Editorial

Minimum Mandatory Madness

We have all been to conferences and heard US speakers telling us how bad the drug war is in the USA and how harm maximisation is the prevalent policy. For many of us the more you hear it the less impact it has and you begin to accept that yes it’s bad over there and well, I’m over here and although it may not be so bad there are still things that need doing here and so I will leave them to get on with it. In October last year I attended the Drug Policy Foundation Conference in New Orleans. One of the exhibits shocked and disgusted me in a way I did not think was possible. It was called “Wall of Shame.”

Stories from the USA of huge sentences being handed out for minor drug offences are commonly heard.. What I saw and read on this exhibit drove home to me the reality of many people’s situation in the land of the free. It consisted of a series of photographs of people serving sentences for drug offences and descriptions of their situation. Sentences such as:

· 24 years for conspiracy to import and distribute MDMA;

· Life for conspiracy to aid and abet manufacturing of methamphetamine;

· 45 years for distribution of crack cocaine;

· Life + 5 years for conspiracy and possession with intent to distribute crack cocaine, aiding & abetting;

· 19 years for conspiracy to distribute methamphetamine;

· 16 years for conspiracy to manufacture marijuana; conspiracy to “knowingly know” others are growing marijuana;

· 21.8 years for conspiracy to distribute marijuana, money laundering;

· 99 years for sale of 1/10 gram of cocaine.

One person on the list is William Foster. His wife, Megan, spoke bravely at a session of the DPF conference explaining his situation and her determination together with relatives and friends of other prisoners, to get him released. This is the story of Will Foster in the words of the exhibit.

He was a productive citizen who paid his taxes, served in the US Army, and had his own computer programmer/analyst business for five years. He, his wife, Megan, and their three children were leading ordinary lives in Oklahoma until he was arrested for using marijuana for medicinal purposes. "We were a happy, typical family that had a life and had dreams, but the Tulsa Police Department had different ideas," Will wrote.

Will has crippling rheumatoid arthritis in his feet, hips, lower back, and hands. He did not like the side effects of the drugs his doctors prescribed, which were mostly codeine-based and highly addictive. These drugs left him moody, tired and edgy, making it difficult for him to enjoy his family and perform his work. Will found that medical marijuana controlled the pain and swelling associated with his condition, so he grew his own medicine.

On December 28, 1995, based on a secret tip from a 'confidential informant,' police entered the Fosters' home with a 'John Doe' search warrant for methamphetamine. They found no methamphetamine, and no evidence of it or anything listed on the search warrant. What they did find was his basement garden - 66 cannabis plants - and $28 cash.

Will refused to take a 'deal' and asked for a jury trial instead. However, he never had the chance to confront the witnesses against him, as the judge refused his Sixth Amendment right to do so. Furthermore, he was denied his Fourth Amendment protections against unreasonable search and seizure and nameless warrants. The prosecution poured on the pressure and the jury convicted him. He was sentenced to 70 years for marijuana cultivation, 20 years for possession of marijuana in the presence of a minor child (his own), 2 years for possession with intent to distribute, and one year for not having a tax stamp. His sentence amounted to 93 years.

Since his incarceration, Will Foster has had very inadequate medical treatment, and he is suffering greatly. He now risks losing his left leg from the knee down.

Will is another victim of mandatory minimum sentencing brought in 1986 and, although there are 100 separate federal mandatory minimum sentences, there are only four used regularly and these apply exclusively to drugs. 94% of all mandatory minimum sentences are from these four statutes. In cases where they apply judges only have discretion if the defendant gives “substantial assistance” to the prosecution. This is evaluated by the prosecutor and not the judge. In fact the prosecutor has discretion over the quantity of drugs to charge, whether or not to accept or refuse a plea bargain and even decide if the assistance, however “substantial” should be rewarded or not.

