The biggest racial disparity in the sentences handed down to drug offenders is for crack-related crimes. According to the U.S. Sentencing Commission, 79% of 5,669 crack offenders sentenced in 2009 were black, versus 10% who were white and 10% who were Hispanic. For decades, state and federal sentencing laws have punished crack offenses far more harshly than powder cocaine offenses. Before 2010, federal law contained a 100:1 disparity; crack offenders faced a 10-year mandatory minimum for carrying 10 grams of the drug, while the same penalty would not apply to a powder-cocaine offender unless they were caught with 1,000 grams.
Thankfully, in 2010 President Obama signed into law the Fair Sentencing Act (FSA), which reduced the crack/powder cocaine federal sentencing disparity to 18:1. While the FSA did not conclusively end racially tinged disparities in federal drug sentencing laws, it was a step in the right direction. What the FSA did not address, and what no federal or state sentencing reform law can address, are the racial disparities involved in plea polices.
Elected prosecutors play a large – and largely unnoticed – role in exacerbating and maintaining our system of mass incarceration both locally and across the nation. The prosecutor’s total control over the plea agreement process dictates which defendants go to trial, and the lengths of prison terms for the 95% of defendants who give up their right to a trial and plead guilty.
Yet plea agreement policies are often shrouded in secrecy. Almost all prosecutors consider their process of deciding which defendants get which kinds of pleas “work product,” which makes plea policies impervious to Freedom of Information Act requests and disclosure motions. Thus, plea negotiations occur in seclusion from the light of accountability. But sometimes, the sunlight can penetrate.
The Pima Liberator has obtained an undated copy of the Pima County Attorney Narcotics Unit “plea policy guidelines.” These guidelines were set by Pima County Attorney Barbara LaWall, and they dictate to her line prosecutors which kinds of plea agreements they are allowed to offer to which kinds of offenders.
Per the Pima County Attorney’s own plea guidelines, there is an almost 3:1 disparity between how much crack and how much powder cocaine will cause that office to require a defendant to serve prison time for possessing drugs for sale. It is also worth noting that the Pima County Attorney remains far more interested in sending low-level crack dealers to prison than people who sell pills like Oxycodone and Percocet, despite the increasingly fatal effects these pills are having in Pima County.
The Pima County Attorney has never publicized or explained her insistence on a nearly 3:1 crack/powder cocaine prison disparity, and considering the historic opacity of the process used to justify which defendants go to prison, it is highly unlikely she will do so now. But like so many other aspects of our criminal justice system, this plea policy raises serious questions about who we are sending to prison, and why. Finally, the dictates of plea policy clarifies a truth which those working in the criminal justice system have long known; that the County Attorney considers themselves and not judges the final arbiter of who, in their own language, “must serve prison time,” and for how long. This is further evidence – not that any more was needed – that in today’s criminal justice system power over freedom vs. imprisonment, and even life vs. death lies almost exclusively with the prosecutor.
– Joel Feinman