Marching With Hate

Only people tortured by a terrible thirst could have been assembled in such numbers at the behest of so detestable a demagogue as Louis Farrakhan, the white-bashing, Jew-hating, violence-threatening, sexist, homophobic leader of The Million Man March.

The thirst is understandable. It’s a thirst for leadership, and for hope of breaking the cycle of poverty, despair, and self-destruction that so disproportionately afflicts African-Americans.

But how much hope can be derived from an event at which (according to a Washington Post survey of 1,047 people) 87 percent of the participants queried had a "favorable" view of Farrakhan? This is a man who just days before had bared his fangs by smearing Jews as "bloodsuckers," a man whose history is littered with the vilest kind of hate speech and visions of violence against Jews and other whites.

And how much reconciliation and atonement can be derived from an event at which souvenir stands did a brisk business in T-shirts celebrating the acquittal of a black man who (the overwhelming evidence shows) had viciously murdered two white victims?

To understand the void now being filled by the ascension of Farrakhan, we might start with a look at President Bill Clinton’s speech on Oct. 16 (Farrakhan’s big day). While making some reasonable (if pallid) points about the need for interracial understanding, the president displayed the sort of pious hypocrisy that has stripped him of any standing to exercise moral leadership when he lamented "unequal treatment" of black people by the criminal justice system:

Gingrich the Executioner

When barbaric, demagogic, idiotic, patently unconstitutional proposals emanated from members of the once impotent Republican minority in the House of Representatives, it was no big deal.

But when such proposals spew from the mouth of House Speaker Newt Gingrich, the most powerful congressional leader in decades, they must be taken seriously. And one of his latest-a mandatory death penalty for importers of illegal drugs, enforced by mass executions of "27 or 30 or 35 people at a time"-is real cause for alarm. Despite the unlikelihood of any such proposal surviving judicial review, the fact that a savvy (if cynical) politician like Gingrich can predict that it would win popular approval by an 80-20 margin evidences the sad state of the body politic. So the bill that Gingrich plans to introduce in September should not be written off as just another boyish excess.

Here’s how he put his idea at an August 25 fund-raising dinner in Athens, Georgia:

If you import a commercial quantity of illegal drugs into the United States, it is because you have made a personal decision to get rich by destroying our children. I have made the decision that I love our children enough that we will kill you if you do this. The first time we execute 27 or 30 or 35 people at one time, and they go around Columbia and France and Thailand and Mexico, and they say, "Hi, would you like to carry some drugs into the U.S.?" the price of carrying drugs will have gone up dramatically. Perhaps Gingrich would like to commemorate the first of his mass executions by personally bulldozing 30 or so drug mules into a mass grave-sort of a Newt-style ribbon-cutting ceremony.

Courage, Cowardice on Drug Sentencing

This is a story about how the U.S. Sentencing Commission finally did something wise and courageous, only to have its legs chopped off by Attorney General Janet Reno and Assistant Attorney General Jo Ann Harris.

First, some background:

A seller of powder cocaine gets a federal mandatory minimum sentence of five years only if caught with more than 500 grams.

But a first-time seller (or even a simple possessor) of crack cocaine gets the same five-year sentence if caught with just five grams-about one-sixth of an ounce.

And lots of small-time crack users, sellers supporting their habits, couriers, lookouts, minor accomplices, girlfriends, and other bit players-many of whom have no record of violence, and might be salvaged by short-term, shock incarceration and by drug treatment-are currently serving five-year sentences.

Lots more such people have been slammed with 10-year mandatory minimums for getting caught with 50 grams (less than two ounces) of crack. That’s one one-hundredth of the amount of powder cocaine (5,000 grams) that would bring the same sentence.

This 100-1 quantity ratio is especially absurd in light of the fact that powder cocaine can easily be converted into crack by cooking it up with a bit of baking soda and water. It is perhaps the most irrational aspect of the grotesquely unfair sentencing scheme-deplored by federal judges, including Reagan and Bush appointees, almost without exception-that Congress has ordained for drug offenders in statutes passed in 1986, 1988, and 1994.

Mandatory Sentence, Minimum Sense

Dear President-elect Clinton: Your wife Hillary has spoken eloquently about how painful it was for you to put your own brother behind bars, when you gave the authorities the green light to bust Roger Clinton Jr. for selling cocaine in 1984. And your brother, now drug-free and doing well, has said that you, and 15 months in federal prison, saved his life by breaking his cocaine habit.

Think about this: Your brother might well have served a mandatory prison term of at least five years, without parole, if the current federal drug sentencing laws had been in effect when he was arrested. And with a little bad luck-if, for example, his drug of choice had been crack cocaine-he could still be behind bars, serving a 10-year mandatory term.

What chance would a sentence like that have left Roger of salvaging a decent life? What purpose would it have served in the war against crime? Would it have been just?

