A judge asks the tough questions
US DISTRICT JUDGE Nancy Gertner joked that she worried about a headline that could have read, "Limousine liberal lets crack dealer off." This was for setting free 37-year-old Myles Haynes last week after 13 months in jail for selling a small amount of crack cocaine in a Boston housing project.
Under federal sentencing guidelines, Gertner could have continued his sentence for another two or so years. She decided that, with Haynes having children, not being a chronic offender, and having a reasonable enough track record of trying to serve in the military and find gainful employment, it was more important to give him a chance to be a contributing member of his family and society.
Gertner told Haynes from the bench, "When I see your son, I think that public safety requires that you be with your son so that he doesn't follow in your footsteps."
Public sanity requires following in Gertner's footsteps.
At the heart of all this is the two- decade-old federal sentencing laws that punish possession of crack much more harshly than possession of powdered cocaine. It takes 100 times more powder to trigger the same mandatory sentence as crack. The laws became a slow-motion disaster for men like Haynes who are much easier to haul off street corners than wealthy white sellers and users in the suburbs. Even though the majority of crack users are white, 82 percent of people arrested for crack are black. Recently, the US Sentencing Commission modestly relaxed penalties for crack offenses, but the 100-to-1 ratio remains in place.
"This makes me crazy," Gertner said in a phone interview this week. "Has anyone studied the streets to see if we just replaced one set of drug dealers for another? No one doubts there is a public safety issue. But it is also public safety what these sentences have done to a generation of African-American young men. That doesn't get into the debate at all. All we have done in so many instances is take kids off the street, put them away for many years, and give them no skills at all to function in a modern economy.
"We take them off the street at 25, return them to their neighborhoods at 35 with no skills, then they can't get jobs because of felony records. How are they to contribute to society?"
Gertner is well known for asking these questions. This summer, she wrote in the journal Social Research that contrary to the law-and-order rhetoric of politicians, a Sentencing Commission poll over a decade ago found that the public supported neither such harsh treatment of nonviolent drug offenders, nor vastly different sentencing for crack than powder. Even though she was an appointee of President Clinton, she has said the resistance to changing the laws is bipartisan. "Candidly, the Democrats were never particularly courageous on this issue, either," she told The
Today, a growing number of politicians, including Republican Senators Jeff Sessions of Alabama and Orrin Hatch of Utah, acknowledge the discriminatory effect of the laws. With the Democrats back in leadership, there have been murmurs of getting rid of 100-to-1. But it remains unclear, from Congress to the top presidential candidates, if Democrats will fight for justice or chicken out in fear of being seen as soft on crime. One irony of this is that the Democrats may have chickened themselves out of close elections, even perhaps the 2000 race for the White House, with so many African-Americans unable to vote because of felony records.
"People will say, 'They shouldn't have been dealing drugs in the first place,' " Gertner said. "But think of the difference it makes if they get four years instead of one or two. Think of what this has done to families, their children who essentially do not get to know their fathers, and political power. . . . We tell them when they get out that they cannot commit any more crimes, stay with your family, get a job. But so many of these kids don't know how to apply for a job. . . . When one in three African-American males have an interaction with the criminal justice system, that should give us pause. This is completely destabilizing these communities."
Until Congress stabilizes this destabilizing law, the Gertners of the bench have no choice but to risk being called limousine liberals. They know that under the hood of 100-to-1, too many black men lie in a puddle, the leakage of society.
Derrick Z. Jackson's e-mail address is jackson@globe.com.
