California must lead the way in prison reform and rational drug policies

No one in America exemplifies the corrupt nature of mass incarceration better than Jerry Brown, Democratic Governor of California. Like the rest of our prisons in America, California's prisons are instruments for the oppression of black, brown, and youthful Americans.

The U.S. Supreme Court has ruled that overcrowding in prisons is a violation of the Eighth Amendment prohibition of cruel and unusual punishment. A three-judge panel has informed the state of California that it needs to reduce prisoner population to 137.5% of the prison system's designed capacity.

California's real problem is not a shortage of prisons or an oversupply of prisoners. California needs to reform its laws to make fewer criminals out of non-violent citizens. The state is not alone in this problem. Most of the states have the same one. But California has been ordered by a court to solve its problem, at least partially, yet refuses to do so.

Actually, only Governor Brown refuses to take action. The state legislature passed a law that would have made non-violent drug offenders eligible for early parole, but Brown refused to sign it. Instead, he proposed to spend more money on prisons to lock up thousands of people who should never have been imprisoned in the first place.

California's drug laws are irrational. The state locks up people for possession of small amounts of drugs, but it looks the other way as marijuana growers in the state grew a crop worth at least a billion dollars in 2014. Errand boys go to jail. Kingpins don't.

Brown is unduly influenced by the California Correction Peace Officer’s Association, the prison guards' union. It's understandable, since they paid $2 million for his reelection. Like the honest politician he is, he repays political favors.  The union has only one agenda, to put more prisoners in jail for longer so there will be more jobs for guards and more dues for the union.

In pursuit of this agenda, the union has opposed any sentencing reform. Even Democratic politicians like Brown favor long sentences, and California has one of the strictest sentencing structures in the world. Its "three strikes" law results in life sentences for misdemeanors as trivial as stealing a pizza. Its determinate sentencing laws can result in years spent in prison for relatively innocuous crimes.

When pressed about his opposition to legalization of marijuana, Brown retreats into vague generalizations about how America will not be able to compete in the world if it legalizes this drug:

I do think America’s under a certain amount of competitive pressure. We like to think of ourselves as the leading power, and we’re an aging 4 percent of the world’s 7.2 billion people. So I think we have to stay alert and heads up. I don’t know if everybody’s going to pot that that’s going to be a positive path forward.

This kind of specious logic avoids the real problem of mass incarceration. All the damage that Brown mentions is vague, hypothetical, and unlikely to happen in the real world. Mass incarceration, where America imprisons more of its people, relatively speaking, is a real problem and it has been happening for years. Brown has been ordered by federal judges to reduce the number of prisoners in his state. His response is to say that there may be some kind of problem some time in the future. This response is nonsense.

Brown should lead the people of California, who have shown themselves willing to stand in the vanguard of rational drug and sentencing policies. He should cease to be a dead weight in the current of change.

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.

DC Councilman David Grosso sponsors forum on Criminal Justice System

On November 14, DC Councilman David Grosso, in cooperation with the ACLU, University of DC School of Law, NAACP, and Howard University School of Law, presented a forum on Race and Gender Disparities in the DC Criminal System. Members of the forum spoke on a wide range of topics, however.

The occasion for the forum is the publication of a report by the ACLU and the Washington Lawyers' Committee for Civil Rights and Urban Affairs. Several other forums have been held and more will undoubtedly be held in future.

Grosso has introduced several bills concerning criminal justice before the DC Council. One bill would legalize marijuana and set up a drug supply system to regulate the price of drugs. Most of the high price of illegal drugs stems from the difficulty in smuggling them into the country and evading police detection. Legalizing drugs would make drugs cheaper, although studies have shown that it would not cause drug use to increase. Another bill proposed by Grosso would make it illegal for a pregnant woman in prison to be placed in shackles. This bill is just common sense. Grosso deserves our applause for recognizing some of the ills of our society and trying to help rectify them.

Seema Sadanandan, a program director for the ACLU and a member of the National Lawyers Guild, was the most voluble member of the panel. She spoke persuasively about the need to change the tightly integrated system of laws that oppress the minority community. Sadanandan repeatedly invited members of the community to address the meeting, which a few of them did after the panelists completed their presentation.

The listeners heard some disturbing facts during the course of a two-hour forum, many of them from panelist Deborah Golden, Director of DC Prisoners' Rights Project. DC holds 50% of its prisoners in private prisons, information that is not publicized by the DC government. The private prison industry has aggressively pursued growth policies which have included determinate sentencing laws and opposition to liberalization of drug laws, continuing the so-called War on Drugs, and passing harsh immigration detention laws, such as the one in Arizona.

