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Mandatory Minimum Sentencing and Black Males

The Effect of Mandatory Minimum Sentencing onBlack Males and Black Communities

Annotated Bibliography Edward BlakemoreThe University of Dayton School of LawSpring 1998 Introduction

This directed reading topic has aided me extensively in bettering my knowledge about the American criminal justice system. I initially believed blacks and whites committed roughly the same amount of overall crime. I also felt that crime rates were decreasing and that the media was the reason Americans are so fearful of crime despite its continued downward trend. In addition, I initially believed drug crimes were being enforced in minority communities more aggressively than in white areas. But I did believe that blacks and other minorities were committing more drug crimes than whites because of the need to obtain money for survival whereas that same poverty issue is not a large problem for whites. I felt that black male incarceration was increasing at an alarming rate and thus having extreme deleterious effects upon the black community. Needless to say, many of my views were supported by my extensive research but others were altered once some light was shown on the available facts.

My research did reflect that crime rates are down for all communities and for almost all the offenses. The only criminal offenses which have increased over the past 3 years are drug possession and larceny-theft. Every other crime, including violent offenses, have decreased continuously during the past few years. I began to wonder why if the crime rate was decreasing, the general public continued to act as though crime was running rampant through our streets. I put the blame on the media and the public for this misinterpretation. The media is probably the most at fault because they continue to deluge us with more news reports that document only the most egregious examples of crime without ever indicating that the acts they talk about happen quite infrequently. The media knows that the American public are mostly sheep which will react predictably to certain types of stories. They realize that the most sensational they can make a story, the more people will buy or watch their product.

The American public is also at fault, however. People are less willing than ever to read stories carefully realizing that many media outlets have their own hidden agendas and thus evaluating such reports with those downsides in mind. The public must expect more of the press than just stories which appeal to our salacious appetites. We deserve and should expect nothing less than reporting which is representative of this society as a whole. We should be enraged when the only stories which concern drugs routinely involve minorities despite a larger participation in that subculture by whites. Americans must help to balance the perspective of reporters by ensuring that different perspectives are heard.


The history of the police and minorities has not been a rosy one within this country. Whether it be the Rodney King incident, the MOVE bombing, or Geronimo Pratt's unjust incarceration, the police have continually treated minorities, especially black citizens, with disdain, disrespect, and hatred. I have always been troubled by the immense amount of discretion which is placed in the hands of people who have been well-known to treat minorities unfairly. Without the intervention of a police officer, no one ever is arrested. Accordingly, those officers should be people of honor, without a penchant for abusing black people. As history has demonstrated, these officers are far from being community pillars.

Police officers have always abused their discretion within this country. My research seemed to re-establish that point. In case after case, police have abused their authority. In Kolender and other cases, they used vagrancy statutes to unjustly arrest black people who looked suspicious largely because they made the mistake of walking in a white neighborhood while black. The plaintiff in Kolender was detained 15 times by police for taking night walks in an expensive white neighborhood. I would not be so upset about this abuse of discretion if it was applied uniformly regardless of race. Unfortunately, police bring their biases with them when they patrol communities. In none of the vagrancy cases, where the Court later found the statute impermissibly vague, was a white person charged with violating the ordinance.

Their abuse of discretion creates issues for minorities as more of the black male labor force ends up imprisoned, to some degree, because of the negative biases of police officers. Another example my research uncovered was the use, by police, of drug profiles. These profiles never explicitly stated that blacks should be arrested and whites should not be detained for drug crimes. Even our judicial system would not have stood by if such openly racist actions were taken against minorities. The police realized that and, as a result, applied the standard disproportionately against minorities so no one could argue they were acting wrongly. These profiles gave police virtual carte blanche in their authority to stop a motorist because he fit the description of a "typical" drug dealer. These practices resulted in numerous black people being stopped and harassed while whites doing the same acts were never even questioned.

