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Commission Makes Thousands of Prisoners Jailed on Crack Offenses Eligible for Reduced Sentences

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A day after a landmark Supreme Court ruling, the U.S. Sentencing Commission voted unanimously on Tuesday to give federal prisoners jailed on crack cocaine offenses a chance to reduce their sentences. We speak with attorney Deborah Small and Kemba Smith, who was sentenced to more than twenty-four years in prison on drug conspiracy charges. She received clemency in 2000. [includes rush transcript]

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StorySep 17, 1999Kemba Smith and Mandatory Minimum Drug Sentencing
This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: The US Sentencing Commission voted unanimously Tuesday to give federal prisoners jailed on crack cocaine offenses a chance to reduce their sentences. The decision comes a day after the Supreme Court ruled seven-to-two that federal judges can sentence individuals below the guideline recommendations in crack cocaine cases.

The Sentencing Commission’s decision to apply that ruling retroactively means more than 19,000 people currently in prison could be eligible for early release. The decision would reduce sentences by an average of twenty-seven months. The Commission emphasized the early releases would not be automatic, and federal judges would have broad discretion in deciding each individual case. The Bush administration strongly opposed the move to make the lighter sentences retroactive.

Under the current guidelines, possession of five grams of crack cocaine triggers a five-year mandatory sentence, while it would take 100 times that amount to trigger a similar five-year mandatory sentence for possession of powder cocaine. The disparity has long been challenged by civil rights groups, because crack is more often used by African Americans, powder cocaine by whites.

Deborah Small is the executive director of Break the Chains, an organization that works to reduce racial disparities in drug law enforcement. She joins me here in the firehouse studio. Welcome to Democracy Now!

DEBORAH SMALL: Good morning, Amy.

AMY GOODMAN: You have been working, Deborah, on this issue for years. Talk about the significance, first, of the Supreme Court decision.

DEBORAH SMALL: Well, I think the Supreme Court decision is significant in that it continues to expand the line of reasoning that started several years ago in Apprendi and reached a height in the Booker case, where the court said that the sentencing guidelines were merely advisory and therefore judges could apply their discretion in individual cases to decide whether or not to sentence below. Those rulings had not been applied specifically in a drug case. So, doing it in this case involving the crack cocaine sentencing disparity says that even this statutory requirement is something that courts no longer under the guidelines have to apply when sentencing someone in one of those cases.

AMY GOODMAN: Explain how this disparity first began, the difference between the sentences around crack cocaine and powder cocaine.

DEBORAH SMALL: Well, I think it’s important for people to realize that the real issue here is not just the length of sentence, but the amount of drugs involved needed to trigger the sentence. So in 1986, when Congress passed the Sentencing Reform Act, it also passed the Anti-Drug Abuse Act, which established mandatory minimums for drug cases, primarily. And what it did was it said that if you are held accountable for a certain amount of drugs, then you must get a certain sentence. And in the case of crack cocaine, which at that time was relatively new on the scene and there was a whole lot of political hysteria about it, they said that merely five grams of crack would trigger a mandatory minimum sentence of five years. Now, in almost every other drug case, sentences were decided based on what was generally applied in the field, but with the crack cocaine situation, literally you had congressmen bidding on the floor to see who could have the toughest sentence and the lowest amount of drugs.

And the other part of this is that crack cocaine is the only drug for which there is a mandatory minimum federally for mere possession. So in addition to getting five years for a sale of five grams or more, you must get five years for simple possession of five grams of crack cocaine.

AMY GOODMAN: And how many people did this lead to ending up in prison for long periods of time?

DEBORAH SMALL: Well, as you know, prior to the passage of this law, we had only a few hundred thousand people in prison. Since then, we now have over two million people in prison, and over 400,000 of them are there primarily for nonviolent drug crimes. Among the crack cocaine defendants, it’s just been horrendous. I mean, 85% of the people convicted for crack offenses are black, even though every government survey shows that blacks use crack proportionate to their percentage of the population, which would have it be no more than 15% or 16% at most.

But this disparity is driven in part by the low threshold of weight, because in a crack case, they only need to find five grams in order to get a conviction; for a powder case, you need at least 500 grams of powder. And so, one of the real perversities of this law is that it’s encouraged prosecutors to go after making very low-level cases on a federal level and to go more after street-level people than mid-level people. So most mid-level dealers traffic in powder cocaine, not crack cocaine, but because of the disparity in the law, a person who’s moving large amounts of powder cocaine will end up with a less sentence than somebody selling small amounts of crack.

