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Federal Prisons Erupt

At least five federal prisons erupted in violence within days after a vote in the U.S. House of Representatives to overrule a recommendation by the U.S. Sentencing Commission to end the 100 to 1 sentencing disparity between crack and powdered cocaine offenses. Information on the uprisings was sketchy. There were reports of over $1 million in damages to the prison at Talladega, Alabama. Not reported by the press were details such as how prisoners in Lewisburg, Pennsylvania fashioned a homemade "cannon" and fired it at advancing Emergency Response Team (ERT) members.

The uprisings were widely reported by the corporate media. Most newspaper reports, however, were buried well off the front pages. The corporate media focused on accounts from "official spokespersons" who universally denied that the rebellions were related to the vote in Congress. Typical of the type of reporting are the following quotes from newspaper articles: "Faye Pollard, a spokeswoman for the Federal Bureau of Prisons said Sunday the cause of the outbreaks was still being investigated and could not necessarily be attributed to the vote in Congress;" and "Officials were unsure whether the attack [against guards at El Reno prison] was related to the other disturbances." (Associated Press) Another typical quote was, "At her weekly Justice Department news conference, Attorney General Janet Reno said she had yet to receive a conclusive report on what triggered the uprisings..." (Reuters).

A review by PLN of over thirty news reports turned up only a single quote from a prisoner involved ( USA Today ). The majority of news articles featured only quotes from official BOP spokespersons. A few, however, included quotes from "unofficial" sources. The Chicago Tribune quoted the president of a local union that represents prison guards: "The inmates said they were trying to send a message to the U.S. government. They said the [100 to 1 sentencing] law is racially motivated."

The seeds of this prisoner rebellion were planted in 1986, at the height of the War on Drugs. Congress passed severely repressive mandatory sentencing guidelines which for the first time made a distinction between crack and powdered cocaine. Under the guidelines people convicted on federal charges for possession of five grams of grams of crack are punished with a mandatory minimum of five years without the possibility of parole, even for first time offenders. By contrast, possession of 500 grams of powdered cocaine -- 100 times the amount of crack -- carries a five year mandatory minimum.

Crack is the only drug that carries a mandatory prison term for possession whether or not the intent is to distribute. Possession of powder cocaine or heroin without intent to sell is a misdemeanor with a maximum one year jail term.

Since 1986 there has been a wealth of statistical evidence gathered to show that the crack laws are targeted, through selective enforcement and prosecution, almost exclusively at poor blacks and Latinos. Even though studies indicate that the majority of crack users are white, in the federal courts of sixteen states not a single white person was tried for crack offenses between 1987 and 1992. When enforcement officials arrest blacks for possession of crack, they are served up to federal prosecutors for long mandatory sentences. When law enforcement officials arrest whites for crack they are handed over to local prosecutors and sentenced to probation or short jail terms.

About 13% of monthly drug users are black, but in terms of drug possession black people account for 35% of arrests, 55% of convictions, and 74% of all prison sentences. Many critics use these numbers to argue that the War on Drugs is in reality a racist war being waged against blacks. Though the numbers bear this out, the war is truly being waged against the poor. Because of racism, a disproportionate number of poor people in this country are black (and Latino), masking the true objective of this war: to criminalize poverty. When the economy no longer offers any realistic economic opportunities for the poor (especially people of color), those who enjoy the fruits of steadily increasing corporate profits must protect their flank against riot, rebellion, uprisings and overthrow. Dictatorships typically employ death squads to make the troublesome poor "disappear." In the U.S. this function has been served by heavily armed squads of law enforcement officials armed with federal drug laws which allow them to effectively target "troublesome elements" and bury them alive in federal prisons.

Though some point to the fact that the proliferation of drugs has hardly been stemmed, and offer this as an argument that the War on Drugs has been a failure, the corporate ruling class look at the boom in prison populations and must consider the war a huge success.

There has been organizing and struggle on the other side of this war. Because of the clearly unjust sentencing disparity of federal drug sentencing guidelines, a grass roots movement arose to work within the system for reform. Leading this movement is the group Families Against Mandatory Minimums (FAMM). FAMM has worked extremely hard to draw attention to the 100/1 sentencing disparity. PLN has reported on FAMM in the past, and praised the organization as being highly dedicated to the struggle for justice, and given them high marks for their organizational effectiveness. FAMM was instrumental in generating media coverage on the issue, organizing protests, letter writing campaigns, petitions, and lobbying Congress for reform. After years of organized opposition, it appeared that FAMM was on the brink of victory. In May of 1995 the U.S. Sentencing Commission formulated a recommendation to reduce the sentences for crack possession to bring them in line with sentences for powdered cocaine. [See: PLN Oct., '95]

This remarkable turnaround by the Sentencing Commission was due almost entirely to the efforts of FAMM to collect statistical data on sentencing disparities and see that the data was widely disseminated. When the Commission ruled to reduce crack sentences they said, "Federal sentencing data leads to the inescapable conclusion that Blacks comprise the largest percentage of those affected by the penalties associated with crack cocaine." Judge Richard P. Conaboy, chairman of the Commission, said, "When we saw those statistics... our theory was that a law, no matter how well intentioned it was, if it's causing such discrepant results, then the law has to be changed and a new method has to be installed."

The Sentencing Commission recommendation to reduce penalties for crack cocaine offenses was slated to go into effect on November 1, 1995. What is remarkable is that if Congress had not voted at all the recommendations would have automatically gone into effect. On October 18th the House voted 332 to 83 against the proposed sentencing reform. It was the first time Congress had voted not to accept any of the over 500 recommendations sent to it since the Sentencing Commission was established.