These actions help to facilitate the feeling within the black community that they are second-class citizens. These actions also tend to create an antagonistic attitude between many minorities and the police force. This attitude works to the disadvantage of many minorities because those individuals who have a better repore with police tend to have better outcomes with their behavior. Blacks are at a disadvantage because their experiences with police have been largely negative. They are not comfortable trusting police officials. Because of a lack of trust between these two entities, neither can help the other survive and exist more effectively. Police need citizen participation to apprehend most felons. Blacks need competent law enforcement to uphold the law within their communities. Neither of those interests can be well-served when the two principal parties are at odds with each other.


Judges on the state and federal level were long known for exercising discretion in their sentencing which tended to favor whites. As a result, civil rights activists and protesters continually argued that judicial discretion must be curbed since jurists had shown themselves unable to handle the responsibility of sentencing without incorporating their own biases. These complaints were some of the main reasons people began to believe that sentencing should be placed in the allegedly more able hands of a legislators. Unfortunately, those advocates never considered that legislators also had similar biases and would likely draft a laws which reflected their opinions about others.

Since some judges were making federal sentencing a farce, the debate seemed to focus on the practices of federal judges. The legislators took it upon themselves to try and eliminate race from sentencing by making it uniform according to the offense. They argued that no matter who committed the crime, they should all be punished exactly the same. They even limited the sentencing discussion to the offender's criminal history and the offense he was convicted of. For some reason, these lawmakers never considered that people of certain economic strata are convicted of different crimes because of their access to means to commit certain crimes. They seemed to take a blind attitude toward who would be disproportionately affected by their new laws. They felt that since crack was the new scourge of America, it should have a higher and more severe penalty than cocaine, despite the fact that both are the same drug. Accordingly, they increased the penalties associated with crack and watched as minority prisoners began to get arrested at three to five times their prior rate.

Undoubtedly, these legislators felt they had create a uniform standard for all crimes so race wouldn't be a factor judges could consider. Because of their inherent biases against minorities, most legislators never even considered that their laws would greatly effect black communities. These lawmakers may have just been guilty of benign neglect toward the types of offenses minorities are convicted of and genuinely thought they were making a law which would decrease the incarceration rates of minorities. I hope these lawmakers did not conspire to create laws which would increase minority incarceration while allowing white rates to remain stable or decrease.

However, an excellent argument could be made that the white power elite saw a great increase of unemployed white males and began to become concerned that these men might strike out against their more wealthy white counterparts. These powerful men knew some solution had to be devised so the power elite didn't need to feel the crunch of white poverty and rage. They knew many of the unemployed white males were castoffs from steel mills and other areas where unskilled labor was once appreciated. They had to devise some way for this unskilled labor to be enough of an asset for these men to find a job. Suddenly, prison construction began to increase but those in power knew prisons couldn't continue to grow without more people spending longer amounts of time incarcerated. So these people told the public they were going to change the laws so race could not be considered by a judge when sentencing. But they failed to tell people that they were going to write the laws so that crimes committed by whites would either not be encompassed under mandatory minimum sentencing or would have lesser penalties. That practice created a huge increase in the amount of minority individuals being sent to jail and because the penalties were harsher, these people would be forced to stay longer than their counterparts from previous years. This influx of prisoners meant that the white unskilled labor force now had a place to work so they wouldn't conflict with the white power elite.

My research surprisingly revealed that almost no criminal justice entities agree with the usage of mandatory minimum sentences. I expected judges and defense attorneys not to favor such measures because it lessened their power to effectively do their jobs. However, I was quite surprised to learn that most prosecutors are also not in favor of these measures. The only criminal justice component which favors these sentences are the legislators who created the law. I was also surprised to discover how differently judges and legislators view the law. Judges tend to view every defendant as though he is unique and deserves a sentence which most effectively corresponds with the objectives of the system, the victim, and the offender. Legislators, however, view the law as incapable of being altered for different circumstances. They want to treat certain criminal acts with more disdain than others. They do not see how two people who are caught with the same quantity of drugs may deserve different sentences because of their prior actions or criminal status. These two separate philosophies tend to cause friction between judges and legislators at the expense of defendants and society at large.

