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It is impossible to know for certain how many innocent drug defendants convict themselves every year by accepting a plea bargain out of fear of mandatory sentences, or how many are convicted due to lying informants and paid witnesses, but reliable estimates of the number of innocent people currently in prison tend to range from 2 percent to 5 percent.72 While those numbers may sound small (and probably are underestimates), they translate into thousands of innocent people who are locked up, some of whom will die in prison. In fact, if only 1 percent of America's prisoners are actually innocent of the crimes for which they have been convicted, that would mean tens of thousands of innocent people are currently languishing behind bars in the United States.
The real point here, however, is not that innocent people are locked up. That has been true since penitentiaries first opened in America. The critical point is that thousands of people are swept into the criminal justice system every year pursuant to the drug war without much regard for their guilt or innocence. The police are allowed by the courts to conduct fishing expeditions for drugs on streets and freeways based on nothing more than a hunch. Homes may be searched for drugs based on a tip from an unreliable, confidential informant who is trading the information for money or to escape prison time. And once swept inside the system, people are often denied attorneys or meaningful representation and pressured into plea bargains by the threat of unbelievably harsh sentences— sentences for minor drug crimes that are higher than many countries impose on convicted murderers. This is the way the roundup works, and it works this way in virtually every major city in the United States.

Time Served

Once convicted of felony drug charges, one's chances of being released from the system in short order are slim, at best. The elimination of judicial discretion through mandatory sentencing laws has forced judges to impose sentences for drug crimes that are often longer than those violent criminals receive. When judges have discretion, they may consider a defendant's background and impose a lighter penalty if the defendant's personal circumstances—extreme poverty or experience of abuse, for example—warrant it. This flexibility—which is important in all criminal cases—is especially important in drug cases, as studies have indicated that many drug defendants are using or selling to support an addiction.73 Referring a defendant to treatment, rather than sending him or her to prison, may well be the most prudent choice—saving government resources and potentially saving the defendant from a lifetime of addiction. Likewise, imposing a short prison sentence (or none at all) may increase the chances that the defendant will experience successful re-entry. A lengthy prison term may increase the odds that reentry will be extremely difficult, leading to relapse, and re- imprisonment. Mandatory drug sentencing laws strip judges of their traditional role of considering all relevant circumstances in an effort to do justice in the individual case.
Nevertheless, harsh mandatory minimum sentences for drug offenders have been consistently upheld by the U.S. Supreme Court. In 1982, the Supreme Court upheld forty years of imprisonment for possession and an attempt to sell 9 ounces of marijuana.74 Several years later, in Harmelin v. Michigan, the Court upheld a sentence of life imprisonment for a defendant with no prior convictions who attempted to sell 672 grams (approximately 23 ounces) of crack cocaine.75 The Court found the sentences imposed in those cases "reasonably proportionate" to the offenses committed—and not "cruel and unusual" in violation of the Eighth Amendment. This ruling was remarkable given that, prior to the Drug Reform Act of 1986, the longest sentence Congress had ever imposed for possession of any drug in any amount was one year. A life sentence for a first-time drug offense is unheard of in the rest of the developed world. Even for high-end drug crimes, most countries impose sentences that are measured in months, rather than years. For example, a conviction for selling a kilogram of heroin yields a mandatory ten-year sentence in U.S. federal court, compared with six months in prison in England.76 Remarkably, in the United States, a life sentence is deemed perfectly appropriate for a first-time drug offender.