AMY GOODMAN: So the Supreme Court handed down its ruling on Monday. Then followed the US Sentencing Commission Tuesday. Explain the significance of their decision.

DEBORAH SMALL: Well, what’s also interesting about that is that ever since 1995, the Sentencing Commission has been calling for change of this law. When they first developed their sentencing guidelines, they pegged their guidelines for crack-related offenses based on the mandatory minimum 100-to-1 ratio. And, in fact, one of the things that they did was that they made their guideline range actually slightly higher than the mandatory minimum that was required.

And so, in ’95, they had recommended to Congress that they equalize the sentences and get rid of the 100-to-1 ratio and make it one-to-one. Congress rejected that and said, Come back and tell us something again. They came back in 2002 and again in this year and said, “We think that you need to change this. This is causing horrendous racial disparities. We’re not going to recommend that you equalize it, but we think something significantly lower than the current one will do. And in the meantime, we’re going to use our authority to correct the mistake that we made in ’86, when we set the guideline ranges higher than the mandatory minimums.” So they enacted a procedure which reduced crack levels by two offense levels in the federal guidelines, which meant that people now, who had been sentenced between ’86 and now, would be eligible for re-sentencing based on that two-step lowering.

AMY GOODMAN: But they have to go to court.


AMY GOODMAN: It’s not automatic.

DEBORAH SMALL: They do have to go to court, but by making it retroactive, it meant that this about 19,000 people are eligible to apply for re-sentencing. And from what I understand, the process of doing it is something that the judge can do by reviewing the documents and making an order for it. It doesn’t require a very complicated procedure.

AMY GOODMAN: Now, the Bush administration, of course, is against this.


AMY GOODMAN: And the acting Deputy Attorney General said, “Making the revised guidelines for crack cocaine retroactive will make thousands of dangerous prisoners, many of them violent gang members, eligible for immediate release.” That was Craig Morford.

DEBORAH SMALL: Well, you know, again, the fact of the matter is, is that the vast majority of people who were convicted for crack-related offenses have no histories of violence. In fact, one of the things that the Sentencing Commission found repeatedly in its reports that led it to recommend a change in the ratio is that those claims of violence related to crack were outrageously overblown, and, in fact, the incidents of violence related to crack dealing or drug use was minimally higher than that related to cocaine offenses. And so, once again, the administration is engaging in hyperbole in order to push an undefensible position, one that was clearly rejected by the US Supreme Court when it issued its opinion this week. It specifically looked at the issue of violence and said that that was not the case.

And the fact that judges can individually review the cases means that in the case that there is a defendant or someone who’s applying for re-sentencing who shouldn’t get out for whatever reason, they can make that decision on a case-by-case basis. And given that this is the same administration that complained that Scooter Libby’s, you know, twenty-month sentence was too excessive, even though it was firmly within the guideline range, it’s amazing to me that they have the audacity to make this argument.

AMY GOODMAN: Attorney Deborah Small is with Breaking the Chains; she’s its executive director. We’re also joined from Richmond, Virginia by Kemba Smith. In 1994, Kemba was sentenced to twenty-four-and-a-half years in prison under federal mandatory drug sentencing laws. The charges arose from her relationship with an abusive boyfriend. Her case drew support from across the country and around the world. After serving six years in prison, during which she gave birth to her son, Kemba received clemency from President Clinton in 2000. Kemba Smith is now a grassroots organizer, public speaker, soon-to-be-author. She recently completed her first year of law school at Howard University and has founded the Kemba Smith Foundation. Last year, she testified before the Inter-American Commission for Human Rights about her case. Kemba joins us now from Richmond, Virginia. Welcome, Kemba Smith.

KEMBA SMITH: Thank you, Amy.

AMY GOODMAN: And is this true: is today your son’s birthday?

KEMBA SMITH: It is. It is my son’s birthday, but, you know, I give God all the glory, because I know that it was intended for me to be in prison until the year 2016, so I’m grateful that I could even be with my son today and raising him, and — you know, with President Clinton giving me executive clemency. But I still speak for those that I left behind in prison, because I’m very passionate and committed to that cause. And I’m very grateful even in 1996, ’97, ’98, Deborah Small was — you could see she’s a very awesome person, dynamic presenter on this particular issue. She actually was on the campaign for my release and clemency.

But, you know, with my particular situation in my case, I was held accountable for 255 keys of crack cocaine, even though the prosecutor said that I never handled, used or sold the drugs that were involved. So, you know, it’s been very important for me to continue sharing my story, not only to young people, as far as preventative means, so that young people can make healthy choices and know how easy it is to get caught up in the system, but it’s been very important for me even almost seven years later, after having been out of prison, to still push this issue and still try to promote some type of change.

