Houston Forward Times

13 August 2013 Written by  Jeffrey L. Boney


No other country in the entire world has a larger prison population than the United States.

This week was a historic week in the fight to address the negative impact of mandatory minimum sentencing laws on the African American community, when U.S. Attorney General Eric Holder told the annual conference of the American Bar Association that the Obama administration would take immediate action to address the broken federal sentencing system and reduce federal prison overcrowding in the United States.

For the first time since the inception of mandatory minimum sentencing, the U.S. Department of Justice has admitted that changing mandatory minimum sentencing guidelines would help, not hurt society and that non-violent drug offenders should enter into rehab programs instead of going to prison. 

The Justice Department will no longer pursue mandatory minimum sentences for certain low-level, nonviolent drug offenders, Holder said in his speech this past Monday, noting the nation is “coldly efficient in jailing criminals,” but that it “cannot prosecute or incarcerate” its way to becoming safer.
Holder stated that “too many Americans go to too many prisons for far too long, and for no good law enforcement reason.” He questioned some assumptions about the criminal justice system’s approach to the “war on drugs,” saying that excessive incarceration has been an “ineffective and unsustainable” part of it. Holder said the U.S. prison population has grown by almost 800% since 1980, and federal prisons are operating at nearly 40% above capacity. Nearly 219,000 Americans are locked up in federal prisons. And while Black people only account for 13.1 percent of the U.S. population, roughly 37 percent of Black people are incarcerated in federal prisons, according to Federal Bureau of Prisons. Roughly 47 percent of prisoners are locked up for drug offenses, many of them non-violent offenders. According to the Government Accountability Office (GAO), the Department of Justice spent $6.6 billion housing federal prisoners in 2012.

“Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities,” said Holder. “However, many aspects of our criminal justice system may actually exacerbate this problem, rather than alleviate it.”

Holder also announced increased funding for the Community Oriented Policing Services (COPS) that provides federal funding for advanced training and jobs for local law enforcement. Holder said that a new round of COPS grants would provide more than $110 million to hire military veterans and school resource officers. The Obama administration placed more than $1.5 billion into the COPS program over the past four years, even as critics panned it and research that found it often contributed to over-policing in poor and minority communities and played only a limited role in the reduction of crime.

Congressional Black Caucus Chair Marcia L. Fudge (D-Ohio) said that, “It is well documented that a disproportionate share of stiff mandatory sentences for low-level, non-violent crimes typically impact low income populations and communities of color.”

Attorney General Eric Holder announced steps the Justice Department will take to address over population in federal prisons. The Justice Department’s “Smart on Crime” initiative will focus five key provisions:

• Prioritizing prosecutions to focus on the most serious cases.
• Reforming sentencing to eliminate unfair disparities and reduce overcrowded prisons.
• Pursuing alternatives to incarceration and low-level, non-violent crimes.
• Improving reentry to curb repeat offenses and re-victimization.
• Surging resources to violence prevention and protecting the most vulnerable populations.

“We must never stop being tough on crime,” said Holder. “But we must also be smarter on crime.”

The centerpiece of Holder’s plan is to scale back prosecution for certain drug offenders who have no ties to large-scale organizations, such as gangs or cartels. He said those drug offenders would no longer be charged with offenses that “impose draconian mandatory minimum sentences.” According to Holder, those drug offenders will now “be charged with offenses for which the accompanying sentences are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins.”

Holder said overcrowding at the federal, state and local levels is “both ineffective and unsustainable.” He said it imposes a significant economic burden, totaling $80 billion in 2010 alone, and that it comes with “human and moral costs that are impossible to calculate.” Holder said that legislation to lessen the use of mandatory minimums would ultimately save the U.S. billions of dollars. 

The changes are effective immediately. 

While the Justice Department is planning to allow more elderly and ill prisoners to apply for compassionate release, it was not immediately clear in his comments, whether Holder’s announcement would have any impact on people already serving time in prison and be made retroactive.

Since the founding of this country, people of African descent were brought to this country to serve as unwilling participants in the barbaric economic system known as slavery. Whether because of political or economic reasons, African Americans have been one of the primary cultural groups that have been impacted by the outcome of legalized slavery. 

After slavery was legally abolished with the passage of Abraham Lincoln’s Emancipation Proclamation, other systems were put in place to disenfranchise and enslave African Americans.

The industrial prison complex can be described as a system that has been used to continue the rich tradition of slavery. After the Civil War of the mid-1800’s, the system of sharecropping was introduced; which was the act of freed slaves cultivating someone else’s land in exchange for part of the harvest. Many times, White landowners would lie and accuse these freed slaves of not fulfilling their sharecropping responsibilities or for other crimes such as stealing. Although these claims were almost never proven, these freed slaves were charged and were forced to be “hired out” to continue working as an indentured servant as penalty for their alleged crime. Across the South, over 85% of the “hired-out” convicts were Black and they performed acts such as picking cotton, working in mines and building railroads. 