The most famous Supreme Court decision upholding mandatory minimum sentences is Lockyer v. Andrade.77 In that case, the Court rejected constitutional challenges to sentences of twenty-five years without parole for a man who stole three golf clubs from a pro shop, and fifty years without parole for another man for stealing children's videotapes from a Kmart store. These sentences were imposed pursuant to California's controversial three strikes law, which mandates a sentence of twenty-five years to life for recidivists convicted of a third felony, no matter how minor. Writing for the Court's majority, Justice Sandra Day O'Connor acknowledged that the sentences were severe but concluded that they are not grossly disproportionate to the offense, and therefore do not violate the Eighth Amendment's ban on "cruel and unusual" punishments. In dissent, Justice David H. Souter retorted, "If Andrade's sentence [for stealing videotapes] is not grossly disproportionate, the principle has no meaning." Similarly, counsel for one of the defendants, University of Southern California law professor Erwin Chemerinsky, noted that the Court's reasoning makes it extremely difficult if not impossible to challenge any recidivist sentencing law: "If these sentences aren't cruel and unusual punishment, what would be?"78
Mandatory sentencing laws are frequently justified as necessary to keep "violent criminals" off the streets, yet these penalties are imposed most often against drug offenders and those who are guilty of nonviolent crimes. In fact, under three-strikes regimes, such as the one in California, a "repeat offender" could be someone who had a single prior case decades ago. First and second strikes are counted by individual charges, rather than individual cases, so a single case can result in first, second, and even third strikes. For example, a person arrested for possession of a substantial amount of marijuana, as well as a tiny amount of cocaine, could be charged with at least two separate felonies: possession with intent to sell marijuana, as well as possession of cocaine. Pleading guilty to each of these crimes would result in "two strikes." Fifteen years later, if the individual is arrested for passing a bad check, he or she could be facing a third strike and a life sentence. To make matters worse, sentences for each charge can run consecutively, so a defendant can easily face a sentence of fifty, seventy-five, or one hundred years to life arising from a single case. In fact, fifty years to life was the actual sentence given to Leandro Andrade, whose sentence for stealing videotapes was upheld by the Supreme Court.
The clear majority of those subject to harsh mandatory minimum sentences in the federal system are drug offenders. Most are low-level, minor drug dealers—not "drug kingpins." The stories are legion. Marcus Boyd was arrested after selling 3.9 grams of crack cocaine to a confidential informant working with a regional drug task force. At the time of his arrest, Marcus was twenty-four years old and had been addicted to drugs for six years, beginning shortly after his mother's death and escalating throughout his early twenties. He met the informant through a close family friend, someone he trusted. At sentencing, the judge based the drug quantity calculation on testimony from the informant and another witness, who both claimed they bought crack from Marcus on other occasions. As a result, Marcus was held accountable for 37.4 grams (the equivalent of 1.3 ounces) based on the statements made by the informant and the other witness. He was sentenced to more than fourteen years in prison. His two children were six and seven years old at the time of his sentencing. They will be adults when he is released.79
Weldon Angelos is another casualty of the drug war. He will spend the rest of his life in prison for three marijuana sales. Angelos, a twenty-four-year-old record producer, possessed a weapon—which he did not use or threaten to use—at the time of the sales. Under federal sentencing guidelines, however, the sentencing judge was obligated to impose a fifty-five-year mandatory minimum sentence. Upon doing so, the judge noted his reluctance to send the young man away for life for three marijuana sales. He said from the bench, "The Court believes that to sentence Mr. Angelos to prison for the rest of his life is unjust, cruel, and even irrational."80
Some federal judges, including conservative judges, have quit in protest of federal drug laws and sentencing guidelines. Face-to-face with those whose lives hang in the balance, they are far closer to the human tragedy occasioned by the drug war than the legislators who write the laws from afar. Judge Lawrence Irving, a Reagan appointee, noted upon his retirement: "If I remain on the bench, I have no choice but to follow the law. I just can't, in good conscience, continue to do this."81 Other judges, such as Judge Jack Weinstein, publicly refused to take any more drug cases, describing "a sense of depression about much of the cruelty I have been a party to in connection with the 'war on drugs.'"82 Another Reagan appointee, Judge Stanley Marshall, told a reporter, "I've always been considered a fairly harsh sentencer, but it's killing me that I'm sending so many low-level offenders away for all this time."83 He made the statement after imposing a five-year sentence on a mother in Washington, D.C., who was convicted of "possession" of crack found by police in a locked box that her son had hidden in her attic. In California, reporters described a similar event:
U.S. District Judge William W. Schwarzer, a Republican appointee, is not known as a light

