be represented by an attorney. This was only the beginning of their troubles, however. MDOC continued to provide inadequate treatment and their court-appointed attorney refused to provide adequate representation.

In 1999, the ACLU filed a motion to substitute counsel on behalf of 110 HIV-positive prisoners at Parchman. Once again, the courts were reluctant to assist the prisoners. The ACLU enlisted the aid of Holland & Knight pro bono  attorneys. They also began negotiations with Robert Johnson, the newly appointed commissioner of MDOC, to remove their clients from segregation. Johnson assembled a task force of local groups and prisoner family members to discuss the issues and ended up agreeing with the prisoners' representatives Johnson then instituted regulations that integrated the HIV-positive prisoners with the general prison population.

It wasn't until 2007--after numerous trials and more discussions--that MDOC began instituting reforms for the entire prison. These reforms included a clearly defined incentive program that permitted prisoners to earn their way out of segregation--solitary confinement--and into the general population. Prisoners were permitted to take classes and play sports. General mental health services were greatly expanded.

Conditions at Parchman Farm in 1992 were similar to conditions at Red Onion Prison in 2013. Neither prisoners nor lawyers gave up trying to better their conditions over 15 years of litigation, negotiation, and retrenchment. We do not know the extent of prisoners' rights violations at Red Onion. The first step, however, should be a law suit on behalf of prisoners undertaken by the NLG and whatever other agencies or pro bono  attorneys are willing to join.