One of the audience members noticed police observers at the rear of the auditorium and challenged the police to explain their tactics. A large portion of the audience loudly voiced its disapproval of DC police tactics in the minority community. The observers wisely stayed quiet and the moderator of the forum was able to restore order after a few tense moments.

Other audience members identified themselves as objects of police misconduct and told stories about youthful experiences and how they became fearful of the police. Returning citizens--people returning to the community after being incarcerated--told stories of how they got involved in crime and how they escaped from the throes of the justice system.

Some mention was made of how much money private prisons made--about $5 billion a year--and how their profits led to passage of bad laws. No one noted the fact that welfare payments were abolished at the same time that prison sentences got longer. The War on Drugs led drug offenders to be banished from public housing. Increased imprisonment made it harder to find a job. All of these pressures combine to make it difficult for minorities to lead normal lives even when they try.

Marijuana: The Harmless Weed

National Lawyer's Guild Testimony before the District of Columbia Board of Directors opposing the marijuana decriminalization bill, Section 102 (D.C. Official Code § 48-901.02)

For nearly a century in the city of Washington, DC, police have been arresting people for holding, smoking, or selling marijuana. The fact that the majority of these people are African-Americans is well-known. People who are in no sense of the word criminals have been sent to prison, sometimes for substantial sentences.

During the past 30 years, the situation has gotten worse. The country has been in the grip of law-and-order mania. Rather than look at the root causes of crime—poverty, discrimination, racism—our lawmakers have decided to put more people in jail, as if that would solve anything. It wouldn't solve anything because people who smoke marijuana are not criminals in the first place. The law makes them criminals, just as racial profiling makes people criminals.

There is a strong connection between racial profiling and marijuana. Studies of New York City's stop-and-frisk laws show that the most frequent result of stop-and-frisk is the discovery of small amounts of marijuana. Police target African-Americans, search them, and find marijuana. The discovery of even a small amount of marijuana may result in an arrest and a court appearance. For a person without the money to pay a lawyer, this could be a serious problem with life-long repercussions.

Now the DC City Council has come to its senses. They now realize there is something fundamentally wrong with punishing recreational use of a harmless—or even frequently beneficial—plant. But this bill is not the answer. It will decriminalize marijuana, but provides no place to legally obtain it. People who traffic in marijuana will still be criminals. Prices for the stuff will still be steep black market prices, reflecting the enormous risks taken by those who smuggle it and sell it.

This bill is a half-way measure, like permitting gay couples to have a civil union license but not a marriage license. That idea was so silly that a wave of laughter has already swept it from the books in more than 20 states. The proposed law on marijuana is equally silly, but it is also extremely harmful, since it retains criminal penalties for sale of marijuana and continues sending non-violent criminals to prison.

This approach has almost the same effect as the “safety valve bill” proposed by the conservative bill mill ALEC and supported by arch conservative David Koch. Rand Paul is sponsoring that bill in the U. S. Senate, S.B. 609. Surely this City Council can come up with something better than that!

This bill is no compromise measure. It leaves intact the system of injustice that has led to mass incarceration and open warfare in our streets during the shameful war on drugs, which is actually a war on our own citizens. Once we recognize that marijuana is not a harmful drug and that people who use it are no more dangerous than the millions who have a few beers while watching Sunday football games, we have no choice but to legalize it, fully and unconditionally.

There is an alternative to this bill, one which is much better for the community. This other bill addresses the real issues of drug use. This alternative bill was introduced by David Grosso. If enacted, Grosso's bill would levy a tax of 10 percent on recreational marijuana and a tax of 6 percent on medical marijuana. It would also authorize the Alcoholic Beverage Regulation Administration to issue licenses to recreational marijuana stores.

This alternative bill would save money the District now wastes imprisoning non-violent drug offenders. It would end the black market in marijuana and let marijuana users purchase the stuff from places that do not also sell Methamphetamine and Cocaine. This is especially important for our youths, who find it easier to buy illicit drugs than alcohol. We should take this opportunity to end the irrational drug policies of the past and start building a new, saner society.

Thank you for listening to us speak on this important issue.

ALEC: Profiteers in the War on Drugs

The American Legal Exchange Council (ALEC) has been convincing state legislators to adopt laws with mandatory, determinate sentencing guidelines for a long time now. ALEC started this project back in the 1970s, when people were panicked about the high crime rate.

Liberals were concerned about inconsistent sentences being handed out by different judges for the same crime. Politicians in both parties contended that the laws gave too much leeway for judges. Senator Edward Kennedy was an early advocate for determinate sentencing. Conservatives gave speeches about bleeding heart liberals and judges who were soft on crime.

