A question for Dr. King 50 years later

Photo credit: Jim Bowen per Creative Commons license.

Photo credit: Jim Bowen per Creative Commons license.

The 50th anniversary of Dr. Martin Luther King’s “I have a dream speech” and the March on Washington started me thinking once again about the many young black men I send to prison for dealing drugs and devastating the lives of others in so doing. The black crack whore, pulled into the grimy world of prostitution by her addiction and the young black men who fueled it, and who hung herself in the cell adjacent to the courtroom where I sentenced her, plagues me still. My inability to speak the truth about these young men troubles me even more.

If he were alive today, and with the benefit of the 50 years of history that have unfolded since 1963, Dr. King could provide federal sentencing judges like me with an unmatched perspective backed up by unimpeachable integrity. In short, I wonder what specific advice Dr. King would have for me as I sentence young black drug dealers in 2013 and beyond? That is not an idle question.

RGK

21 responses

  1. I don’t presume to know what Dr. King would have said to you, but I might suggest that you do what Judge Jack Weinstein did some years ago, and simply refuse to accept drug cases. He said that he would no longer be responsible for the destruction of so many lives. At the time he did that, it created quite a stir, Given that you are also on senior status (IIRC),, there is that option. And your doing so would have an impact on the discourse.

    And speaking of being unable to speak the truth, please remember that Dr. King was widely praised when he talked about equal rights for African-Americans, but was reviled when he starting talking about economic justice and the criminality of the Vietnam War. Then, as now, Americans cannot handle the truth.

  2. With great respect and more humility than rings here : “Follow Judge Bennett’s lengthy and well reasone post FSA opinion as to why the 1:1 ratio is the right and legally correct thing to do. The FSA 18:1 ration is not rationally based and thoughful judges should disagree with it on policy grounds or articulate why it is erroneous. Even the DOJ hasn’t appealed the many times judges follow the 1:1 ratio.” He would also repeat his great phrase “The arc of the moral universe is long but it bends towards justice.” MLK, Jr would implore all federal judges to place their hands on the arc on gently push towards justice. This is my best guess as to what he would say but I am just a small town country lawyer who questions everything but knows very little.

    mwb

  3. Mark,

    I believe that the harm caused by the distribution of crack cocaine to poor black citizens in devastated black communities deserves some measure of greater punishment as compared to the distribution of other drugs. Crack is so pernicious because it is cheap and extremely effective for short period of times. As such, it is the perfect drug to distribute to poor people. While the 100 to 1 ratio was unjustified, the 18 to 1 ratio provides a decent, although not perfect, way of imposing that extra measure of punishment. Indeed, if memory serves, years ago the Commission proposed a 20 percent penalty for crack precisely because of the factors mentioned above. Finally, the fact that this extra of measure of punishment is primarily imposed on young black men is too bad, but irrelevant to the goals of sentencing. That is, if young black men prey upon poor black people by distributing crack it does not bother me in the least that young black male offenders pay a higher price for their predations.

    All the best.

    RGK

  4. Richard,

    Very interesting point about Judge Weinstein. However, I don’t see things in the same way as Judge Weinstein. All the best.

    RGK

  5. Your animus toward crack cocaine seems to be the devastation of black communities. But then you observe, “that this extra [] measure of punishment is primarily imposed on young black men is too bad, but irrelevant . . .” But, given the premise, how can that latter observation be irrelevant? I find it highly dubious that disparate sentencing of the type discussed has not devastated black communities for more than the distribution of crack cocaine in those communities.

  6. It’s interesting that, in Nebraska, you still see a substantial number of African-American crack cocaine defendants. According to the census, the Black population of Nebraska is only about 1/3 of the nationwide percentage. I would have guessed that your saw more drug mule cases from the Interstates (which tend to be powder cocaine, and often feature Hispanic defendants), and perhaps meth lab cases, than inner city-type crack cases.

  7. Dear Rich,
    I was trying to answer the questioned posed about what advice MLK,Jr would have today. I suspect he would be the second person on the planet to agree with my view of crack sentencing. I have nothing but the greatest respect for you as a person and a judge. You are the role model of federal judging us mere mortals aspire too. Many of my best judge friends articulate the same rationle you have for sentencing crack defendants more harshly than powder defendants. And in my U.S. v. Williams post FSA decision I said I would start at the 1:1 ratio and then move up or down based on the evidence in the sentencing. I personally believe that there has never been any evidence presented in any crack case in the country that supports your view of the need for extra punishment. Here is what I mean. Powder coke probably causes more economic and personal devistation than crack but it is spread throughout the suburbs and the non-blighted and poor areas of cities. There are statistically more powder ueses than crack users. So we don’t sense the concentrated devastation like with crack. And, if I actually had evidence presented that your version is accurate I would sentence accordingly. But being the conservative jurist I am I sentence on evidence not speculaton about which harm is greater:) I leave that to the social scientists and judges who sentence on gut instincts. Getting back to the question you originally asked I doubt MLK,Jr would agree with the harsh crack sentencing that I suspect inflicts more harm on the black community that the harm we are allegedly punishing low level crack addict street pushers for. Let’s get real here — we, well at least I, seldom sentence ‘kingpins” for these ridiculously harsh crack sentences that were originally intended for kingpins by Congress.