Fast forward to the 21st century and you see that yet another form of slavery has been introduced, which has led to the economic benefit of those who own stock in privatized prisons in America.

Thanks to prison labor, the U.S. is benefitting from having prisoners manufacture goods and turning a profit. Here in Texas, a factory fired 150 of its workers and contracted the services of prisoner-workers from the private Lockhart Texas prison, where circuit boards are assembled for private companies.

At least 37 states have legalized the contracting of prison labor by private corporations that have moved their operations inside of state prisons. Inmates in state penitentiaries generally receive minimum wage for their work, but in many states, tens of thousands of inmates are paid from pennies or well under minimum wage for their work. 

Another example of how entities are benefiting off of the labor of incarcerated individuals, is Texas Correctional Industries (TCI). TCI is a department within the Texas Department of Criminal Justice. TCI was established in 1963 with the passage of Senate Bill 338, the Prison Made Goods Act. TCI manufactures goods and provides services to state and local government agencies, public educational systems and other tax-supported entities. Texas Correctional Industries products and services include: garments and cloth products, janitorial supplies, laundry supplies, name plates and easels, park equipment, stainless steel security fixtures and food service equipment, school bus renovation services, tire repairs and retreading, first aid and safety equipment, cardboard boxes and file boxes, dump truck beds and accessories, Texas state flags and red safety flags, bedding, dorm furniture, lounge furniture, office furniture and furniture refinishing services, general printing services, draperies and hardware, traffic control signs, metal security components, property identification stickers, inspection stickers and license plates.

TCI lists their primary objectives to be to provide work program participants with marketable job skills to help reduce recidivism through a coordinated program of job skills training, documentation of work history and access to resources provided by Project Re-Integration of Offenders (Project RIO) and the Texas Workforce Commission, including access to resources provided through assistance to local workforce development boards in referring work program participants to the Project RIO employment referral services provided under Section 306.001, Labor Code; and to reduce Texas Department of Criminal Justice costs by providing products and services to the agency and providing products and services for sale, on a for-profit basis. TCI facilities are spread throughout the state with the heaviest concentration in East Texas. These facilities produce items such as mattresses, shoes, garments, brooms, license plates, printed materials, janitorial supplies, soaps, detergents, furniture, textile and steel products. These products are required to meet specifications established and regulated by the Texas Procurement and Support Services (TPASS) division of the Texas Comptroller of Public Accounts. The TPASS is the procurement authority for all state agencies in Texas and coordinates the majority of interagency sales of goods and services provided by TCI. 

A mandatory minimum sentence leaves the outcome of a defendant’s case up to a predetermined court decision, where there is no opportunity for a judge to use his or her discretion to make a ruling, because their decisions are limited by the law. So, in essence, most people convicted of “certain” crimes are punished with a minimum number of years in prison, with no questions asked. Mandatory minimum sentencing was introduced into law when Congress passed the Boggs Act of 1952, as well as the Narcotics Control Act of 1956, making a first time marijuana possession offense a minimum of two to ten years, along with a fine up to $20,000. Named for its sponsor, Representative Hale Boggs (D-La.), the Boggs Act imposed two to-five year minimum sentences for first offenses, including simple possession. The Act made no distinction between drug users and drug traffickers for purposes of sentencing. The driving force behind the Boggs Act was a mistaken belief that drug addiction was a contagious disease that could not be cured and that addicts should be quarantined and forced to undergo treatment.

The Prettyman Commission established by President John F. Kennedy and the Katzenbach Commission created by President Lyndon B. Johnson were both created to study ways to reduce drug use. They found that long prison sentences were not an effective deterrent to drug users, that rehabilitation should be a primary objective for the government and that courts should have wide discretion to deal with drug offenders.

President Richard Nixon took office in 1969 determined to curtail the growing drug problem and worked with Congress to introduce a bill to address drug addiction through rehabilitation, provide better tools for law enforcement in the fight against drug trafficking and manufacturing and provide a more balanced scheme of penalties for drug crimes. The bill, called the Comprehensive Drug Abuse Prevention and Control Act of 1970, repealed mandatory minimum drug sentences except in limited and serious circumstances. The Act was praised by both Republicans and Democrats in Congress and then-Congressman George H.W. Bush (R-Texas) spoke in favor of the repeal because he felt it would “result in better justice and more appropriate sentences.” 

This approach would change in the mid- and late-1980s, when Congress reinstated mandatory minimum laws and the laws got even tougher over the years, with George H.W. Bush’s newly introduced “War on Drugs” and the introduction of the “Three-Strike Rule,” which was advocated for by President Bill Clinton. 

The “Three-Strikes” law was introduced in 1994 and gives a mandatory “life sentence” when an offender is convicted for a serious violent felony, if the offender either has two or more prior serious violent felony convictions, or has one or more prior serious violent felony convictions and one or more prior serious drug offense convictions.

This and other mandatory minimum sentencing laws have done tremendous damage to the Black community in the United States, particularly amongst young, Black males.