Lastly, district court judges who are brave enough to sentence under the minimums have been consistently overturned by appellate courts. I did not find one decision where the appellate court upheld a criminal sentence below the mandatory minimum. The system has allowed the discretionary process to shift completely into the hands of the police and prosecutors. If the prosecutor refuses to file a downward departure motion for the defendant due to his help as an informant or because he feels as though that individual deserves a break, the appellate court has illustrated it is not willing to affirm a sentence below the mandated sentence. While the few brave district court judges should be commended, there is no indication their efforts will accomplish anything but allowing that defendant a few extra months with his loved ones before the appellate court re-institutes his mandated sentence.


One view of mine that definitely did not change after conducting this research was that America is building a prison industrial complex which is founded upon a seemingly unlimited supply of black and latino offenders who continually fall into the same criminal justice traps. Prisons are like capitalism in that there must be a continual supply of inmates just like there must be an underclass for each system to operate as planned. Legislators know that if more prisons are built in decaying communities they can serve as an economic boon to potentially help those cities regain their footing. They needed to ensure they had people who could fill these jails, prisons, etc. Mysteriously enough, minorities, especially black males, were chosen as the people who were going to disproportionately fill these jails. Because of the new "get tough on crime" and "two strikes" laws being enacted, minority males are going to prison at alarming rates compared to their white counterparts. The current estimates indicate that 50% of all black men will spend some time in a prison or juvenile detention center. Latinos are not far behind in their populations inside prison facilities.

One of the more disturbing trends is the increased rate at which black women are being sentenced to prison. No one seems to be troubled by the effect this trend will have on the future of black families. Many black women are getting sentenced to prison because of the more stringent drug laws not because they are using more illicit substances but due to their involvement with black men who are selling the contraband. Americans must ask themselves how many more prisons we can afford to build before enough is enough.


Mandatory minimum sentences are having drastic effects upon the black community. The first and arguably most important effect is that it exacerbates the problem of single parent households within the black community. When these men are sentenced to prison, they, many times, leave behind a wife/girlfriend and/or children. If they have already have had children, that child must spend multiple years of his/her early life without a primary father figure. In addition, that male's absence is even more prominently felt when the woman has to handle all of the financial responsibilities on her own. This poses even more problems since women are underpaid relative to men in the workforce, child care costs must be considered, and many of these women do not have the necessary skills to obtain a job which would pay a living wage which could support her and the children. Black male incarceration has done much to ensure that black female-headed households are now synonymous with poverty.

Black male imprisonment also has much to do with rising black male unemployment rates. As these men re-enter the workforce they now likely have less skills than when the first entered prison. There are few, if any, programs which train these men to effectively re-enter society. As jobs continue to move out further and further into the suburbs, these males, who are disproportionately from the inner city, are left with few living wage employment options. I've always maintained recidivism rates are so high not because these men want to return to a life of crime but since few employment options are available, they tend to utilize their limited skills to get the money they need to survive. If more efforts do not make additional training available to these males which is realistically designed to help them obtain a living wage job, recidivism rates and black male unemployment will continue to increase.

Black male incarceration rates also have severely diluted the voting strength of black communities. As these men are released from prison not only are their already limited kills diminished but they also no longer have the right to vote in any elections. With over 1 million black males currently under the control of the criminal justice system, the applicable voting rolls of the black community are being decimated by this prison epidemic. Some might even argue that the plan of the power elite in constructing more prisons was to ensure blacks could not effectively participate in the political process. Unless we do more to arrest these increasing incarceration rates, black political power may be nothing more than a memory in the coming decades.