This example should burn in your conscience until you do something about the most outrageous single source of injustice, waste, cruelty, and stupidity in the federal criminal-justice system today: the sentencing of non-violent, small-time drug offenders like Roger, by the thousands, to prison terms of five, 10, and even 20 years without parole, under the system of mandatory minimum sentencing laws that the Reagan and Bush administrations have whooped through Congress since 1986.

A Quiet Crisis in the Courts

There is a cancer in the federal criminal-justice system. It gets little attention from Congress, the executive branch, the media, or the public. And it is spreading fast.

Its importance to people caught up in the system, and to the judges who administer it, dwarfs that of the federal death penalty, the exclusionary rule, Miranda, date rape, gun control, and the other issues that generate headlines and heat.

The problem is federal criminal sentencing: its roots are the destruction of judicial discretion by the Sentencing Reform Act of 1984 and the mandatory minimum sentences passed by Congress since then in response to public pressure to get tough on drug abuse and crime.

The system of "guideline" sentencing ushered in by the 1984 act is "a dismal failure," as Judge Jose Cabranes of the U.S. District Court in New Haven, Conn., asserted in a speech at the University of Chicago Law School last week.

He cited "a near consensus among those who know most about the complex and difficult business of sentencing-trial judges, probation officers, defense attorneys, and many front-line prosecutors-that there is something profoundly wrong with this guidelines system and that substantial reform or abolition is the answer."

The 1984 act grew out of complaints that trial judges had such unbridled discretion that similar defendants got widely disparate sentences based on the predilections of the judge.

Congress created the seven-member U.S. Sentencing Commission to set binding guidelines based on a calibrated scale of defendants "offense levels" and criminal histories, and abolished parole.

With narrowly defined exceptions, judges were obliged to sentence every defendant within a range set by the guidelines, by choosing one of the 258 boxes in the Sentencing Commission’s grid.

Amicus Curiae for the Police State

"This is a free society." Solicitor General Kenneth Starr told the Supreme Court last week.

"You have the right to say no."

Starr was discussing a traveler’s options when confronted by two gun-toting sheriff’s deputies who corner him in the back of a bus, demand his ticket and identification, and then request "permission" to search his bag for drugs.

The solicitor general’s argument for the Bush administration would, if sustained, move us a step down the road toward a police state.

For Starr was pushing to allow police to hunt for drugs by interrogating at random tens of thousands of innocent people and soliciting "consent" to search them or their bags. Such techniques are spreading "across the country," he declared with evident enthusiasm.

The linchpin of Starr’s argument, eagerly seconded by Chief Justice William Rehnquist and Justice Antonin Scalia, was the transparent fiction that those who "consent" when approached in this manner know that they are perfectly free to refuse or walk away.

The case heard last week, Florida v. Bostick, arises from an operation in which police board interstate buses at regular stops and go down the narrow aisles interrogating passengers.

Two deputies wearing green "raid jackets" boarded a Miami-Atlanta bus at its Fort Lauderdale stop. They had "no particular reason to suspect" that anyone on the bus had illegal drugs, Starr conceded in his brief. The driver exited and closed the door. The officers went directly to the back row, where Terrance Bostick was reclining. Partially blocking the aisle, one officer questioned Bostick while holding a gun inside a small zippered pouch; at one point, Bostick recalls, the officer reached inside the pouch, putting his hand on the pistol.

The officers say Bostick consented to a search of his bag. They found cocaine. He got five years.

Don’t Throw Away That Key

Ronald Harmelin had no criminal record until two police officers stopped him early one morning in 1986 in Oak Park, Mich., for failure to make a complete stop at a red light.

Now he is in prison for life, without parole-the maximum penalty in Michigan for first-degree murder.

Harmelin did not kill anyone. His sentence was based solely on the officers’ discovery of 24 ounces of cocaine in the trunk of his 1977 Ford Torino.

An unemployed, drug-addicted, pool-hustling, 45-year-old Air Force veteran who had been an honor guard at President John Kennedy’s funeral, Harmelin claims he was just a "mule" transporting the cocaine to Detroit for his supplier.

The prosecution claims, but did not prove, that he must have been a major supplier himself, given the street value of the cocaine-more than $60,000-and his possession of some marijuana cigarettes, drug paraphernalia, $3,500 in cash, a beeper, and a coded address book.

Under Michigan law, such distinctions are irrelevant. Once the cocaine weighed in at more than 650 grams (23 ounces), the life sentence followed automatically. The judge had no discretion to consider whether Harmelin was a dangerous character, a good candidate for rehabilitation, or anything else about him-even whether he had ever sold drugs to anyone.

The Supreme Court will hear arguments Nov. 5 on Whether Harmelin’s sentence violated the Eighth Amendment ban on cruel and unusual punishment.

The sentence surely was both cruel and unusual as those words are commonly understood. But that’s not necessarily to say the justices will strike it down.