So yesterday’s news and today’s news — well, yesterday and day-before-yesterday’s news with the Supreme Court and the Sentencing Commission, I’m very glad to see that finally, you know, after years, many years, since 1995, when people were really, you know, put a height into this particular issue, that there is a change. But to be quite frank, for myself, speaking from a personal perspective, I’m still somewhat frustrated, and I’ve spoken with Deborah Small about this yesterday and other people that I’ve worked with on this particular issue.

AMY GOODMAN: Kemba, your son was born in prison?

KEMBA SMITH: Yes, he was.

AMY GOODMAN: How old is he today?

KEMBA SMITH: He’s thirteen.

AMY GOODMAN: When we come back from break, I’d like you to tell us your story, what happened to you and how you ended up on this lifelong campaign, this mission, around the drug disparity issue in people who end up in jail. We’re talking with Kemba Smith and Deborah Small. We’ll be back in a minute.


AMY GOODMAN: Our guests are Deborah Small of the Breaking the Chains organization here in New York and Kemba Smith. She is joining us from Richmond, Virginia. In 1994, she was sentenced to twenty-four-and-a-half years in prison. Ultimately she received clemency from President Clinton in 2000. She just finished her first year of law school at Howard University.

Kemba, tell us your story. How did you end up in jail?

KEMBA SMITH: Basically, I was a student in Hampton University in Virginia, I guess similar to young people when they enter college, just transitioning into my new environment and trying to figure myself out and fit in. But I got caught up with this particular guy who was known to have been a drug dealer. I had seen him come on campus and be with different individuals who were students on campus. And we became romantically involved, and I was in a relationship with him for about three-and-a-half years. Initially, everything was — you know, he was Mr. Knight in Shining Armor. But then the relationship turned abusive.

I never, you know, say that there wasn’t anything that I did do within — while I was in the relationship with him, but the things that were done didn’t warrant me receiving twenty-four-and-a-half years in federal prison as a first-time nonviolent offender. And basically, with the way the policies and laws are set up — I think Deborah spoke about the drug weight — and even though, like I had mentioned before, the prosecutor said I never handled, used or sold the drugs that were involved, the government — and I pled guilty — the government still held me accountable for 255 keys of crack cocaine, where the judge wasn’t allowed to just look at my individual conduct or what I personally did within the conspiracy. Because I was held accountable for 255 keys of crack cocaine, I automatically, based upon the sentencing guideline, was given x amount of time and x amount of —-

AMY GOODMAN: Did you understand that, Kemba? When you pled guilty to conspiracy, did you understand the sentence you would get?

KEMBA SMITH: No, I didn’t. And actually, my story is quite complicated. So I did the best I could summing it up in a couple of minutes, but the attorney that I had at that particular time was friends with the prosecutor, and family -—

AMY GOODMAN: You have time here.

KEMBA SMITH: OK. Well, family — my parents thought it was about who you know. And actually, when I signed my plea agreement, ther wasn’t a drug —- there wasn’t even a drug amount on the paper. So later, they ended up, you know, attributing 255 keys of crack. So I didn’t understand that at all. But after I pled guilty and was sentenced and went off to federal prison, I started understanding the laws more and how deep of a hole that I had gotten myself in.

And I guess, you know, one of the frustrating parts about this slow process towards change is the fact that, you know, I know that if I were still in federal prison today, that based upon the recent decisions that have happened in the Supreme Court and US Sentencing Commission, yes, I probably would have gotten at most maybe two years taken off of my 2016 sentence date. So, to me, I would like to see something done on a broader scale that can have much more of an effect, where there is more sensible drug policy with possibly eliminating mandatory minimum drug laws and definitely, you know, passing a bill that would make the 100-to-1 ratio, as far as crack-versus-powder disparity, to make it equal, one-to-one. But unfortunately -—



AMY GOODMAN: Tell us about the women you met in jail and also whether you know specifically whether they will be affected by the US Sentencing Commission decision following the Supreme Court decision this week.

KEMBA SMITH: Yes, I knew women that had twenty years, thirty years. I knew two women that had a life sentence because of their association, one with a boyfriend who was a drug dealer, another one who had a brother that was a drug dealer. And I believe the majority of them that I knew that had crack cases, like I mentioned with my particular situation, at most, they will probably receive, you know, somewhere in between fifteen to twenty-four months off their sentence.