The final negative effect of increased black male incarceration is that being forced to spend time in prison has lost its negative stigma. One of the most beneficial reasons to impose incarceration as a punishment was to reinforce the idea that only wayward men have to go to prison before potentially turning their lives around. Unfortunately, being a former inmate now seems to be worn more like a badge of honor than a disgraceful occurrence. Black men are now proud to boast that they've been in prison and survived the experience. We cannot allow black children to grow up believing that prison is a rite of passage if we ever hope to arrest these ever-increasing incarceration rates.

The following articles are included in this bibliography:

Bureau of Justice Statistics Bulletin

The Chasm Between the Judiciary and Congress over Mandatory Minimum Sentences

Criminal Victimization, 1996: Changes 1995-1996 with Trends

The Devastating Impact of the Justice System on the Status of African-American Males: An Overview Perspective

Discretion Redux- Mandatory Minimums, Federal Judges, and the "Safety Valve" Provision of the 1994 Crime Act

The Disproportionate Imprisonment of Low-Level Drug Offenders

Facts about Prisons and Prisoners

Federov v. U.S., 600 A. 2d 370 (1991).

For Black Males and American Society- The Unbalanced Scales of Justice: A Costly Disconnect

Harmelin v. Michigan, 501 U.S. 957 (1991).

Kolender v. Lawson, 461 U.S. 352, (May 2, 1983).

Papachristou v. City of Jacksonville

Race and the Decision to Detain a Suspect

Racial Disparities in Sentencing: Can Sentencing Reforms Reduce Discrimination in Punishment?

Racism in the Criminal Justice System

Report of the Special Committee on Race and Ethnicity to the D.C. Circuit Task Force on Gender, Race, and Ethnic Bias

Solem v. Helm, 463 U.S. 277 (1983).

Uniform Crime Reporting Program Press Release

U.S. v. Hawley, 984 F.2d 252, (8th Cir. 1993).

U.S. v. Kidder, 869 F.2d 1328, (9th Cir. 1989).

U.S. v. Sharp, 883 F. 2d 829, (9th Cir. 1989).

The War on Drugs: Few Victories, Great Costs

Young Black Males and the Criminal Justice System: A Growing Problem


Sheri Lynn Johnson, Race and the Decision toDetain a Suspect, 93 Yale L. J. 214 (December, 1983).

This law review article utilized scientifically established data to prove that police officers tend to believe minorities commit more crimes than whites. The author used self-report studies to establish that neither race commits more crime than the other. Those biases concerning other races are not innocuous and end up affected the officer's discretion when deciding whether or not to arrest the suspect. She contends that the personal views of officers which reflect negatively upon minorities may tend to create a self-fulfilling prophecy in regards to minority arrest rates.

Samuel L. Myers, Jr.Racial Disparities in Sentencing: Can Sentencing Reforms Reduce Discrimination in Punishment?, 64 U. Colo. L. Rev. 781 (1993).

This author also uses self-report studies to indicate that minorities commit no more crime than whites. He also attributed the public's apathy on the issue being due to the current conservative political climate which refuses to admit racism plays into the sentencing disparity. His research indicates that at every stage of the criminal justice process, blacks with similar offenses and criminal histories, etc. are given harsher sentences than their white counterparts. Black men with prior drug records are 20% more likely to receive release than a comparable white offender. When he controlled for all factors but race, he found that blacks should be released 45% more often on parole. His study thereby underscores the extensive racial disparity in sentencing.

Kolender v. Lawson, 461 U.S. 352, May 2, 1983.

Black male plaintiff was arrested or detained 15 times by police in white communities under a statute requiring a detained person to produce "credible and reliable" identification information. No white person was ever arrested under the statute. This statute allowed the police officer to be the final arbiter of whether the produced information was sufficient. If the officer did not find the data sufficient, he then was automatically given probable cause to arrest the detainee. The Court determined the statute was unconstitutional by being vague on its face. This case is quite indicative of the police force's treatment of minorities in America.

