DRUG WARRIORS - Government Officials

MICHAEL S. GELACEK

In 1986, what was happening with cocaine and crack?

You had people talking about the allegedly tremendous amount of violence
surrounding the crack cocaine traffic. You had a hysteria built up that
politicians have to respond to. And they did. Their response was to turn to
tougher sentencing. Look at quantities of drugs and try to disassociate
what was actually going on from the quantities. What we wound up with was
an awful lot of people going to jail. And that's still going on. . . .

There was a lot of association of crack to violence. But when we looked at
it, what we found is what's true with any new drug that comes on the
market. The violence that's associated with the drug is not people who use
the drug going out and committing crimes on innocent bystanders, although
some of that occurs. Most of the violent crimes associated with crack
cocaine had to do with setting down trafficking patterns, and who was going
to stand on what street corner. Once that settled out, the violence died down.

There was a lot of bad information that went around, and it all hit at the
same time. And the media was part of that; the politicians were part of it.
Everybody was part of it. There was a genuine concern, with a lot of bad
information. What I fault the politicians for is, now that they know the
facts, now that they've looked at the outcome, they won't do anything about
it, and it's just not fair. Crack cocaine penalties and sentences
surrounding them are not fair.

How were crack sentencing guidelines developed?

If you go back and look at the Congressional Record, you'll see that they
tossed around all kinds of numbers for ratios. They ultimately settled on a
100-to-1, and I don't remember where that came from. I think they plucked
it out of the sky. They talked about 20-to-1, 50-to-1, 25-to-1. In the
initial ratios between powder and crack cocaine, no one talked about
100-to-1. That came about as a one-upsman contest between the House and the
Senate--who could be tougher on crack cocaine. And they both proved they
could be very tough.

What was the goal of mandatory minimums?

If you talk to people in the federal judiciary, there was a tremendous
amount of resistance to mandatory minimums and sentencing reform in the
judiciary. Judges will tell you, "Look, I'm fair in the way I sentence
people. It doesn't make any difference whether you're black or white." And
to a large extent, that was true.

There was a cultural bias in sentencing in this country. That's what led to
sentencing reform. Reform took the course of mandatory
sentencing--mandatory minimums, everybody goes to jail. We wanted honesty
in sentencing. We wanted the public to no longer worry about how long
somebody actually went to jail for if they got a ten-year sentence, they
did ten years. What we wound up with is a sentencing system that's based on
quantity and conspiracy in the drug area, and that leads to enormously
lengthy sentences. You can go to jail for life in this country very easily.
. . .

Where we've taken drug penalties is absurd, in my estimation. It's not
fair. We've gone to punishment as a first resort in this country. It ought
to be the last resort. The last thing we should do is take someone's
freedom away from them. I know they committed a crime. I know they're
criminals, but we don't need to lock up everybody that's involved in the
drug trade. They're not a danger to society. There are ways to deal with
some of these people other than locking them up.

We know treatment works. We don't spend a lot of money on treatment. We
know that education works. We don't spend a lot of money on education. One
thing we know that doesn't work is incarceration. We don't cure anybody by
putting them in jail. All we do is take them off the streets. It's a pretty
effective deterrent for one individual, and it makes people feel safer
about whether or not that person is going to be back in their community,
but it doesn't change anything.

You could sit around in a social setting at a bar with your friends and
find yourself taking a ride from a friend of a friend, who happens to have
50 kilos of cocaine in his trunk that you know nothing about. You get
stopped because the DEA or someone's been watching this individual. And, lo
and behold, you're in the car with your friend and the driver, and there's
50 kilos of cocaine in the trunk. Now, you didn't have anything to do with
it. You didn't even know it was there. But the way the sentencing system in
this country works, we give people credit for substantial assistance to the
authorities. The driver's going to say that you were part of the
conspiracy, because he's going to want to do everything he can do to reduce
his sentence. Your friend will probably claim you were a part of it if he
knew about it or she knew about it. You're left holding the bag. And if
you're holding a bag for 50 or more kilos of cocaine in this country,
you're going to go to jail for a long, long period of time....

What is an example of the effect of mandatory minimums?

The Curry case in Washington. A young man who was a basketball player got
involved in a situation where he had absolutely no idea what was going on.
Knew virtually nothing, and he's a little bit intellectually challenged. He
got involved with some people that were trafficking in narcotics. When that
conspiracy was broken up by the authorities, he got the full weight of all
the drugs involved and is doing some 20, 25 years in the federal jail now.

It's a sad story, because he really didn't know what was going on. He did
the stupid thing; people do stupid things. You shouldn't have to go to jail
for 20 years for being stupid. . . . Look at how we deal with murderers and
everybody else in this country. Violent offenders get out quicker than
low-level drug dealers do. That's not right. . .

I can't tell you the number of politicians that I've sat with who, in the
privacy of their office will say, "This is just not right. We know it's not
right. But, politically, there isn't a whole lot we can do about it because
everybody wants to be tough on crime. Until the public attitude changes,
we're not going to change." I just wish there was more courage involved in
the drug area because we need to change this. . . .