But still, you know, to have a thirty-year sentence, and two years -— yes, a little bit is something, but it’s not enough, in my opinion. It’s just not enough, being that you know the judge — this government has acknowledged that it has a racially disparate impact with the 100-to-1 crack ratio, crack-powder ratio. And I’m just hoping that Congress will step up and realize: OK, the US Supreme Court has acknowledged this problem; now, what are we going to do?

AMY GOODMAN: Deborah Small, how unusual is Kemba?

DEBORAH SMALL: Well, actually, unfortunately, her case is not unusual at all. Two years ago, our organization published a report called “Caught in the Net: The Impact of Drug Policies on Women and Their Families.” And specifically, we talked about the ways in which our federal laws apply these kinds of conspiracy provisions to charge women with drug offenses, not based on their own conduct, but their associations, the fact that their children may be involved in drug dealing, their boyfriends, other family members. There are literally thousands of women languishing in federal prisons all around the country today who have gotten extremely long sentences under these kinds of conspiracy provisions that were enacted two years after the mandatory minimums.

And it’s not just women who are affected. All throughout the US, but particularly in the South, you see lots of cases where prosecutors or police go in and they round up large numbers of young people or African American and Latino people and charge them with trafficking drugs. And because they may have ridden in a car with someone or picked up a phone and made a phone call for someone or connected somebody or whatever, they’re now charged with a conspiracy. And the only way in which they can avoid getting a long sentence is to cooperate with the police. So you have a lot of what’s known as snitching, of people saying whatever they can to try to get their sentences reduced.

Congress, at one point, was so concerned with the number of women who were being affected by these laws that they enacted what was called a safety valve, which would allow some women who were prosecuted as couriers, who were first-time offenders and met another — a bunch of other criteria to get a reduction in sentence.

But the real issue is the one that Kemba pointed to, which is that even with the recent Supreme Court decision and the decision that was made by the Sentencing Commission this week, neither one of those things go to the heart of the problem, which is, number one, the need to equalize the cocaine sentencing laws to get rid of this ridiculous 100-to-1 sentencing disparity, but more importantly, to repeal mandatory minimums, because the essential thing that it has done is, one, to take away discretion from judges to really give sentences that are appropriate to the cases by taking this one-size-fits-all approach. It’s taken prosecutors away from really focusing on the kinds of cases that they should, which is serious, major drug trafficking, to the extent that they’re going to do that, instead of these sort of very low-level, street-level kind of cases that don’t do anything to change the amount of drug abuse in the community or the availability of drugs, but has resulted in an explosion of the prison population and tens and thousands of people of color who are permanently affected, not just because of their own incarceration and all of the stuff that’s attached to it, but when you live in a community with a high incarceration rate, that has impact on all of the people who live there, whether they go to prison or not.

AMY GOODMAN: Where does the House leadership, the Democratic leadership, stand on this?

DEBORAH SMALL: Well, you know, this is one of the unfortunate, quite frankly, paradoxes of being involved and doing political action, because a lot of us thought that when the House changed leadership, that that was going to be a great opportunity for people like John Conyers and Charlie Rangel, who have championed these issues for years, to be able to move their bills forward. But instead, what we’ve heard is that the leadership has basically put a kibosh on that, out of fear that the issue will be demagogued in the 2008 elections, so we’ve been unable to even get hearings in the House on any of the bills that have been introduced to equalize the sentences. The Senate has been more willing to actually look at this. There are about two or three good bills that are in the Senate, but, again, they have yet to hold hearings on this issue.

AMY GOODMAN: Senator Joseph Biden has the bill to completely eliminate the disparity between powder cocaine and crack?

DEBORAH SMALL: Yes, his bill is the only bill that would equalize the sentences, by not only eliminating the disparity, but setting the threshold amounts at the current level established for cocaine, which is really important, because you could equalize it the other way, which would just mean that you’d end up putting up more low-level people in prison for long periods of time. We think that the weights that are established for powder cocaine are the appropriate standard for sentencing equalization.

AMY GOODMAN: And do you think the Supreme Court decision will change anything? I mean, you’re talking — people like John Conyers not only might be open to this, but, as you said, has been extremely active on this, and he’s head of the House Judiciary Committee, yet has been stopped from moving forward.

DEBORAH SMALL: Well, our hope is that, you know, that the decision by the Supreme Court and the Sentencing Commission will at least provide political cover to the leadership so that they won’t be able to use that as a justification for not moving forward. I think that at a time that we’re really looking at how we should apply our scarce federal resources, that it doesn’t make sense for the federal government to be involved in prosecuting low-level drug cases. We think that the injustice that’s been perpetrated on African American communities for the past twenty years, who have been disproportionately affected by these laws, that that needs to be addressed.

