Obama Administration Seeks to Keep Tens of Thousands Imprisoned Under Unfair Crack VS Powder Cocaine Penalties

by BAR managing editor Bruce A. Dixon

Our black political class wants to feed us outrage over the case of Trayvon Martin. But for 3 years the black press, advocacy organizations and the black political class have ignored the Obama administration's attempt to keep as many unjustly sentenced crack defendants in jail under old and unjust laws as long as possible. Why are they ignoring this, and more importantly, why are we?

Obama Administration Seeks to Keep Tens of Thousands Imprisoned Under Unfair Crack VS Powder Cocaine Penalties

by BAR managing editor Bruce A. Dixon

The reminisces of President Barack Obama about being racially profiled in department stores, and Attorney General Eric Holder's recollections of being stopped for driving and/or running while black don't matter. These two are not philosophers, contributing to some imaginary national conversation on race. One is the most powerful man in the world, and the other his chief legal deputy.

The essence of who and what Obama, Holder and our entire black political class are has nothing to do with what we expect of them. Their essence is not their symbolic value or their self-serving and politically expedient words. Their essence is containd in their actions ---in what they DO with the very real power in their hands. Like we do with the 3 card monte man, we should pay attention to their hands, not their words. In five years of this administration, those hands have been plenty busy.

One of the great expectations many had for the Obama administration, as for the Clinton administration 16 years earlier, was the repeal of the blatantly racist 100 to 1 disparity between the penalties for crack vs powdered cocaine. The forty years war on drugs, prosecuted almost exclusively in poor and nonwhite communities, has provided one of the main tactical excuses for deploying and maintaining the intake mechanisms of our current prison state.

The Obama administration failed to take an innovative, aggressive, justice-seeking lead, either in putting forth the initial provisions of what eventually became the so-called Fair Sentencing Act, or negotiating its provisions in Congress before its eventual passage. With the administration doing all it could to avoid public identification with the measure, Congressional advocates were only able or willing to narrow the gap between crack and powdered cocaine possession penalties from 100 to 1 down to 18 to 1, even though the president's party had a whopping majority in the House and a much thinner margin in the Senate. It wasn't actually a great victory, but the White House was quick to take credit for it, and signed the measure into law in August of 2010.

The Fair Sentencing Act of 2010 did not specify whether its reduction should apply retroactively to all those currently serving time for crack cocaine convictions, whether or not it applied to state or only federal prisoners, or just those sentenced since its passage, or even the exact date its provisions should begin to be enforced at all. The Obama administration not only failed to take advantage of its mandate to pursue justice for tens of thousands of families whose loved ones and potential caregivers and breadwinners were serving unjust and disproportionate sentences – it sent Eric Holder's Justice Department into court to argue against retroactivity, against the reduction of sentences for inmates tried or sentenced since the law was passed, against its being applied to state prisoners, For all practical purposes, as Professor Douglas A. Berman of Ohio State University pointed out in October 2010,

...President Obama's Department of Justice has adopted the advocacy policy that the unfair and now reformed old crack sentencing statute should and must be applied for as long as possible to as many defendants as possible...”

For more than eleven months AFTER the passage of the so-called Fair Sentencing Act, the Obama Department of Justice went into courts again and again seeking to retain and expand the regime of mass incarceration, despite a torrent of appeals from advocacy organizations and the families of inmates across the country. Finally in July 2011, the Justice Department issued a memo to prosecutors declaring that only offenses committed after the August 3, 2010 signing date of the Fair Sentencing Act were eligible for sentencing reduction under its provisions.

Even the US Supreme Court told the Obama administration it was obligated to begin enforcement of the Fair Sentencing Act. But as the defense attorney Alec Karakatsanis put it in the Guardian (UK) last week,

...the US supreme court held last year that the new, more "fair" sentences must be applied to those not yet sentenced.

But that case did not decide the fate of any of the thousands of people already sitting in prison because of what all agree is an unfair law. For those people – sentenced, in some cases, just days or weeks before the Fair Sentencing Act was signed – our society's acknowledgment that they remain in prison for no good reason may not help them at all – because the government did not care to reduce their penalties retroactively when it declared them unjust.

For several years, federal judges have done nothing to remedy this injustice; one famously concluded that the prisoners sentenced under the old law had simply "lost on a temporal roll of the cosmic dice". So, there are American citizens serving tens of thousands of years in prison because, according to all three branches of government, it's just their tough luck?

Apparently so, until two months ago. On 17 May 2013, the US court of appeals for the sixth circuit held that the new, "fair" sentences must be applied to all those previously sentenced under laws that everyone acknowledges were discriminatory. The two-judge majority opinion wrote forcefully (pdf) and with unusual candor about the history of unequal treatment under the old laws. The judges ordered that those sentenced under those laws were entitled to ask federal judges to reduce their sentences...”

True to form, the Obama administration has already gone back to court to argue that the 6th Circuit was misguided in its directive to apply the Fair Sentencing Act. Ominously the White House is on track to appeal the 6th Circuit's enforcement directive to the Supreme Court on technical grounds, which will likely rule that discriminatory impact is somehow NOT invidious and deliberate racial discrimination requiring any enforcement of any particular law. In other words, President Obama and Attorney General Holder, the most powerful pair of black officials in the country, are prepared keep tens of thousands of the prison state's victims under hatches indefinitely. No matter their patter about how they were profiled back in the day. Their actions, not our expectations, and not their words, are who they are in the here and now.

Amazingly, all of this has played out over the last three years under and outside the watchful radar of the 70+ member House Progressive Caucus, the 42 member Congressional Black Caucus, the Congressional Hispanic Caucus, the entire so-called black press, MSNBC and the entire superstructure of corporate-funded advocacy organizations like the NAACP and the National Action Network and their affiliated churches. The black political class, from our preachers to our elected officials to our name brand organizations, are too busy protecting the president's image and their own careers and funding prospects to bother with the actual opportunity of rolling back a little of the prison state.

They'd rather plan for their 50th anniversary March on Washington, at which the real Martin Luther King would be anything but welcome. And come next election, they'll remind us to put on hoodies en masse in memory of Trayvon Martin, as we line up to vote. Our black political class have a keen sense of what's important. It's just not the prison state, not the fates of ordinary black people whom they nominally represent. It just ain't us. Barack Obama and Eric Holder are the president and attorney general of the world's foremost prison state, and they are determined to resist its shrinkage in every possible way.

Our black political class from preachers to presidents, bear close watching. Their hands, that is, not their mouths.

Bruce A. Dixon is managing editor at Black Agenda Report, and a member of the state committee of the Georgia Green Party. He lives and works near Marietta GA and can be reached via this site's contact page, or at bruce.dixon(at)blackagendareport.com.