Whoever's got a lawyer or whoever has some street sense, there's a race
going on to see who can get to the prosecutor first to roll over on as many
people as they can, because they're going to get the biggest break. They
might not even go to jail. The real reason why quantity-driven guidelines
and conspiracy laws are absurd is because it focuses law enforcement's
attention on the lowest level of the drug trade, the guy standing on the
street corner. And law enforcement will tell you that, "Well, that's why we
arrest those people, because we want to work our way up the chain." That's
okay, if you want to do that. But the penalties ought to be based upon what
your role in the conspiracy was. If you're just dealing in two or three
nickel bags, that's what you ought to be charged with. That's what you
ought to be penalized for. . . . The Sentencing Commission did a public
opinion survey, three years ago, maybe. We found that people wanted to be
tough on crime but what they thought was tough and what the guidelines was
tough were two different things, particularly in the drug area. . . .

What is your assessment of the costs of the current prison situation?

The prison population is out of control. We can't build jails fast enough.
The cost is astronomical. What's scary about the prison problem in this
country is that it's becoming a business. We're putting prisons online
every month in this country. Sooner or later, the public is going to
understand that it costs a tremendous amount of money to keep these people
in jail for long periods of time. . . . Law enforcement does not focus on
people who traffic in powder cocaine. They're still not going to be out
chasing around the suburbs or the boardrooms of corporate America or
anyplace else. . . .

The other thing we know is that treatment works in the drug area. But our
response is, "Lock 'em up." Our response to everything is, "Put somebody in
jail." There are better ways to go about it, and there are cheaper ways to
do it. There are alternatives to incarceration that we ought to try. . . .

Is our treatment of drug offenders related to race?

The commission issued a report that said that there was no intent to create
a racial impact. There is a racial impact. It is discriminatory.
Ninety-five percent of the people that go to jail for trafficking in crack
cocaine are either black or Hispanic. The majority of them are black,
probably ninety percent of them. And there's another five percent that are
Hispanic. And I want to tell you, if it were the other way around, if
ninety-five percent of the people doing five years or more in jail for
trafficking in crack cocaine were Caucasian, we wouldn't be sitting here
talking about it, because the law would have never passed in the first
place or it would have been gone a long time ago. . . . You don't have to
be a rocket scientist to figure out that there is a racial overtone. And we
haven't done anything to change that. I don't think Congress sat down and
said, "This'll really impact on the black and Hispanic community." But the
fact remains that it does.

There's a logical reason for that. It's the best use of their resources. If
you can go to an urban area and go to a narcotics trafficking area and make
ten arrests in one night, that's what you're going to do. You're not going
to go out to Great Falls, Virginia. There's just as much drugs in suburban
America and rural America as there is anyplace else. But where you have to
spend months trying to figure out where those drugs are and who's dealing
in them and chasing around to different people's homes, it costs a lot of
money in resources to do that. So nothing will change. . . .

What was the Sentencing Commission's recommendation for crack sentencing?

The commission recommended that we equalize penalties for crack and powder
cocaine. That would have meant that if you trafficked in 500 grams of
powder, you get five years. If you trafficked in 500 grams of crack you get
five years. Same ratio.

How rare is it for Congress to overturn a commission's recommendation?

It's only been done once. Of all the amendments that have been sent to
Congress--and there have been some 500 or 600 amendments to the guidelines
since their inception--they've only rejected them once. . . . They were
willing to step on our suggestions in changing the crack cocaine penalties.
It only happened once, and probably will never happen again because they
leave the amendment process pretty much alone and accept the view of the
Sentencing Commission. That's why they put those people in place. This one
was just so politically charged that they didn't feel they could go along
with it. . . .

It's significant that Congress rejected the amendments in the crack cocaine
area, because they'd never done it before. They allowed the Sentencing
Commission to function as a body of experts and bring that expertise to
bear upon the system. . . . By rejecting the Commission's recommendations
in the crack cocaine area, in many ways, it becomes a useless exercise,
because the message that is sent is, you guys are okay in the sentencing
area as long as we agree with what you're doing. Well, sometimes you have
to be in front of the train. Sometimes you have to lead the public's
opinion instead of reacting to it. . . .

PBS Frontline Series Follow Up by Tom O'Connell, Kevin Zeese, Doug McVay,
and Eric Sterling:
http://www.drugsense.org/dsw/2000/ds00.n170.html#sec1

Campaign for the Restoration & Regulation of Hemp's HempTV website has the
full, two part, total of almost 4 hours of video of the PBS Frontline "Drug
Wars" available on the web for free video streaming using the Real Player 8.

To watch Part one of Drug Wars, go here:

http://www.crrh.org/hemptv/docs_drugwars1.html

To see part 2, go here:

http://www.crrh.org/hemptv/docs_drugwars2.html

Click this link for an index to this series:
http://www.mapinc.org/drugnews/v00.n1551.a01.html