As I indicated in prior blogs, Tilem & Campbell is currently appealing two cases challenging the constitutionality of the federal mandatory minimum sentences for crack cocaine offenses and the 100:1 powder cocaine-to-crack cocaine ratio that results in grossly disproportionate sentences between the mostly minority crack offenders and their mostly white powder cocaine cohorts.

One Appellant Brief is already submitted in the United States Court of Appeals for the Second Circuit and as the drafter of that Brief, I chose to analyze many different sources of information to show that the crack cocaine mandatory minimum sentencing laws (21 USC 841) were based on flawed data and have not achieved their intended goals. In doing so, I analyzed the history of other Congressional Acts imposing draconian mandatory minimums for drug offenses including the Boggs act of 1951 and the Narcotics Control Act of 1956. I also discussed President Kennedy’s disfavor for mandatory minimums and the conclusions of a Commission he assembled critical of such sentences and their recommendation that sentences fit both the offender and the offense and that rehabilitation should be the most important goal – not retribution.
I chose this strategy not to fill up space discussing irrelevant long-abolished statutes or the policies’ of Presidents who served 35 to 45 plus years ago but instead to elucidate the fact that the draconian mandatory minimum sentences of imprisonment for drug offenses has consistently failed over decades and tens of thousands of cases to solve the problem and stem the flow of drugs and their use. It was and remains the objective of my Brief to attack these mandatory minimums not only on strict scrutiny analysis but also on the rationale basis front.

In other words, I want to show the Second Circuit, through solid empirical data, that this mandatory minimum, throw away the key approach has consistently failed; that study after study has concluded that the rational for the mandatory minimums for crack and the 100:1 ratio was flawed and that mandatory minimums have failed for over 57 years to achieve their desired goal; and that the Kennedy Administration, the Johnson Administration and the Nixon Administration all opposed mandatory minimum sentences for drug offenders based upon extensive Committee research.

Our Brief followed with commentary regarding the Sentencing Commission’s strong disagreement with the ratio and the mandatory minimums as well as the United States Supreme Court’s acknowledgment in Kimbrough that the fears were unrealized and that crack and powder cocaine are one in the same drug. Our brief also analyzed and the pending bi-partisan support for Legislation abolishing the ratio. This I argued, supports a strong argument the current laws fail under strict scrutiny analysis because they are not narrowly tailored to achieve a compelling government interest insofar as all the experts recommend rehabilitation over incarceration and therefore, for a mandatory minimum to be deemed narrowly tailored, it cannot lump all offenders, (both addicts and major suppliers), in the same category.

The mandatory minimums for crack cocaine also fail the rational basis test because we are imprisoning minorities for decades for crack offenses while their white counterpart is receiving less than two years for powder offenses involving 100 times the amount of powder cocaine which, as authoritative experts have determined, is the same drug.

Therefore, the historical perspective certainly shoots holes in the rationale basis test. Indeed, history has shown us that mandatory minimums have always failed. If something always fails, there can be no possible rational basis to continue to try it. As they say, an insane person is one who does the same thing over and over knowing they will not get a different outcome. They might as well simply state “See Congress” after the word “Insane” in Webster’s Dictionary.

In continuing with my overview of mandatory minimums and their history, in 1966, President Lyndon B. Johnson (who had taken over as President after the tragic November 22, 1963 assassination of President Kennedy) established the President’s Commission on Law Enforcement and Administration of Justice, known as the Katzenbach Commission. This Commission produced a ten-volume study on federal criminal justice. Among its recommendations was that the laws and the judges must be given the flexibility to deal with each offense and offender with a flexibility which allows them to take into account relevant circumstances.

Please feel free to contact me with any information or examples of the failings of the crack cocaine mandatory minimum sentencing structure. If you yourself were victimized by a mandatory minimum drug sentence that was clearly excessive for your offense, please contact me to discuss your case. To discuss a state or federal sentencing issue, an appeal or any other criminal matter, feel free to contact Tilem & Campbell at 1-888-ANY-CRIME or visit us on the web at www.888AnyCrime.com.

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