Mangled Sentence: Read It and Weep

Robert Freeman did some insider trading. John Poindexter deceived Congress. Fred Hagler helped another guy sell 2.3 ounces of crack.

They have two things in common: None deserves to go to prison. Yet all probably should-for a few months-to deter others from doing what they did.

But that’s not quite the way it’s going to turn out. And the differing prospects of these three men shed an unflattering light on our system of justice and our society’s moral sense of proportion.

Freeman, former head of arbitrage at Goldman, Sachs & Co., was sentenced April 17 to four months (plus a $1 million fine) for seeking inside information about a pending takeover and using it to unload $500,000 in options.

Poindexter, convicted April 7 on five felony counts of false statements to Congress and obstruction of its investigations into the Iran-Contra affair, faces a theoretical maximum of 25 years.

But he will probably get two years or less-and maybe no prison time at all, like his co-conspirators Robert McFarlane and Oliver North.

Fred Hagler acted as middleman between a small-time drug dealer and buyers (who turned out to be undercover operatives), and attended the sale. He was sentenced in April to 20 years, without parole.

A 37-year-old father of three, he will be locked up until at least 2007, and that’s if he earns all possible good-time credits. But for an unusual break he received from the prosecution, Hagler would have faced a congressionally mandated minimum prison term of life without parole.

Courtroom of the Absurd

This for a doer of odd jobs who eked out a meager existence with his common-law wife and children in a Los Angeles ghetto, a man who was wiretapped asking a customer for a $60 loan so he could go "down to Toys-R-Us" to buy his little boy a birthday present.

Coercive Encounters of the Worst Kind

It’s after midnight. You are hurrying through the airport with a carry-on bag, impatient to get home from a business trip, looking around for a phone booth to call ahead.

A man keeps pace with you, staying close. He makes eye contact. You look away. Another man hovers nearby. You walk faster. The first man closes in from the side. The other circles behind you. Your heart is pounding.

"Excuse me." He flashes a badge. "Can I talk to you? I’m a narcotics interdiction officer, and we’re trying to stop drugs from coming in here.”

You know you’ve done nothing wrong. But suddenly you’re a suspect. Your hands are shaking.

He asks for your ticket. He asks for identification. He asks where you came from. He asks where you’re going. He asks whether you have any illegal drugs. He asks whether he can look through your bag.

All the while, his partner stands behind you, attentively.

Pop quiz: (1) Are you free to treat the officer like a panhandler, tell him you’re in a hurry and walk away? (2) If you answer his questions until he asks to search your bag, can you then stop, say you’ve had enough of being treated like a criminal, and leave? (3) If you do that, what will the cops do?

To courts such as the U.S. Court of Appeals for the D.C. Circuit, the answers to the First two questions raised by this increasingly familiar scenario are crystal clear: Of course you are free to leave. It’s so obvious that any "reasonable person" would know it.

It follows, these courts say, that such "encounters" are in no way coercive. As long as the police are polite and do not overtly restrict their quarry’s movement, they may ask anyone to consent to be questioned and searched. The strictures of the Fourth and Fifth Amendments do not apply: no need for a warrant, no need for any reason to suspect the targeted individuals of criminality, no need to tell them their rights.

Ten Years For Two Ounces

The American Lawyer

"For the kingpins-the masterminds who are really running these operations, and they can be identified by the amounts of drugs with which they are involved-we require a jail term upon conviction. If it is their first conviction the minimum term often years."- Robert Byrd, Democrat of West Virginia, then the Senate minority leader and a principal sponsor of the Anti-Drug Abuse Act of 1986, on September 30, 1986.

MEET RICHARD Anderson and Susana Sanchez-Robles, drug kingpins.

Born poor into a Louisiana sharecropping family, Anderson left school in the eleventh grade to work. He fought his way into the longshoreman’s union in Oakland in the six-ties, when black-while brawls were part of the job. He did well. Now 48 years old, he is a skilled crane operator with a stellar work record after 24 years on the docks.

Anderson was driving his heat-up 1972 Toyota through Fast Oakland the evening of December 12, 1988, headed for a family birthday party at his sister Marilyn’s house. From there he would go to the docks to work the graveyard shift.

Anderson spotted Michael Lucero at a phone booth. Lucero, the teenage boyfriend of a friend’s daughter, flagged him down. Could he have a ride to Burger King and then home? Sure, for a couple of dollars of gas money.

At the Burger King parking lot, Lucero got out and said he’d be back in a few minutes, Moments later a big man-6 feet 5 inches big-opened the passenger-side door and got in. It was night and a dangerous part of town. Anderson was scared. The big man picked up a yellow paper bag Lucero had left between the two front seats. "Is this the stuff?" he asked. "I don’t know," said Anderson. "What stuff?" The big man took the paper bag and left.

Now Anderson knew this was a drug deal. He was trying to start his car and leave when men with guns and badges swarmed around him.