  8. Dear Mark,

    First, sorry for being so dense about the “voice” you were using in the prior comment.

    Second, if we are in agreement that young black men who distribute crack to the poor deserve additional, but reasonable, punishment for their predations, then we don’t have a lot to argue over save for the quantum of extra punishment.

    Third, I don’t see “many low level addict street pushers” as defendants. I do see a lot of “small businesses,” but that’s very different.

    Finally, I wonder what MLK would say about the importance of personal responsibility. To be specific, I wonder whether he would say that it is now time to drop racial discrimination as an excuse for crack crime because, while the excuse continues to have some merit,emphasizing personal responsibility over victimhood will yield better results in the long term?

    All the best.

    RGK

  9. Good points, a lot of the low level street dealers I see get the product from your small business folks in Omaha. You are right about MLK, Jr and personal responsibility but 18 times more…..I don’t think so. 😄

  10. I think Dr. King would believe that many of our drug laws are misdirected, and would see them as not so subtly racially discriminatory in their enforcement and impact. And, he would be right.

  11. Dean,

    I am curious about your statement that Dr. King would see the drug laws “as not so subtly racially discriminatory in their enforcement . . . .” I understand the “impact” issue. Can you can provide me with “not so subtle” evidence of racially discriminatory enforcement at the federal law beyond anecdotal accounts. I am not playing games, I really wonder where I might find evidence backing up your statement.

    As for having difficulty with posting comments, I apologize. This platform, with its many attributes, is not so good for the consumer.

    All the best.

    RGK

  12. Congress did not set the 100:1 or the 18:1 except for mandatory minimums …the gutlless sentencing commission which does nothing but pander to congress did that. We have a constitutional duty to exercise our independant judgment when we have a policy disagreement with a guideline which I have done on several occassions. Most guidelines, indeed all drug guidelines, have nothing to do with prior emperical data on pre SRA data or the commission’s specilized expertise. Meth is really 20 times worse than heroin? Give me a break, sentencing commission. Indeed, all of the guidelines ignored the fact that prior to the SRA probaton was given in nearly half the sentecings…the commission on thier own threw that out which dramatically skewed the guidelines towards incredibly and unprecedented harsh sentening ….I mean, Rick, don’t ya think there is a problem when we incarcerate a higher percentage of our population than China, Saudi Arabia, Russia, and Syria? You are willing to wait for congress to act, and that’s fine…I respect that. I really do and that places you well within the mainstream of our colleagues…but I am not within the discretion the law gives me. All my best

    mark

  13. Mark,

    Sometime, let’s talk about what the specific tariff should be for people who distribute crack to the poor. If the 18 to 1 ratio in the statute on minimums (and the algorithmic Guidelines associated therewith) is too steep for those who sell crack to the poor, I truly would like to know what you would substitute. That is, what should the enhanced penalty be for those who sell crack to the poor and how would one apply that enhancement in a generally applicable manner using quantity as a proxy for culpability. But this discussion is probably becoming too technical and untethered from the MLK post, so I will call it a day for now.

    Again, Mark, thanks for your always penetrating thoughts. All the best.

    RGK

  14. Gentlemen:

    I am late to the discussion, but I have a starkly different view point.

    I sincerely doubt MLK, Jr. would relinquish to the Federal Government the responsibility of salving the wounds of African-American low-income communities. The issue is much deeper than ratios.

    My sincere belief is that Dr. King would be abhorred at a society that believes mass incarceration solves anything at all.

    I am now far removed (geographically) from the more desperate ills of American society but am still an avid observer (I live in rural Upper Michigan). It has become clear to me that our system of justice is “stuck” because our society doesn’t know what to do about drugs. The current debate on State v. Federal marijuana laws is just the most recent example of the societal stasis.

    The only thing I can say is: that which once was shall once again be. There was a time when personal responsibility was not the providence of the Federal Government. I don’t know when it will happen, but it will happen. And the issue will be forced by economic realities that will eventually overwhelm all other viewpoints.

    Indeed, like the good Doctor, I have a dream today … that someday instead of jailing our brothers we will have faith that those that who can be helped will find their own way. From the northern reaches of the United States, it surely seems as if the solution is now worse than the problem.

    Best,
    Bill

  15. Bill,

    Thanks for taking the time to write. As an aside, if you live in the area I think you live in, you live in one of the most beautiful areas in the country. You are lucky.

    All the best.

    RGK

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