AMY GOODMAN: Let’s talk about organizing for a minute. Kemba Smith, when you came out of jail, when President Clinton granted you clemency in 2000, you could have run as far away as you could from prison. You could have gone on, as you have, to Howard University Law School, raised your son, just gotten as far away as you could from this nightmare. But you haven’t. Talk about testifying before the Inter-American Commission on Human Rights, the kind of organizing you’re doing in this country.

KEMBA SMITH: Well, Amy, for me — and you’re right, I could have just walked away from it, but for me, it’s — I have a sense of survivor’s guilt, because even when I received executive clemency, there were women that were standing around me in the federal prison. They locked the prison down. As I walked out, there were women screaming at me walking out of the prison, wishing me good luck, telling me I was in their prayers. I spent six-and-a-half years in federal prison with these women, and I know that they should have —- some of them should have the same opportunities that I’ve had. And like Deborah said, it’s not just a woman issue; it’s, you know, a male issue, as well. And so, I received lots of letters while I was incarcerated, as well, from some of the men wishing me support. And I think with the publicity with my case and the NAACP Legal Defense Fund taking it on and several organizations coming on board, rallying behind the cause, it wasn’t just about me. It was because they hope that my case would set a precedent for everyone else and that there would be a major change within the policies. So -—

AMY GOODMAN: In your testimony before the Inter-American Human Rights Commission, you talked about the girlfriend problem. Explain what that is.

KEMBA SMITH: Right. Basically, there are women that get involved with guys who are drug dealers, and whether it be because of their loyalty, because they’ve been with them for so much time and they feel as if they should, you know, stand by their man, or because they don’t have as much information to give, you find girlfriends receiving more time than the actual boyfriends that are out there selling the drugs, because the boyfriends have more information to give, as far as cooperation. So that’s what’s considered the girlfriend problem.

But as far as advocacy, it’s just been really important for me to still stay on the Hill, be involved in certain hearings, to continue to work with Deborah Small, because she was working on my behalf to help me become released, and I believe in the whole concept, “To much is given, much is required.” So it’s just important for me to continue to speak for those that are still incarcerated.

AMY GOODMAN: I remember years ago meeting your father, Kemba.


AMY GOODMAN: Can you talk about the role of your parents? While you were in prison, they were raising your child, but they were going way beyond that. I mean, they made this a national campaign.

KEMBA SMITH: Yes. I believe through empowerment, through talking to other people and them embracing them, such as Deborah, and believing in the cause and my parents coming into federal prison to come visit me and seeing other women just like me, my father became outraged. And my mother supported him in that cause. And my father even lost his job, because they didn’t want him to publicly speak about my situation, so he walked away from the job that he had been on for fifteen-plus years. But I think that it’s important for family members to make those type of sacrifices, because oftentimes, especially in our black community, sometimes family members, friends don’t want to talk about it, because there is this embarrassment and shame, but I believe that, you know, we need to move past that and speak up for ourselves and stop letting individuals waste away in prison, because, you know, it is affecting us the most. And I expect some of our national leaders who are minorities, people of color, to step up on this particular issue, as well.

AMY GOODMAN: Well, I want to thank you both very much for joining us and end with a final question, which is, what do you think is the most effective way people can organize?

DEBORAH SMALL: Well, I think that right now the most effective thing that people can do is to contact their legislators and ask them to hold hearings and to move the bills that would equalize the crack sentencing disparity at the current weight level set for powder cocaine. It’s justice that’s way overdue. And specifically, I would urge them to support the bill introduced by Congressman Rangel from New York in the House and Senator Biden in the Senate.

AMY GOODMAN: And, Kemba, what are you going to do now in this aftermath of the Supreme Court decision, followed by the US Sentencing Commission?

KEMBA SMITH: Well, I’m going to continue to meet with the Justice Roundtable organization, which has affiliates, such as Deborah and her organization, the ACLU, the Sentencing Project, sit down at the table with them and talk about next steps and, as I continue to work with the public speaking circuit, continue to try to get students — high school students, college students — involved and motivated, and continue to get our black community involved in this particular issue, as well.

AMY GOODMAN: Well, I want to thank you both for being with us. And, Kemba, tell your son happy birthday.

KEMBA SMITH: I will. Thank you.

AMY GOODMAN: Kemba Smith, joining us from Richmond, Virginia, heads the Kemba Smith Foundation, and Deborah Small of Breaking the Chains. And we’ll link to both of your websites.

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