Fred A. Bernstein,Discretion Redux- Mandatory Minimums, Federal Judges, and the "Safety Valve" Provision of the 1994 Crime Act, 20 U. Dayton L. Rev. 765 (Winter, 1995).

Mr. Bernstein described how sentencing guidelines are based on two factors: severity of the offense and the offender's criminal history. Because sentences are based on drug quantity, a street level dealer and the leader of a drug cartel could receive similar sentences. The mandatory minimums give judges far little room to maneuver and most dare not challenge their application. The "safety valve" provision was included in the statute to allow judges to examine other factors like level of family responsibility and the defendant's character when the offender is a low-level first-time drug offender. This exception affords judges the opportunity to use the discretion mandatory minimum sentences the legislature took away from them. Unfortunately, the author had no data as to whether the provision was being used uniformly across racial lines.

Federal Sentencing Reporter, TheChasm Between the Judiciary and Congress over Mandatory Minimum Sentences, 6 Fed. Sent. R. 59, (September/October, 1993).

This writer concluded mandatory minimum penalties are inconsistent with a fair and effective sentencing system and the sentencing guidelines. Several prosecutors even agree that mandatory minimums are far too over-inclusive and don't achieve sentencing goals. The onset of mandatory minimums has shifted discretion from the judges to prosecutors and caused higher trial rates and often resulted in punishing minor offenders more than major offenders they are already targeting. The sole criminal justice entity defending their usage is the Justice Department because it believes these sentences are the main reason crimes rates have decreased recently. This article illustrated the differing perspectives of criminal justice by the parties involved. Legislators view penal statutes in terms of general deterrence and incapacitation whereas judges see each case, crime, and defendant as different and in need of a specific sentence for his offense.

Federal Sentencing Reporter, TheDisproportionate Imprisonment of Low-Level Drug Offenders, 7 Fed. Sent. R. 3, (July/August 1994).

This reporter edition indicated that drug offenders account for over half the federal prison cases and over 60% of the federal prison population. Because of the onset of guidelines and mandatory minimums, they (drug offenders) serve three years longer than the same offenders ten years ago. The report also concluded that the lengthier sentences aren't reducing recidivism. The penal policy toward them is inconsistent since most are street-level dealers are the persons who would benefit most from diversion programs, but instead are receiving the longest sentences. The laws are written so the most important factor in deterring sentencing is drug quantity rather than the defendant's role in the illegal enterprise.

The Sentencing Project, TheWar on Drugs: Few Victories, Great Costs, (1997).

This report indicated that in 1983, 8.8% of the people in state and federal prisoners were there for drug possession. By 1993, the same population had increased to 25.1%. The number of black drug offenders from 1986-1991 has increased to four times that of their white counterparts. During the years 1986-1991, drug offenders for all groups increased: white males 106%, white females 241%, black males 429%, and black females 828%.

U.S. Department of Justice, Bureau of Justice Statistics,Criminal Victimization, 1996: Changes 1995-1996 with Trends 1993-1996 (1996).

In 1996, violent crime rates were 16% lower and property crimes were 17% lower than in 1993. Black people are more likely than white people to report crime. Serious violent crime levels declined between 1995-1996 while the number of drug arrests for both juveniles and adults increased. The federal criminal caseload declined in 1994 but the incarceration rate has continued to increase. State criminal justice expenditures have increased to such a degree that they now exceed the amount spent by municipalities, counties, or the federal system. Federal drug prosecutions leveled off for the first time in a decade in 1995. While the federal criminal caseload has decreased, more of the people convicted are being sentenced to prison than ever before. In 1995, more than 5 million people were under some sort of correctional supervision.

U.S. Department of Justice,Uniform Crime Reporting Program Press Release, Federal Bureau of Investigation national Press Office, October 13, 1996.