States began replacing indeterminate sentencing laws with determinate sentences. Republican legislators vied with each other to see who could be toughest on crime. To many voters, being tough on crime meant getting tough with African Americans, whom many white people, north and south, believed to be a criminal class.  Such beliefs resulted in a disproportionate number of arrests and convictions of African-Americans: in 2000, according to records in seven states, 80-90% of drug offenders sent to prison were African-Americans.¹

ALEC has been pushing harsh sentencing laws since 1975. They were responsible for enacting “three strikes” and “truth in sentencing” laws in 27 states. Three strikes laws sentenced a person who was convicted of a third crime, no matter how minor, to life in prison without possibility of parole. Truth in sentencing laws replaced the discretion of judges with definite lower and upper limits for sentences. Prisoners could not be released before the lower limit, nor could they be released before serving 85% of the upper limit.

Truth in sentencing laws mandated higher sentences for drug offenders, and pushed the average time served for drug offenses in federal prison from 17 months to 47 months. The result of these "three strikes" and "truth in sentencing" laws was that drug offenders were more likely to spend time in prison than those arrested for murder, assault, burglary, or rape.²

ALEC is also responsible for the Minimum-Mandatory Sentencing Act that established sentencing guidelines for drug offenses, and which is now in effect in many states. This model law erased the distinction between mere possession of a drug and possession for sale, so that a marijuana user faces the same penalty as a marijuana seller working for a cartel. The law also increases penalties for higher-ups, but the higher-ups are seldom arrested and can escape prison sentences through clever lawyers and legal technicalities.  

For example, the executives of HSBC Bank, the largest bank in Europe, failed to monitor $690 billion in wire transfers and $9.4 billion in money order sales from Mexico. HSBC's failure to monitor these sales, as required by law, permitted Mexican and Colombian drug cartels to launder more than $881 million in profits from their illegal enterprises. Not only did these executives escape prison, their failure to monitor these transactions also means that cartel kingpins will never stand trial because the proof of their crimes—the record of money received for drugs—was erased by the bank.

The judge in the case fined the bank $1.9 billion but imprisoned no one. A company can't be imprisoned, he wrote.³ Contrast this with the fate of Weldon Angelos, a first offender and father of two, who was sentenced to 55 years in jail for selling $350 worth of marijuana to undercover police officers.

Packing the prisons for the private prison industry

The net effect of these changes was an increase in the prison population in states where they were passed. Another effect was an increase in the demand for private prisons. Corrections Corporation of America (CCA) and the Geo Group (formerly Wackenhut) were the first corporations to build prisons and manage them for state governments. By 2010 the two companies were netting $2.9 billion in annual profits from contracts with state and federal governments.

In a meeting in Washington, DC, in 2010, CCA representatives and ALEC member Russell Pearce conceived and drafted Arizona S.B. 1070, aka the "Papers Please" bill .  S.B. 1070 gave Arizona police the right to stop people and ask them for their citizenship papers. CCA promised the City Manager of Benson that the law would bring prosperity to his small town.  It also brought prosperity to CCA: in 2011, CCA reported that immigrant detention was a significant portion of corporate revenue. CCA successfully convinced Arizona to strengthen its anti-immigrant laws in order to increase its own profits from prison management. After S.B. 1070 passed, 30 of its 38 legislative co-sponsors received campaign donations from CCA and Geo.

ALEC has also helped corporations profit from the increase in prison populations by pushing the Prison Industries Act (PIA) model legislation. PIA permits prisons to "rent out" inmates to corporations at sub-minimum wage rates. In Florida, the prisons then deduct 40% of the prisoner's already sub-minimum wages for “room and board”. Many of these prisons are “for-profit” private corporations which thus benefit directly from their state and federal lobbying efforts, as one filthy "hand" washes the other.

1National Lawyers Guild, High Crimes: Strategies to Further Marijuana Legalization Initiatives 11, NLG 2013, https://docs.google.com/gview?embedded=true&url=https://www.nlg.org/sites/default/files/High%2520Crimes-Digital_0_0_1.pdf

2Human Rights Watch, United States: Punishment and Prejudice, Racial Disparities in the War on Drugs (2000), http://www.hrw.org/reports/2000/usa/Rcedrg00-03.htm#P241_48009.

3U.S. v. HSBC Bank USA NA, 12-cr-00763 20, U.S. District Court, Eastern District of New York (Brooklyn), http://www.justice.gov/usao/nye/pr/2013/doc/HSBC%20Memorandum%20and%20Order%207.1.13.pdf