Since this post was published, the Dallas Morning News published a thought-provoking column by professor Mark Osler.

To the great relief of anyone who has ever witnessed a federal drug case, Congress has whittled back the infamous 100-1 crack-powder sentencing disparity to 18-1.

Personally, I have never understood the rationale for any disparity whatsoever.

Mark Osler, an Assistant US Attorney turned law professor (and Friends of Justice board member) played a key role in scaling back the sentencing disparity. 

Last year, professor Osler served as lead counsel in Spears v US, a case resulting in a Supreme Court ruling that sentencing  judges could categorically reject the 100:1 ratio in the guidelines.

I will allow Mark to explain the problem in his own words.   This brief quotation comes from Osler’s “More Than Numbers: A Proposal For Rational Drug Sentences”, a paper published by the Federal Sentencing Reporter.

While creating the terms of 21 U.S.C. § 841 in 1986, Congress clearly used the weight of the narcotics at issue as a proxy for the level of involvement of particular defendants, dividing them up between participants, “serious” traffickers, and “major” traffickers. For example, those distributing more than five grams of crack were considered “serious” traffickers and subjected to a five-year mandatory term, whereas those with more than fifty grams were “major” traffickers facing a ten-year minimum penalty.

This assumption, that the person actually holding the most drugs is the most culpable, ignores lessons that should have been learned from Al Capone. Capone was the key man in liquor trafficking, but he was not driving the truck full of booze. Similarly, those truly responsible for narcotics trafficking, those who create the distribution networks and are key to their success, are not the ones who carry, make, or sell the drugs. These functions are fulfilled by low-level subordinates, whereas those who are essential to the operation and retain much of the profit are the ones who manage financial details and organize the operation.

The problem with using weight as a proxy for culpability has over time become clear. The result is a system that is constructed to give long sentences to those with low-level roles: street-level dealers, couriers, and those with even more minor roles. According to the most recent Sentencing

Commission Report, 66.9 percent of those prosecuted for crack cocaine offenses in federal court were those committing these lower-level crimes. Even for powder cocaine the same holds true, with well over half of those prosecuted in federal court being classified as such low-level offenders.

In retrospect, few would dispute that weight is a lousy proxy for culpability. It leads us to lock up lots of unskilled labor in the drug market, while the narcotics trade thrives.

Within this system, what the crack/powder 100-to-1 ratio does is exacerbate the underlying problem of using weight as a proxy for culpability. Because powder cocaine is often only cooked into crack by the street-level dealer, the 100-to-1 ratio only amplifies the distortion already built into the system.

Osler’s critique suggests that scaling back the crack-powder discrepancy represents an important step down the right road–but just a step.  Our drug laws, state and federal, are rooted in a deeply flawed understanding of the drug trade.

According to the Austin Chronicle, “The U.S. House of Representatives yesterday voted in favor of the National Criminal Justice Commission Act of 2010, a bipartisan measure carried by Massachusetts Rep. Bill Delahunt, and joined by 27 other lawmakers.”

Jim Webb (D-Va.) is sponsoring the Senate version of this bill.  Thus far, the measure has been voted out of the Senate Judiciary Committe but has yet to reach the Senate floor.

The Chronicle’s Jordan Smith’s gives this stark assessment of the realities that brought us to the first thorough re-examination of criminal justice policy since 1965:

“The U.S. has the highest incarceration rate in the world – five times the world’s average rate (go USA!) – a disproportionate number of whom are minorities (black males have a 32% chance of serving time at some point during their lives, while white males – a far larger proportion of the overall population – have just a 6% chance of doing time). Meanwhile, the number of people on parole and probation has skyrocketed along with the growing prison and jail population: 1 in 31 adults is on paper with the criminal justice system (most thus ineligible to vote, and barred from funding for educational or housing assistance), a 290% increase since 1980.”

Julie Stewart, the tall, dark and gorgeous president of Families Against Mandatory Minimums (FAMM), is thrilled with the progress of this legislation:

“Today’s vote shows Congress is aware that our nation’s criminal justice system is in need of major repair. We know too much about crime and rehabilitation, about what works and what doesn’t work with regard to recidivism, to continue to mindlessly sentence minor offenders to long prison sentences and inflexible mandatory minimum penalties. The moral bankruptcy of such policies is now being compounded by the fiscal bankruptcy it is visiting upon state and federal governments.”

Kelly Whalen and Cassandra Herrman invested years of their lives making “Tulia, Texas” and their dedication is being recognized.  The piece they created for the PBS program Independent Lens was recently nominated for an Emmy.