This release indicated that total crime was down 1% and violent crime was down 3% both from 1994. In 1994, the U.S. saw its lowest violent crime rate since 1989. The only crime levels to increase were for larceny-theft and drug abuse. Despite crime rates continually decreasing, the number of police officers has increased to the highest number of full-time officers in this nation's history.

National Association of Criminal Defense Lawyers,Racism in the Criminal Justice System, (1996).

The author argues that police routinely stop black and latino motorists on the pretext of violating minor infractions which are routinely overlooked when whites are involved. In addition, once stopped, blacks are disproportionately more likely to be arrested by police than similarly detained whites. Minorities make up 90% of those from whom cash forfeitures were made and only 24% of those were accompanied by arrests on a criminal offense. The crack to powder cocaine punishment disparity is 100:1. Eighty-eight percent of the people convicted on federal crack offenses are black while only 4% were white. While blacks make up only 12% of the country's population, they represent 45% of all arrests and over 50% of the total prison population. In addition, while only an estimated 13% of all blacks are monthly drug users, they represent 35% of all drug possession arrests, 55% of all drug convictions, and 74% of all people with prison sentences for those offenses. Georgia's "two strikes" law can impose life imprisonment for the second drug offense. Under the "two strikes" laws, life imprisonment is sought for blacks 16% of the time, while only 1% of the time for whites.

Marc Mauer,Young Black Males and the Criminal Justice System: A Growing Problem, Sentencing Project (1990).

Mr. Mauer is troubled that almost one in four black men are somehow under the control of the criminal justice system (parole, prison, jail, probation, etc.). The criminal justice costs which can be attributed to black males is $2.5 billion. From 1978-1988 the crime rate increased only 2%, the number of prisons doubled. During that same time period, black male college enrollment fell 7%. In our current "get tough on crime" atmosphere, the prison population has tripled since 1973 but victimization rates are down only 5%. In Florida, black inmates account for 73% of all drug offender inmates. This author proposed more diversion, dispute resolution, and counseling programs as the best solutions for the current influx of black inmates into prisons. Since many of these men are low-level nonviolent drug dealers, they are the persons most likely to benefit from these programs. The drastic increase in overall prison population has done very little to reduce crime. Thus jails should be used as a last resort for the most violent felons. In addition, he argues judges should be given more autonomy in their ability to sentence so they may craft specific punishments for particular defendants and create a solution which is best for all parties.

Allen J. Beck,Bureau of Justice Statistics Bulletin, U.S. Department of Justice (August 1995).

Between the years 1980-1993, the federal prison population grew faster than the combined populations of both state prisons and local jails. In 1993, blacks were incarcerated at 7 times the rate of whites. The percentage of state drug offenders has increased 3 times between 1980-1993. Black males account for half of the prison population despite being only 6% of the country's population. In 1993, two-thirds of the prison population was comprised of minority individuals. The increase in drug offenders accounts for 3/4 of the total federal prison inmate growth. The likelihood of being incarcerated for a drug offense has increased 500% since 1980.

The Sentencing Project,Facts about Prisons and Prisoners, The Lindesmith Center, (1995).

In 1995, state and federal governments planned $5.1 billion in new prison construction at an average of $58,000 per each medium security cell. The United States is first in the world for its incarceration rate just recently surpassing South Africa. While 1:10 inmates were imprisoned for drug offenses in 1983, the rate increased to 1:4 by 1989. Drug offenders represent 21% of 1991 state prison inmates and 61% of 1993 federal prison inmates.

Papachristou v. City of Jacksonville, 405 U.S. 156, (1972).

This case reflects police officer attitudes toward persons they believe are not positive contributors to society. They were arrested under a Florida vagrancy ordinance because they did not have identification when it was requested by the officers. The officers used their discretion both to detain and arrest two black males. The statute allowed police to arrest those who were "nightwalking" if they seemed suspicious and could not provide adequate identification. The court struck down this vagrancy law for vagueness and failing to give the ordinary person notice that their conduct was forbidden. This case, like Kolender, demonstrates the general law enforcement attitude of automatically suspecting the behavior of minorities.