Between 1985 and 1995, the American prison population of drug offenders increased from 38,900 to 224,900, with African-American males being the leader. There are about 7% of African-American males in the nation and there are about 46% of African-American males in prisons nationwide. 


The idea of quick and just punishment has always been a popular message amongst lawmakers and the general public for centuries, but sadly many of the prisoners who are serving in America’s prisons are not the criminals these laws were designed for. 

The mandatory sentences on the books today were designed to stop drug trafficking, but they have not. Instead of murderers, robbers and rapists being the recipients of these sentences, you find that drug users, drug addicts and drug dealers are the ones who have become the victims of mandatory minimum sentencing. Every year, thousands receive lengthy mandatory terms in federal prisons for these drug crimes.

The changes announced by the Attorney General are changes in federal practice, not in federal law. What that means is, when a new president is elected to replace President Obama in 2016, they will have the responsibility of nominating his or her own attorney general. That attorney general could reverse Attorney General Holder’s new changes and go back to charging everyone with mandatory minimums. That is why Congress would need to act to make permanent changes.

Holder said that the Justice Department would support congressional efforts to change federal mandatory minimum sentencing laws. Specifically, Holder mentioned two bills that the Obama administration has sought to advance. One is the Justice Safety Valve Act (S. 619), which is a bipartisan piece of legislation introduced by Senate Judiciary Committee chairman Patrick Leahy (D-VT) and Senator Rand Paul (R-KY). The bill would give federal courts discretion to depart below a statutory minimum sentence when circumstances warrant. Last month, a group of 53 former federal prosecutors and judges endorsed the bill, which had already garnered support from conservative columnist George Will, former National Rifle Association president David Keene, Americans for Tax Reform president Grover Norquist, the National Association of Evangelicals, and Justice Fellowship. In addition, The New York Times, Pittsburgh Post-Gazette, Toledo Blade, and Lehigh Valley Times all have endorsed the Justice Safety Valve Act. 

The other bill referenced by Attorney General Holder is the Smart Sentencing Act (S. 1410), which was introduced by Senators Richard Durbin (D-IL) and Mike Lee (R-UT). Their bipartisan legislation would reduce mandatory minimum sentences for drug crimes, expand slightly the existing drug safety valve, and apply retroactively the Fair Sentencing Act of 2010, which reduced the crack-powder cocaine sentencing disparity. 

Senator Leahy recently announced that the Senate Judiciary Committee would hold a hearing on the Justice Safety Valve Act and mandatory minimum reform next month! So now the heavy lifting begins. (We’ve already told you how you can help us in your community this month while members of Congress are home.)

Texas Senators Kay Bailey Hutchinson and John Cornyn voted against the National Criminal Justice Commission Act, Amendment 750 to H.R. 2112, which was a bill that would have addressed the disparity in sentencing for current prisoners. The amendment fell just three votes short of passing, winning the support of members from both sides of the aisle. The U.S. Senate vote was 57 - 43, just three votes short of getting the NCJCA included as part of a fiscal 2012 spending bill. Every Senate Democrat and every Independent voted for the NCJCA amendment and so did four Senate Republicans.

Pushing legislators to act is the key, however.

President Obama campaigned during his initial run for president that he believed the disparity in sentencing “cannot be justified and should be eliminated”. He held true to his campaign promise, by pushing that measure for modification through the House and the Senate and eventually signing it into law. Congress decided to change a 25-year old law, in 2010, that prior to being changed, gave longer prison sentences for crack cocaine convictions, mostly Blacks, while giving significantly more lenient outcomes to those, mainly Whites, caught with the powder form of cocaine. The bill reduced the disparities between mandatory crack and powder cocaine sentences. This law is extremely important, because a person convicted of crack cocaine possession now gets the same mandatory prison term as someone with 100 times the same amount of powder cocaine. 

However, the laws still need to be modified even further, because the legislation only reduced the ratio of powder cocaine to crack cocaine to roughly 18 to 1, which is still a disparity. The bill also eliminated the five-year mandatory minimum for first-time possession of crack. This was the first time, since the Nixon administration, that Congress has repealed a mandatory minimum sentence; unfortunately, it does not apply retroactively.

There are a number of people who believe that if “you do the crime, you should do the time.” Many others believe that while that philosophy may be true, their issue is not the enforcement of the law, but the equality of the law and the subsequent sentencing.

Every day, wealthy defendants who can afford high-priced lawyers, get a slap on the wrist for the same crimes that many Black defendants receive mandatory minimum sentences that can range from 2 to 45 years for. Black men, who are the majority in the prison system, should not become long-term indentured servants made to manufacture goods and products for the benefit of others. They should not be relegated to lengthy prison sentences for low-level crimes, just so that privatized prison systems can generate revenue and turn a profit off of each person they incarcerate.

Black men should be allowed to redeem themselves; vote, get a quality education, raise a family, have a career and live a productive life.

The recent support given by Attorney General Holder and the Justice Department is going to make a huge difference in the efforts to pass mandatory minimum sentencing reform in Congress.

MAA WereReady