sentencer. Thus it was that everyone in his San Francisco courtroom watched in stunned silence as Schwarzer, known for his stoic demeanor, choked with tears as he anguished over sentencing Richard Anderson, a first offender Oakland longshoreman, to ten years in prison without parole for what appeared to be a minor mistake in judgment in having given a ride to a drug dealer for a meeting with an undercover agent.84

Even Supreme Court Justice Anthony Kennedy has condemned the harsh mandatory minimum sentences imposed on drug offenders. He told attorneys gathered for the American Bar Association's 2003 annual conference: "Our [prison] resources are misspent, our punishments too severe, our sentences too loaded." He then added, "I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In all too many cases, mandatory minimum sentences are unjust."85

The Prison Label

Most people imagine that the explosion in the U.S. prison population during the past twenty-five years reflects changes in crime rates. Few would guess that our prison population leapt from approximately 350,000 to 2.3 million in such a short period of time due to changes in laws and policies, not changes in crime rates. Yet it has been changes in our laws—particularly the dramatic increases in the length of prison sentences—that have been responsible for the growth of our prison system, not increases in crime. One study suggests that the entire increase in the prison population from 1980 to 2001 can be explained by sentencing policy changes.86
Because harsh sentencing is the primary cause of the prison explosion, one might reasonably assume that substantially reducing the length of prison sentences would effectively dismantle this new system of control. That view, however, is mistaken. This system depends on the prison label, not prison time.
Once a person is labeled a felon, he or she is ushered into a parallel universe in which discrimination, stigma, and exclusion are perfectly legal, and privileges of citizenship such as voting and jury service are off-limits. It does not matter whether you have actually spent time in prison; your second-class citizenship begins the moment you are branded a felon. Most people branded felons, in fact, are not sentenced to prison. As of 2008, there were approximately 2.3 million people in prisons and jails, and a staggering 5.1 million people under "community correctional supervision"—i.e., on probation or parole.87 Merely reducing prison terms does not have a major impact on the majority of people in the system. It is the badge of inferiority—the felony record—that relegates people for their entire lives, to second-class status. As described in chapter 4, for drug felons, there is little hope of escape. Barred from public housing by law, discriminated against by private landlords, ineligible for food stamps, forced to "check the box" indicating a felony conviction on employment applications for nearly every job, and denied licenses for a wide range of professions, people whose only crime is drug addiction or possession of a small amount of drugs for recreational use find themselves locked out of the mainstream society and economy—permanently.
No wonder, then, that most people labeled felons find their way back into prison. According to a Bureau of Justice Statistics study, about 30 percent of released prisoners in its sample were rearrested within six months of release. 88 Within three years, nearly 68 percent were rearrested at least once for a new offense.89 Only a small minority are rearrested for violent crimes; the vast majority are rearrested for property offenses, drug offenses, and offenses against the public order.90
For those released on probation or parole, the risks are especially high. They are subject to regular surveillance and monitoring by the police and may be stopped and searched (with or without their consent) for any reason or no reason at all. As a result, they are far more likely to be arrested (again) than those whose behavior is not subject to constant scrutiny by law enforcement. Probationers and parolees are at increased risk of arrest because their lives are governed by additional rules that do not apply to everyone else. Myriad restrictions on their travel and behavior (such as a prohibition on associating with other felons), as well as various requirements of probation and parole (such as paying fines and meeting with probation officers), create opportunities for arrest. Violation of these special rules can land someone right back in prison. In fact, that is what happens a good deal of the time.
The extraordinary increase in prison admissions due to parole and probation violations is due almost entirely to the War on Drugs. With respect to parole, in 1980, only 1 percent of all prison admissions were parole violators. Twenty years later, more than one third (35 percent) of prison admissions resulted from parole violations.91 To put the matter more starkly: About as many people were returned to prison for parole violations in 2000 as were admitted to prison in 1980 for all reasons.92 Of all parole violators returned to prison in 2000, only one-third were returned for a new conviction; two-thirds were returned for a technical violation such as missing appointments with a parole officer, failing to maintain employment, or failing a drug test.93 In this system of control, failing to cope well with one's exile status is treated like a crime. If you fail, after being released from prison with a criminal record—your personal badge of inferiority—to remain drug free, or if you fail to get a job against all the odds, or if you get depressed and miss an appointment with your parole officer (or if you cannot afford the bus fare to take you there), you can be sent right back to prison—where society apparently thinks millions of Americans belong.
This disturbing phenomenon of people cycling in and out of prison, trapped by their second-class status, has been described by Loïc Wacquant as a "closed circuit of perpetual marginality." 94 Hundreds of thousands of people are released from prison every year, only to find themselves locked out of the mainstream society and economy. Most ultimately return to prison, sometimes for the rest of their lives. Others are released again, only to find themselves in precisely the circumstances they occupied before, unable to cope with the stigma of the prison label and their permanent pariah status.
Reducing the amount of time people spend behind bars—by eliminating harsh mandatory minimums —will alleviate some of the unnecessary suffering caused by this system, but it will not disturb the closed circuit. Those labeled felons will continue to cycle in and out of prison, subject to perpetual surveillance by the police, and unable to integrate into the mainstream society and economy. Unless the number of people who are labeled felons is dramatically reduced, and unless the laws and policies that keep ex-offenders marginalized from the mainstream society and economy are eliminated, the system will continue to create and maintain an enormous undercaste.