U.S. v.Hawley, 984 F.2d 252, (8th Cir. 1993).

This case reflects the appellate court's unwillingness to affirm a drug sentence below the mandatory minimum unless the prosecutor files a downward departure motion. This defendant was convicted of possessing a firearm while drug trafficking but the district court judge took into account the defendant's lack of a criminal record, the small amount of marijuana involved and his very short tenure as drug trafficker and sentenced them to 20 months in prison and 3 years supervised release. The mandatory minimum sentence was 60 months in prison. The appellate court felt that since the only way a sentence can be given under the minimum is after the prosecution has filed a downward departure motion, and because the prosecution never filed this motion, the mandatory minimum sentence must be instituted. The appellate court warned that the statute's legislative intent mandated the court follow the statute and not engage in judicial activism. This case seems to indicate the appellate court is less than sympathetic to the plight of defendants subject to mandatory minimum sentencing.

U.S. v.Sharp, 883 F. 2d 829, (9th Cir. 1989).

In Sharp, the appellate court like in some of the aforementioned cases, indicated that since the mandatory minimums were created by the legislature, judges can't impose shorter sentences unless a downward departure motion was filed by the prosecution. Thus the court is unable to consider mitigating factors, outside those articulated by the statute, to impose a lower sentence. This case seems to indicate that the appellate courts are quite unwilling to be the vehicle to force legislators into changing the law so it doesn't unfairly punish people with limited criminal involvement.

U.S. v.Kidder, 869 F.2d 1328, (9th Cir. 1989).

The appellate court rejected defendant's argument that his 5 year prison sentence for cocaine possession was so disproportionate as to constitute cruel and unusual punishment. But the court did leave some room for a potential innovative argument by defense counsel for drug defendants who also use the illegal substances. The defendant also argued he was being punished for his status as a drug addict rather than for any illegal conduct. It has long been illegal in American criminal jurisprudence to punish someone for their status rather than an illegal act. The court initially argued that the 8th Amendment doesn't allow them to consider the voluntariness of the conduct and that they must punish offenses regardless of their cause. But the court never had to decide whether they could legitimately imprison him in light of his acts as a drug addict since that is a status. They never had to decide the issue since the defense was appealing a guilty plea and such a plea is an admission of every element necessary to satisfy the offense. Thus, the defendant cannot now argue a lack of mens rea since he stipulated to it in his guilty plea. This case seems to potentially open the door for defendants who can establish they are drug addicts or dependents and their actions are involuntary so they cannot have the mens rea necessary to satisfy the crime's elements.

Harmelin v. Michigan, 501 U.S. 957, 994-997, (1991).

The Court found that a sentence of life imprisonment for drug possession while cruel was not unusual and thus does not violate the 8th Amendment's prohibition against cruel and unusual punishment. Sentences must be unusual in the constitutional sense and the Court suggested such arguments should only be made in capital contexts because of the difference between death sentences and other penalties. The Court seemed to rely on the fact that even an individual sentenced to life imprisonment, could potentially be released from prison on parole after 20 years and then be fully able to participate in society whereas a defendant sentenced to death has no such options.

James Coleman, Jr. and Todd D. Peterson,Report of the Special Committee on Race and Ethnicity to the D.C. Circuit Task Force on Gender, Race, and Ethnic Bias, 64 Geo. Wash. L. Rev. 189, 323-330 (January, 1996).

This report indicated whites are receiving downward departure motion from prosecutors more frequently than blacks and latinos with similar criminal histories and offenses. The disparity is especially apparent in cases where the sentences were the longest mandatory minimum sentences were involved. They attributed the main reason for the gross sentence disparity being the overwhelming majority of blacks sentenced under crack cocaine mandatory minimums. As is common knowledge, the average sentence imposed for crack trafficking is twice as long as the sentence for powdered cocaine. The committee found no racially discriminatory intent on the part of Congress in enacting separate penalties for cocaine offenses but urged reform to eliminate the minority community's perception of unfairness and inconsistency.