According to the folks at Independent Lens, “TULIA, TEXAS shows how America’s war on drugs and its over-zealous law enforcement, combined with racial divisions, have exposed deep-seated animosities and even starker injustices.”

But Whalen and Herrman dealt with a painful subject in a compassionate and understated way.   The Independent Lens website now features a “Tulia talks back” section with comments from folks on both sides of the drug sting controversy.  The program comes in for some criticism from those who didn’t like seeing their community branded as uniquely racist; but the comments are generally appreciate, even laudatory.

Page Lacey Heisser, a woman who grew up in Tulia, left this comment.  “One of the strengths of the film is its plain explanation of how rural economics, politics and small town justice converge to influence decent citizens of a town towards making such bad decisions. I think Tulia—like other small towns—is made up of women and men who are focused on their families, their jobs, local sports, church events and keeping their heads above water.”

Page wishes “Tulia, Texas” was a mandatory part of the school curriculum in her home town.  I appreciate her focus on the confluence of “rural economics, politics and small town justice” because all three get plenty of attention in “Taking out the Trash in Tulia, Texas”, my soon-to-be-released take on the story.  Racism was a factor, to be sure, but reducing a complex phenomenon to a single factor introduces grave distortion.  Herrman and Whalen avoided that trap and the results are illuminating.

Friends of Justice joins the many admirers of this excellent documentary in congratulating the filmmakers on their Emmy nomination.

I conclude with an ironic sidenote.  For decades, Tulia maintained a rough-and-ready equilibrium between church-going Puritanism and frontier town anarchy by allowing a string of bootleg bars to proliferate in the Sunset Addition, the black section of town.  A former Tulia mayor once told me that Joe Moore, a hog farmer sentenced to 90 years for allegedly selling drugs to Tom Coleman, did the community a service by running a bootleg bar.  Tulia was able to maintain its status as a “dry” Bible Belt community, but anyone who wanted a bottle of hootch could scoot across the tracks to Joe’s Funz-a-Poppin’ joint.

Funz-a-Poppin’ was bull-dozed in the early 1990s while Joe was cooling his heels in jail on drug charges equally as bogus as those filed in the name of Tom Coleman.  But times have changed.  In the last general election, Tulia voted to allow the sale of alcohol in local stores.  You still can’t buy “liquor by the drink” in Tulia, but the recently opened “Polo’s Sports Cafe” has a BYOB policy and doesn’t admit minors.  According to my Tulia contacts, Polo’s has a pool table, music and dancing–the same recipe that made Funz-a-Poppin’ popular with locals back in the day.

As the demise of dry laws suggests, Tulia is gradually evolving into a majority-minority community.  The drug sting was, among other things, an attempt to forestall the inevitable.   It could be argued that the Tulia of 1955 was a more prosperous and functional community than the Tulia of today; but that kind of town is no longer sustainable in the rural Panhandle.

Jena Six the Hard Way

Stephanie Greenlea

Playing the Game

Silences on racial inequality in America have a solid history.  For decades during the civil rights movement, black activists and their allies pulled off innovative collective action and made sure that the media was there to see it.  In print and on screen, inequality by race (and white investment in it) became visible. Ultimately protest faded and coverage turned away, but not without leaving a peculiar legacy. Today most folks agree that racism is bad, that racists are “the bad guys” and that no one is inherently better than anyone else.  Having thus declared a change of mind, mainstream America became anxious to put the race saga to rest.

These silences serve a purpose, too, by ensuring a certain stability for the way that things are.  Inequality by race carries on, and in few places is this injustice more acutely felt than in the American criminal justice system. Unwillingness to talk about race as a foundational problem leaves everything intact. The business of mass imprisonment may proceed as usual, with high stakes for poor, young people of color.

From these thick silences, Americans across the country eke out a tenuous peace in order to go about daily life. In the absence of a sustained public discourse, the daily relevance of race finds most articulation in the marginalized spaces of black barbershops, living rooms, and through shared experience of friends. It is a remarkable game of co-existing, functional and occasionally comfortable, even when it doesn’t seem quite fair. 

And so, when Mychal Bell and five others were charged with severe crimes, Jena residents did the American thing to do.  In August, the town held a vigil at which underlying race issues were silenced for the town’s need for peace.  The way that Jena initially played it, silence was more valuable than race-talk.  It was a shortcut to unity and an easier way.