Jesse Jackson, speaking at the Million Man March on October 16th, spoke against the 100/1 sentencing disparity and urged Congress to ratify the sentencing reforms. Anybody who thought that Jesse was speaking with the voice of the oppressed, however, should note what he said six days later, after the prison rebellions erupted. Speaking to prisoners at Joliet, Illinois State Prison, Jackson used the voice of political sound bite opportunism as he urged prisoners not to react with more violence. "There are people on the outside, in Congress and at other levels of government who are working to change the laws," Jackson said, "but they [prisoners] must help us by cooperating and exercising the same kind of discipline and dignity that we saw last Monday at the Million Man March."

On October 30th, 1995, Bill Clinton signed into law legislation that rejects the Sentencing Commission reforms. "I am not going to let anyone who peddles drugs get the idea that the cost of doing business is going down," Clinton soundbited to the press. Speaking from the other side of his neck, Clinton acknowledged the disparities, saying that "some adjustment is warranted," calling for "further review of the issue" by the Sentencing Commission.

The stroke of Clinton's pen on that legislation effectively snuffed all hope of politically reforming the 100/1 sentencing disparity. Clinton and Attorney General Reno have hinted that the only reform they might consider would be a plan that includes increased sentences for powdered cocaine.

Efforts toward challenging the 100/1 sentencing laws through judicial reform have been equally fruitless. There have been two main legal challenges to these laws. The first argues that the statutory distinction between "cocaine" and "cocaine base" (crack) is so vague that it does not provide sufficient notice to individuals that the conduct they are engaging in (possessing or selling crack, as opposed to powdered cocaine) is subject to criminal penalties. In some cases experts have testified that there is no pharmacological difference between the two forms of cocaine. This argument has been used successfully in a district court in the 11th circuit ( U.S. v. Davies , 864 F.Supp. 1303) but is pending appeal in the 11th circuit (Case No. 95-8057). The 11th circuit will almost certainly reverse, bringing itself in line with other circuits. See: U.S. v. Blanding , 53 F.3d 773, (7th Cir. 1995); U.S. v. Jackson 64 F.3d 1213 (8th Cir. 1995); and similar cases in the 9th and 5th circuits, as well as unpublished decisions in the 4th circuit which have all rejected the "void for vagueness" arguments.

The other main legal challenge has argued that the federal drug laws violate equal protection because the statute is racially discriminatory as enacted and/or applied. All courts to have considered whether the federal statutes were enacted with racially discriminatory intent have rejected this claim. See: U.S. v. Clary , 34 F.3d 709 (8th Cir. 1994) (cert. denied); U.S. v. Moore , 54 F.3d 92 (2nd Cir. 1995); U.S. v. Cherry , 50 F.3d 838 (5th Cir. 1995); U.S. v. Dumas , 64 F.3d 1427 (9th Cir. 1995).

In Dumas the court said that the plaintiff must show that equal protection is violated "when the decision to prosecute is based on impermissible factors such as race.... To prove selective prosecution based on race, however, the defendant must show both discriminatory effect and discriminatory purpose." Dumas provided sufficient statistical data to show that application of the federal drug statutes does indeed show a very clear discriminatory effect, but he "has offered no evidence of discriminatory purpose." Dumas thus failed because he was unable to show evidence to the court that U.S. Attorneys selectively prosecute black defendants and selectively choose not to prosecute similarly situated white defendants.

In another 9th circuit case, U.S. v. Armstrong , 48 F.3d 1508 (9th Cir. 1995), attorneys for Armstrong and his four co-defendants decided to obtain just the evidence they would need to show discriminatory, selective prosecution by U.S. Attorneys. A district court judge granted the defendants' discovery motion and ordered prosecutors to provide detailed racial data and explain how they chose which crack cases to pursue in federal court.

The government appealed the discovery ruling to the 9th circuit, which upheld the district court's discovery motion, ruling that defendants had presented facts "which establish a colorable basis to believe that the government has engaged in selective prosecution." Only expert testimony about the prosecution's decision-making process and motivation could rebut that, the appeals court said.

The government has appealed Armstrong to the U.S supreme court, which will hear the case ( U.S. v. Armstrong , 95-197). A reading of the dissent in the 9th circuit gives a strong indication of which way the supreme court may rule. The dissent argued that "Resources intended for controlling crime, one of the nation's most pressing concerns, will be [used for] chasing statistics instead... with the prospect of having to fight discovery and justify every charging decision, it will not be surprising for crack prosecutions to wane." If the supreme court ruling agrees with the dissenting argument, it will effectively snuff out any challenges of racial disparity in the prosecutorial application of federal drug laws. Defendants would be unable to file for discovery of the only information they could reasonably use to show discriminatory purpose on the part of federal prosecutors. We at PLN hesitate to predict supreme court decisions, but I will go on record with the prediction that the Supreme Court will reverse the 9th circuit in Armstrong .

Martin Luther King said that "riot is the voice of the unheard." Prisoners have, quoting Jesse, "cooperated and exercised discipline and dignity" for nearly a decade while awaiting fruition of legitimate efforts to work within the system for political or judicial reform of the 100/1 drug laws. When Congress and Clinton chose to keep those reforms from being implemented, federal prisoners across the country spoke with the voice of the unheard. Through effective government and media spin control, the federal prison uprisings were little more than a murmur. But as the director of the ACLU told the New York Times, "When people understand the truth about the way these laws are imposed, the fact they've had no deterrent, and the race-based nature of these prosecutions, then I think a sleeping giant is going to roar."

Sources: Revolutionary Worker ,Corrections Digest , numerous newspaper articles.

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