3 The Color of Justice

Imagine you are Emma Faye Stewart, a thirty-year-old, single African American mother of two who was arrested as part of a drug sweep in Hearne, Texas.1 All but one of the people arrested were African American. You are innocent. After a week in jail, you have no one to care for your two small children and are eager to get home. Your court-appointed attorney urges you to plead guilty to a drug distribution charge, saying the prosecutor has offered probation. You refuse, steadfastly proclaiming your innocence. Finally, after almost a month in jail, you decide to plead guilty so you can return home to your children. Unwilling to risk a trial and years of imprisonment, you are sentenced to ten years probation and ordered to pay $1,000 in fines, as well as court and probation costs. You are also now branded a drug felon. You are no longer eligible for food stamps; you may be discriminated against in employment; you cannot vote for at least twelve years; and you are about to be evicted from public housing. Once homeless, your children will be taken from you and put in foster care.
A judge eventually dismisses all cases against the defendants who did not plead guilty. At trial, the judge finds that the entire sweep was based on the testimony of a single informant who lied to the prosecution. You, however, are still a drug felon, homeless, and desperate to regain custody of your children.
Now place yourself in the shoes of Clifford Runoalds, another African American victim of the Hearne drug bust.2 You returned home to Bryan, Texas, to attend the funeral of your eighteen-month- old daughter. Before the funeral services begin, the police show up and handcuff you. You beg the officers to let you take one last look at your daughter before she is buried. The police refuse. You are told by prosecutors that you are needed to testify against one of the defendants in a recent drug bust. You deny witnessing any drug transaction; you don't know what they are talking about. Because of your refusal to cooperate, you are indicted on felony charges. After a month of being held in jail, the charges against you are dropped. You are technically free, but as a result of your arrest and period of incarceration, you lose your job, your apartment, your furniture, and your car. Not to mention the chance to say good-bye to your baby girl.
This is the War on Drugs. The brutal stories described above are not isolated incidents, nor are the racial identities of Emma Faye Stewart and Clifford Runoalds random or accidental. In every state across our nation, African Americans—particularly in the poorest neighborhoods—are subjected to tactics and practices that would result in public outrage and scandal if committed in middle-class white neighborhoods. In the drug war, the enemy is racially defined. The law enforcement methods described in chapter 2 have been employed almost exclusively in poor communities of color, resulting in jaw-dropping numbers of African Americans and Latinos filling our nation's prisons and jails every year. We are told by drug warriors that the enemy in this war is a thing—drugs—not a group of people, but the facts prove otherwise.
Human Rights Watch reported in 2000 that, in seven states, African Americans constitute 80 to 90 percent of all drug offenders sent to prison.3 In at least fifteen states, blacks are admitted to prison on drug charges at a rate from twenty to fifty-seven times greater than that of white men.4 In fact, nationwide, the rate of incarceration for African American drug offenders dwarfs the rate of whites. When the War on Drugs gained full steam in the mid-1980s, prison admissions for African Americans skyrocketed, nearly quadrupling in three years, and then increasing steadily until it reached in 2000 a level more than twenty-six times the level in 1983.5 The number of 2000 drug admissions for Latinos was twenty-two times the number of 1983 admissions.6 Whites have been admitted to prison for drug offenses at increased rates as well—the number of whites admitted for drug offenses in 2000 was eight times the number admitted in 1983—but their relative numbers are small compared to blacks' and Latinos'.7 Although the majority of illegal drug users and dealers nationwide are white, three- fourths of all people imprisoned for drug offenses have been black or Latino.8 In recent years, rates of black imprisonment for drug offenses have dipped somewhat—declining approximately 25 percent from their zenith in the mid-1990s—but it remains the case that African Americans are incarcerated at grossly disproportionate rates throughout the United States.9
There is, of course, an official explanation for all of this: crime rates. This explanation has tremendous appeal—before you know the facts—for it is consistent with, and reinforces, dominant racial narratives about crime and criminality dating back to slavery. The truth, however, is that rates and patterns of drug crime do not explain the glaring racial disparities in our criminal justice system.
People of all races use and sell illegal drugs at remarkably similar rates.10 If there are significant differences in the surveys to be found, they frequently suggest that whites, particularly white youth, are more likely to engage in illegal drug dealing than people of color.11 One study, for example, published in 2000 by the National Institute on Drug Abuse reported that white students use cocaine at seven times the rate of black students, use crack cocaine at eight times the rate of black students, and use heroin at seven times the rate of black students.12 That same survey revealed that nearly identical percentages of white and black high school seniors use marijuana. The National Household Survey on Drug Abuse reported in 2000 that white youth aged 12-17 are more than a third more likely to have sold illegal drugs than African American youth.13 Thus the very same year Human Rights Watch was reporting that African Americans were being arrested and imprisoned at unprecedented rates, government data revealed that blacks were no more likely to be guilty of drug crimes than whites and that white youth were actually the most likely of any racial or ethnic group to be guilty of illegal drug possession and sales. Any notion that drug use among blacks is more severe or dangerous is belied by the data; white youth have about three times the number of drug-related emergency room visits as their African American counterparts.14
The notion that whites comprise the vast majority of drug users and dealers—and may well be more likely than other racial groups to commit drug crimes—may seem implausible to some, given the media imagery we are fed on a daily basis and the racial composition of our prisons and jails. Upon reflection, however, the prevalence of white drug crime—including drug dealing—should not be surprising. After all, where do whites get their illegal drugs? Do they all drive to the ghetto to purchase them from somebody standing on a street corner? No. Studies consistently indicate that drug markets, like American society generally, reflect our nation's racial and socioeconomic boundaries.

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