In 1985, before the advent of mandatory minimum sentencing laws, the average drug sentence in the USA was 23.1 months. In 1995, the average drug sentence was 82.4 months. (Federal Bureau of Prisons, "Quick Facts," September 1996.) The average sentence for a first-time, federal drug offender is 82.4 months This compares with 66.9 months for firearms offences, 73.8 months for sexual abuse, 33.4 months for assault and 26.8 months for manslaughter.

21% of the total federal prison population in 1993 were low-level drug violators with no history of violence or prior incarceration. Another 17% were drug offenders with no criminal histories. (Department of Justice, February 1994.) In 1990, more than half of federal inmates serving mandatory minimum sentences were first-time offenders. (Bureau of Justice Statistics, 1991.) In 1994, 92% of federal inmates were incarcerated for a non-violent crime. (Coalition for Federal Sentencing Reform, 1997.) After mandatory minimum sentences were brought in 1986 the Federal Bureau of Prisons budget increased by more than 1,400%. It went from $220 million in to $3.19 billion in 1997. (Bureau of Justice Statistics Sourcebook, p.20; National Drug Control Strategy Budget Summary, 1997, p. 111.)

What is the purpose of these sentences? Deterrence? But according to the US department of Justice

"[t]he great majority of recidivism studies of federal prison releasees report that the

amount of time inmates serve in prison does not increase or decrease the likelihood of recidivism, whether recidivism is measured as a parole revocation, re-arrest, reconviction, or return to prison." (Department of Justice Report, "An Analysis of Non-Violent Drug Offenders with Minimal Criminal Histories," February 1994.)

Who suffers most from these sentences? Of course women and minorities. The growth rate in the prison population among women was 9.1% in 1996 compared with 4.7% for men (Bureau of Justice Statistics, Prisoners in 1996, 1997.) Since 1986 the percentage of women in prison has risen form 4.6% to 6.3%(ibid.). From 1986 to 1991 the percentage of women in prison grew by 75% (Survey of State prison Inmates, 1991: issued Feb 1997.)

In 1980, 33% of all federal prisoners were minorities. In 1995, 64% of federal prisoners are minorities. (Coalition for Federal Sentencing Reform, 1997.) An estimated 1,471 African-Americans per 100,000 African-American residents were incarcerated in prisons in the USA at the end of 1993, compared to 207 whites per 100,000 white residents. (Bureau of Justice Statistics, "Prisoners in 1994," 1995.) African-Americans made up 40%of the federal prison population in March 1996, up from 31% in 1986. (Bureau of Prisons "Fact Card," March 1996; BJS Sourcebook 1987, p.Ê491.)

The U.S. Sentencing Commission reported in 1995 that whites account for 52% of all crack users and African-Americans, 38%. However, 88% of those sentenced for crack offences are African-American and just 4.1% are white. (U.S. Sentencing Commission, Cocaine and Federal Sentencing Policy, February 1995.)

The taxpayer also suffers. 1,400% increase after the enactment of mandatory minimum sentences in1986. Meant that the budget jumped from $220 million in 1986 to $3.19 billion in 1997. (BJS Sourcebook, p.20; National Drug Control Strategy 1997, Budget Summary, p.111.) The average cost of housing, clothing and feeding a federal prisoner for one year is $23,000. (Coalition for Federal Sentencing Reform, March 1997.)

For me these sentences are barbaric. To deprive someone of his liberty for 93 years for growing marijuana, even if it were not for medicinal purposes, is unjustifiable and by doing so to put that person’s health at risk is inexcusable! I find the whole thing incredible. How can a civilised country treat its citizens in this way? It serves no purpose as far as I can see. This patently unjust sentencing policy should be revoked to give judges discretion over sentencing . In any just world the punishment should have a strong relationship to the crime. In the USA, in these cases, it seems to have had none.

What is it about drugs that makes presumably intelligent people act in such a crazy way? Irrespective of how one views the direction future drug policy should take, surely we can all agree that there must be a better way than this.

Pat O’Hare

Editor

I am indebted to Mikki Norris of the Wall of Shame Project and to Families against Mandatory Minimums (FAMM) for the information used in this article. Visit their web page at http://www.famm.org