 Jena Six The Hard Way

Early research by Friends of Justice supported a race-centered reading of the events in Jena.  Alan Bean’s final narratives resonated with the buried conversations of black Americans.  This discourse was exhumed and aggregated through strategic organizing on the ground and innovative use of social media. With tens of thousands of supporters at marches and in the blogosphere these perspectives came forth in a remarkably public way. As with civil rights movements of the past, the September 20th protest elevated race talk from submerged, scattered conversation to a focused, highly-visible counter-narrative.  Collective action had changed the game. Rather than silence over-determining public interpretation, race-talk offered a competing narrative of increasingly equal weight.

Though it unsettled many observers, shouting about race in a culture prone to shushing presented an opportunity for a better way forward.  Rather than taking the easy route through silence, the protests demanded a more difficult engagement with racial justice.  Jena Six supporters imagined a future where interracial peace was not predicated upon ignored inequalities, but resulted instead from deep and meaningful equality of opportunity. They wanted to play it the hard way.

Obama Rolls the Dice

Remarkably, the counter-narrative on Jena became an important part of the 2008 presidential election, and by extension, an influence on subsequent national discussions on race.  The scale of the September protests made Jena a litmus test of candidates’ responsiveness to the expressed concerns of the people.  When Jesse Jackson critiqued Obama’s silence, it was clear that Obama had a heavy decision to make.  Mass support for Jena and related racial justice issues made continued silence untenable.  So, eventually the Illinois senator spoke.  When he did, he risked white backlash and black disappointment. 

Ever the good politician, Obama couched his remarks in language about shared commitments to American values (peace, equality, freedom) across race.  These rhetorical strategies allowed him to address both white fear of racial discord and black desire to have their experience taken seriously.  Clearly, Obama entered the election ready to play.  But his comments also suggest that he was willing (at least rhetorically) to play it the hard way.  His remarks on Jena would be some of his earliest articulations of a concern for racial justice in the campaign.  Breaking silences at the highest levels of government, his actions prompted candidates Clinton and Edwards to do the same. As a result of their collective action, supporters of the Jena Six had shifted national discourse on race from silence to engagement with racial justice questions.

Importantly, Obama’s support for the Jena Six made him legitimate to scores of black Americans, many of them the young people who also supported the defendants. His accountability to their experiences was rewarded richly by votes and growing loyalty.  His message of hope and unity no doubt seemed more trustworthy to black Americans after articulating that he was interested in achieving those ideals by addressing to racial inequality rather than skipping over it. By the South Carolina primary in January 2008, Obama had apparently gained enough traction with voters to enjoy their help in making him a candidate that could win.

Subsequent events would cause Obama to be more and more explicit about the relevance of race in American inequality.  Though Jena Six supporters probably did not imagine it at the time, his full-length, globally televised speech on the subject was prefigured in part by their small-town organizing.  By presenting an alternative reading of the Jena Six, Friends of Justice and their allies responded to the high stakes of the criminal justice system for black Americans, and helped to change the game for things to come. In pursuit of victory that is meaningful to all, playing the hard way is the only way to go.

Stephanie Greenlea, a doctoral student at Yale University, is currently writing her dissertation on the Jena 6 phenomenon.

The ACLU of Louisiana is alleging that prisoners at the St. Tammany Parish Jail are frequently held in 3 ft. by 3 ft. cells.  The minimum standard for pets in the Parish is twice that size.

Sheriff Jack Strain claims the cells are only used as a last resort for prisoners who are a threat to themselves and others.  See, if you can’t move, it’s hard to commit suicide.

I have only been inside the St. Tammany Parish Jail on one occasion, but the ACLU report isn’t the first time I have heard about the infamous “squirrel cages”. 

When I visited with Kelvin Kaigler at the jail, I learned that one of the defendants in the Jace Washington case  signed a confession after being held in one of these cages, deprived of toilet priviliges, for several days. 

The full list of allegations can be found in the open letter from the Louisiana ACLU to Sheriff Jack Strain. 

Sheriff Strain shared the ACLU letter with Dr. Demaree Inglese, medical director at the St. Tammany Jail.  Inglese sent a tart response to ACLU executive director Margorie Esman explaining that the cells are only used when prisoners are booked into the jail and when prisoners are deemed suicidal.  The squirrel cages, jail officials claim, allow staff to monitor a large number of individuals at a single time.

Strain says the ACLU should have contacted his office if they were concerned about conditions in his jail.  

That would have been unwise.  Once the open letter went public, prisoners received a measure of protection from backlash.  Alerting the sheriff to their allegations prematurely would have placed prisoners at risk.

