Pastor's Page for Dec. 30, 2007: Mandated Sentencing

Last week in my sermon, I said that the only United States Supreme Court Justice who voted against fixing the disparity in sentencing between cocaine and crack cocaine sentencing was Clarence Thomas.

I was wrong. There were two: Judge Samuel Alito and Judge Thomas.

But what wasn’t wrong with what I said is that Clarence Thomas is no help to or for African Americans.

He has never been.

What the Court did was ruled 7-2 that local judges do not have to impose mandatory sentencing in crack cocaine offenses. The Court said that judges must consider the federal guideline ranges suggested for sentencing but only have to consider the guidelines advisory and not mandatory, which has been the case up until now, resulting in a 100-1 powder cocaine disparity. The Court said the guidelines may be too harsh in some crack cocaine cases and allows local judges to sentence below the suggested terms of sentencing.

Most powder cocaine users, it has been shown, are white and wealthy, while the vast numbers of crack cocaine violations are incurred by African Americans and people who are poor. Decades ago, the United States Congress set Guidelines for sentencing, making the penalties for dealing with and using crack cocaine much more serious than for having powder cocaine. They set the so-called “100-1” sentencing ratio, which meant that a person possessing 5 grams of crack cocaine would get the same sentence as a person having the 500 grams of powder cocaine.

That disparity drew cries of objection and protest, with the charge that the Guidelines were racially unfair. More than 80 percent of people convicted in federal crack cocaine cases are African American; only a little more than a quarter of people convicted in powder cocaine cases last year were black.

Two cases brought the issue to a head. One involved Derrick Kimbrough, a black veteran of the first Gulf War, who was sentenced to 15 years in prison for a crack cocaine violation. That sentence was less than the mandatory sentencing set by the federal Guidelines, which would have required him to receive 15 to 22 years for the same offense. The other case involved Brian Gall, a white man, who made an estimated $30,000 by selling 10,000 pills filled with the drug “ectasy.”

Mr. Gall made his money during his second year at the University of Iowa, but he stopped after that year, finished his undergraduate degree, graduated and moved to Arizona, where he opened a construction business. When investigators, some years later, were able to implicate Mr. Gall in the drug business, despite federal guidelines that said he should have been given a prison term of 30 to 37 months, he received probation.

Both those cases were appealed, leading to the review of the federal Guidelines and the easing of those guidelines, allowing local judges to disseminate fairer sentences in all drug cases.

The disparity was unfair, they ruled.

Judge Alito didn’t think so, and I don’t expect any more from him. But Judge Thomas didn’t think so, either, and that was a problem for me. I guess he forgot or doesn’t care about the fact that most of the people receiving prison terms for having, using or selling crack cocaine have been African American – people who look like him.

I am not arguing that people who commit crimes ought not suffer the consequences, but I am arguing that a black man on the highest court in the land ought to have sensitivity about injustices still incurred by black people and sanctioned by unjust laws, and ought to be willing to be an advocate for his own people! Even white people shook their heads at the sentencing disparity between powder cocaine and crack cocaine offenders, but it is as though Clarence Thomas fears he will lose his “stature” among white people if he takes a stand on injustice.

Mr. Thomas is an insult to the work and legacy of Thurgood Marshall and in fact to all of our ancestors who fought for justice for us in this country. I shudder to think of how far back we would be as a people if Clarence Thomas had sat on the court during the Marshall era. Does he not realize that if it had not been for black people fighting for justice and equality for black people in this country that he would not even be on the Court? Though some black people over time made it through the thick walls of injustice, discrimination and oppression, does he not know that had it not been for Affirmative Action, the numbers of African Americans given a chance to compete on an equal playing field would have been far less. How can he not know, and not care about, the fact that the “law” which he seems to so fiercely defend, has sometimes been everything but “fair and just” when it comes to black people?

To me, Clarence Thomas is a buffoon, a sorry excuse for a judge and a sorrier excuse for a black man. I think Thurgood Marshall and others who fought so hard to bring justice for African Americans must be groaning.

I know I am.

Pastor Smith