Nathaniel R. Jones,For Black males and American Society- The Unbalanced Scales of Justice: A Costly Disconnect, 23 Cap. U. L. Rev. 1, 13-20, (1994).

This author concluded mandatory minimum sentences are creating drastic deleterious effects upon the black community. In 1992, 50% of the total drug felons who were sentenced to federal prison terms were nonviolent offenders who had no prior record of serious crimes. In Ohio's correctional institutions, blacks represent 53.7% of the total inmates. Despite the alleged goal of mandatory minimum sentencing being the eradication of race as a factor to be considered in sentencing, more and more black men continue to be locked in prisons for criminal offenses, especially those which are drug-related. In 1984, black sentences were 24% higher than those of whites. But by 1990, after the extensive effect of mandatory minimum sentencing had taken hold, the average sentence for blacks was 93% higher than that of whites. The author was also concerned that since so many people were being imprisoned, time spent in prisons no longer carried the stigma and shame they once did which were very quite useful in deterring youth from engaging in criminal behavior.

Floyd D. Weatherspoon, TheDevastating Impact of the Justice System on the Status of African-American Males: An Overview Perspective, 23 Cap. U. L. Rev. 23, 29-45, (1994).

Mr. Weatherspoon, indicates that since the "War on Drugs" has become synonymous with policing efforts within black communities and the actions of black males, the public has the erroneous perception that blacks use the majority of the drugs in this country. However, while minorities represent 38% of the people arrested for a drug violation, they constitute only 17% of all the people using illicit drugs. It also seems as though being black is enough probable cause for a police officer to detain any black male. Police have long been known to stop black males for small infractions they wouldn't even look crossly at a white person for doing. This negative police attitude towards blacks is undoubtedly over 1.5 million black people being under the control of the criminal justice system (probation, jail, prison, parole). The author estimate that if the black male incarceration rate continues to rise at their current speed, half of all black men will have criminal records by the year 2000. In 1986-1988, before sentencing guidelines were fully implemented, whites, blacks, and latinos received generally similar sentences for the same crimes. But once the guidelines kicked in during the early 1990's great differences in sentencing began to manifest themselves. The Minnesota Sentencing Commission reported that during the 1980's the number of blacks arrested for drug violations increased 500% while the rate for whites increased only by 30%.

Solem v. Helm, 463 U.S. 277,277-291 (1983).

This court held that the 8th Amendment was written to include not only excessive bail infractions but also was provided as safeguard to proportionality between the offense and the punishment rendered. The Court founded this belief upon common law tenets. However, the Court indicated that reviewing appellate courts should give "substantial deference" to the legislatures which create the law and the penalties for crime. The review standard for appellate courts when evaluating sentences for proportionality is whether the sentence is constitutional. This decision seems to open the door a very small crack for plaintiffs who can establish their sentences are excessive enough to be deemed unconstitutional.

Federov v. U.S., 600 A. 2d 370, 377-340 (1991).

This Court held that a prosecutor's decision not to grant pretrial diversion can be appealed by asserting a violation of equal protection. The defendant's burden would be quite heavy and he must establish a prima facia case demonstrating that other similarly situated persons were given diversion and the selective prosecution was improperly motivated by being based on race or a desire to deprive him of his constitutional rights. This case seems to open a new avenue for drug defendants if they can establish that others, with similar circumstances have been treated differently. The difficult part of this position is that most blacks would have to make the argument by comparing themselves to whites who are caught with cocaine which is considered different from crack under penal law. Most judges have been reluctant to acknowledge the crack-powder cocaine disparity is unjust and thus probably won't lend much credence to the defendant's argument.