The St. Tammany Parish Jail stands in marked contrast to the posh new St. Tammany Sheriff’s building Sheriff Strain recently erected to his immortal glory.  Pictures featuring paramilitary police operations line the walls and the reception area resembles the lobby of a posh hotel.

Conditions at the Jail couldn’t be more different.  That’s the idea.  The overcrowded lockup and Mr. Strain’s personal palace are designed to lionize law enforcement while dehumanizing offenders.

This is the same Sheriff, after all, who created a small sensation in the wake of Hurricane Katrina by telling a New Orleans news team that trashy people from New Orleans entering his parish could expect a visit from a sheriff’s deputy.  Folks with dreadlocks were considered especially worthy of official contempt.

It comes as no surprise that both Kelvin Kaigler and Jace Washington sport dreadlocks.  Both men were convicted by St. Tammany juries after Jack Strain and his boys pressured jailhouse snitches into making false allegations.  In Washington’s case, written recantations from the snitches proved inadequate.  A judge recently ruled that the men were responding to threats from Mr. Washington.

Kelvin Kaigler and James Bishop were convicted on the perjured testimony of Frank Knight, possibly the most thoroughly compromised and unconvincing snitch in the state of Louisiana.  And that’s quite a distinction.

The ACLU appears to be getting the best of the back-and-forth allegations.  Their response to Mr. Strains disingenuous counter-charges  show that Esman, Schwartzmann and company have their ducks in a row and won’t be backing down. 

The story was picked up today by the New York Daily News. 

The text of a recent article in the New Orleans  Times-Picayune appears below.

ACLU, St. Tammany Sheriff’s Office continue to spar over treatment of prisoners

Robert Rhoden, The Times-Picayune

The battle between the Louisiana chapter of the ACLU and the St. Tammany Parish Sheriff’s Office over the use of phone-booth sized cages to hold suicidal jail inmates has heated up, with the civil rights group and the agency issuing letters openly accusing one another of distorting the facts.

The letters come after the local American Civil Liberties Union blasted the Sheriff’s Office last week for keeping suicidal prisoners in “squirrel cages,” 3-foot-by-3-foot cages usually used to hold inmates for about an hour while deputies are doing paperwork. In some cases, the ACLU said, prisoners have reported being held in the cages for more than a month at a time.

In a response to those charges, the jail’s mMedical director, Dr. Demaree Inglese, argued in a letter Friday that the cages are used only as a last resort, “when other means…are not suitable for the situation,” and said alternative options were no less restrictive to inmates. Sheriff’s Office officials have said the cages give deputies the ability to monitor the activities of inmates to prevent them from attempting to hurt themselves.

“(We) make every effort to utilize alternative measures when possible and to minimize patients’ stays in the booking cells, but my first priority must always be protecting the health and life of the inmates, even if, at times, comfort must be sacrificed,” Inglese wrote. “Unless there is a radical shift in Louisiana policy and mental-health funding, I fully expect this situation to persist or likely worsen in the future.”

Inglese flatly denied allegations by the ACLU that the jail used the cages for all prisoners and that their requests to be let out to use the bathroom were often ignored. He also wrote that while prisoners are forced to wear shorts, actually cut-off pants from orange prison jumpsuits, while in the cages, this is not a form of punishment but a way to prevent inmates from using their clothes to hang themselves.

ACLU Executive Director Majorie Esman said the organization stands by its allegations, which were the result of a “very careful investigation spanning many months.” And, at its base, Esman wrote that both her organization and the Sheriff’s Office agree on the central issue, and the civil-rights group’s most serious allegation.

“There is one thing we agree upon: you are housing human beings in cages that are smaller than the St. Tammany Parish Code authorizes for dogs,” Esman wrote.

Esman accused the Sheriff’s Office of being “disingenuous” in saying that her organization had not visited the jail. She further argued that the cages, rather than offer protection, may contribute to suicides at the facility because inmates who “fear the shame and pain of the cages will therefore not report problems.”

Inglese, who has testified about conditions at the jail for the ACLU in a case the organization is bringing against state agencies in an effort to improve treatment options for mentally ill inmates, argued that he has tried to seek better services for mentally ill patients. But, with little ability to transfer inmates to medical facilities, the jail must “provide the best care they can in the jail environment.”

“I am curious why the ACLU is now suddenly interested in mental health services in the jail when we have been begging for assistance for over three years with no response,” Inglese wrote.

Esman replied, “(In) addition to relying upon the state for assistance, you have an obligation to take corrective measures yourself.”