Sentencing Inconsistency

Two days ago a story appeared on the news indicating Congress – at the request of the Federal Sentencing Commission – was considering applying the new crack cocaine sentencing guidelines retroactively.  The hope, according to the news report, is that the states will follow suit.

Prior to Congress passing and President Obama signing, the new crack cocaine sentence guidelines, thousands of drug users – mostly African American – were serving excessive prison sentences for possession of five grams (that’s about five sugar packs) of crack.  The penalty for that amount:  a mandatory five year minimum sentence.  To get the same sentence with powdered cocaine, a person would have to be in possession of 500 grams. 

The thought behind the law was crack was significantly worse than powdered cocaine.  This was a fallacy.  Cocaine is cocaine.  In any form:  powder, liquid or as a crack rock, cocaine is a highly addictive, dangerous drug.  The “real” reason for the sentence disparity – crack was cheaper and it was the drug of choice for hundreds of thousands of poor and predominately black Americans.  Powdered cocaine, on the other hand, was preferred by wealthier white Americans.

One of the major reasons the criminal justice system fails in its efforts to rehabilitate inmates in prison is because the system is perceived as biased and unfair.  There is much truth to support that perception.

Study after study conclude that defendants who can afford to hire the counsel of their choice serve shorter sentences than poor defendants who must rely on either overworked public defenders or – in the case of Virginia – court appointed lawyers whose fees are strictly capped.  These court appointed lawyers cannot hire investigators or experts to assist in the defense of their client’s case.  The expression “equal justice under the law” does not exist.

Sentencing inconsistency creates a victimization mentality amongst the convicted.  How does a man who rapes his seven-year old daughter get an eight year sentence and a check forger ten years?  Which presents more long-term harm to the community?

The day I was sentenced, a young man appeared before the judge shortly before my case was called.  He was with me at the Henrico Jail.  His crime:  his third DUI, driving on a suspended license resulted in his causing the death of his passenger.  The judge, noting his participation in alcohol treatment in jail, sentenced him to “twenty-four months” and required him to maintain an “ignition interlock” system on his car (breathalyzer to start his vehicle) upon release.  Sitting in the holding cell awaiting transport back to the jail following the judge giving me a fifteen year prison sentence, the young man told me “I can beat that lock.  Have in the past.”

A twenty-two year old named Matt was sentenced to twenty-four years in prison for malicious wounding.  His crime:  he and his fiancé broke up but continued to share an apartment.  They agreed to not bring any dates back to their place.  Matt came home from work and walked in on her and another man having sex.  Matt used a ten pound dumbbell and struck and injured the man.  Matt had two prior arrests involving drug and alcohol use.  He was denied bond and then given twenty-four years.  One day, while at the jail, Matt tried to slit his wrists, distraught over his future circumstances.

At the same time, the Henrico County Commonwealth Attorney’s oldest son was arrested.  Age 19, he was at an illegal card house, playing poker.  He was high on marijuana and drinking.  A dispute arose at the table and he struck another player with a beer bottle, injuring the man.  He too had prior drug and alcohol arrests.  He, however, made bond (the court set a $3,000 bond).  His sentence:  three years, suspended with drug and alcohol treatment.

Two similar cases in the same jurisdiction with vastly different results.  The prisons are full of such cases.  In my own case, I cooperated fully, made significant partial restitution and accepted responsibility.  I deserved to be imprisoned, just not in excess of child molesters, pornographers and second degree murderers.

Criminals must be held accountable for their crimes and accept responsibility for their behavior.  But, the criminal justice system must be fair.   Punishment must correlate to the crime and sentences must be transparent with application of restorative justice principles to return a remorseful, rehabilitated person to the community.