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Cracks in the System Remain Despite Landmark Cocaine Sentencing Reform

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August 18, 2010

In late July , Congress ratcheted back the now discredited crack-versus-powder cocaine sentencing disparity after more than 20 years, by passing the Fair Sentencing Act of 2010. I suppose I fit the profile of the kind of person who should be cheering today: I am African-American. I was convicted of a crack cocaine offense, and I was sentenced under the very laws that have now been reformed.

But I am not celebrating.

This is a bittersweet moment for me, my three daughters and two grandchildren. While Congress congratulates itself for its bipartisan effort to do the right thing, I will remain here in prison, serving out the final six years of my 27-year prison sentence for crack cocaine.

More than two decades ago, though crack cocaine and powder cocaine are the same drug, harsher penalties for crack cocaine offenses were passed by Congress based on assumptions about crack cocaine that we know now are untrue. Although the Fair Sentencing Act is a significant improvement, and marks the first time in decades that Congress has repealed a mandatory minimum sentence, it nevertheless leaves thousands of people falling through the cracks. People like me.

I was convicted for a first-time, nonviolent crack cocaine offense in 1993. I never used drugs. I was prosecuted as part of a conspiracy in which I was little more than an errand girl, and because of the harsh, mandatory nature of the crack laws at the time, the judge was ultimately forced to sentence me to 27 years in prison. At my sentencing hearing, the judge felt so strongly about the unjust nature of these laws that he called upon the president to commute my sentence, and in fact, he later wrote to the U.S. Pardon Attorney confirming his support to my request for a sentence commutation.

Had I been convicted of a powder cocaine offense instead, I would be home by now with my family. If crack was treated exactly the same as powder and sentenced at the same level, I would also be home today. But even under the new law passed this week, which reduces the disparity in the amounts triggering harsh sentences from 100-to-1 to 18-to-1, my sentence would be exactly the same: 27 years for a nonviolent, first time offense. Do you think that is justice?

Not only does the new law fail to fully equalize the sentences for crack and powder cocaine — instead reducing the disparity from 100-to-1 to 18-to-1, a random ratio that is clearly the product of backroom deals and political compromise, not any objective or scientific analysis — the new law also fails to require retroactive application for those people sentenced prior to the reform. That means, if you had the misfortune to be convicted of a crack offense last week or last decade, you’re out of luck.

Perhaps I am out of touch. But even from behind bars, I can’t be the only person asking how, even after more than 20 years of solid evidence of the unfairness and ineffectiveness of these sentencing policies, Congress can stop so painfully short of the finish line. Perhaps the answer lies in our nation’s history, recent and not-so-recent.

Recent history: In 1986, in response to national hysteria over a crack epidemic supposedly sweeping the nation and the overdose death of the beloved basketball player Len Bias, Congress passed legislation mandating this strict sentencing distinction between the crack and powder forms of cocaine. Ironically, it turned out that Len Bias actually overdosed on powder cocaine, and it soon became clear that the cure Congress prescribed for crack was at least as bad as the disease.

In 1992, 1997 and 2002, the U.S. Sentencing Commission issued three alarming reports putting Congress on notice about the undeniable racial disparities wrought by the 100-to-1 sentencing disparity; all three reports found no basis for the disparity. The commission found that, despite the fact that more than 66 percent of crack users are white or Hispanic, more than 80 percent of the defendants sentenced for crack offenses are African-American. Each time, Congress turned a blind eye. Meanwhile, the number of people — especially African-American people — in prison skyrocketed.

Not-so-recent history: Before there was a “war on drugs” and the harsh sentences that defined it, there was Jim Crow. And before Jim Crow, there was the Three-Fifths Compromise. The legacy of this history, with its shameful reduction of justice into made-up numbers, lives on. Though perhaps the injustice-to-justice ratio is less today — say, 18-to-1?

But I have hope. The U.S. Sentencing Commission can choose to apply the Fair Sentencing Act of 2010 retroactively. I hope they do. The president can exercise his executive clemency power to right historical wrongs by commuting the remaining sentences of those of us who have fallen through the cracks. I hope he does.

Hamedah Hasan
Inmate # 13847-047
Federal Prison Camp Victorville
Victorville, California

(Originally posted on Huffington Post.)

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