Ashard of shrapnel from the drug war took a piece out of Robin Nurse shortly after midnight on April 14, 1989. Nurse, a 27-year-old clerical worker from Brooklyn, N.Y., had just arrived at Washington’s Union Station. She fit the police profile of a drug courier—young, black, traveling at night with a tote bag—so she was busted by the narcotics interdiction unit of the Metropolitan Police Department. The cops found four “keys” (four kilos, or 4,000 grams) of cocaine inside the bag.
During the search, Nurse says, she asserted her rights. She claims that an officer called her a “smartass,” told her she was facing at least five years in prison, and promised that he “would make sure she did 10.”
The cop knew the ins and outs of the mandatory minimum sentencing law—a controversial provision that, critics say, takes discretionary power out of the hands of judges, ensures that jails will be choked with low-level drug offenders, and inadvertently pushes violent criminals back out onto the street.
Nurse was charged with “possession with intent to distribute” not only the four keys of coke but 90 grams of crack as well. Nurse admitted to the coke but not to the crack, which she believes was planted on her to ensure a harsher penalty. Whatever the truth is, Nurse, who had no priors, was sentenced to five years for the coke—and a concurrent sentence of 10 years for the crack, with no parole.
“Never in my life as a voter would I vote for mandatory minimum sentences,” says D.C. Superior Court Judge Bruce Beaudin, who, along with other judges and civil libertarians, considers existing mandatory minimums a judicial abomination. But voting for them is exactly what D.C. citizens did in September 1982, when voters approved a mandatory minimum law by a margin of 73 to 27 percent.
And despite overwhelming evidence that mandatory minimum sentences leave us less safe, the D.C. Council appears poised to expand the measures. In the name of unclogging court dockets, the council is considering a sweeping “omnibus” crime bill that would apply mandatory minimum sentencing to offenders convicted of second or third misdemeanors.
Mandatory minimums, it would seem, are an addiction that lawmakers just can’t kick. Mandatory minimum sentences have been around in some form since 1790, when death by hanging was prescribed for treason against the United States. But they were first invoked on a widespread basis in 1951, when the federal Boggs Act applied them to drug crimes. Then—as now—Congress was responding to public alarm about the prevalence of drugs and to persistent complaints about short sentences. It soon became apparent, however, that mandatory minimums weren’t the answer to either problem, and in 1970, following extensive hearings, Congress repealed most mandatory minimum sentences.
But the public memory is short, and mandatory minimums were revived in the ’80s by a spate of federal anti-crime initiatives collectively known as the War on Drugs. As always, lawmakers’ motives were political: A November 1993 General Accounting Office (GAO) report found that the laws were crafted in response to “public demands for harsher, more consistent punishment” for drug offenders—not necessarily to serve justice. The laws rob judges of their power to tailor punishment to the individual criminal, barring them from considering mitigating factors such as remorse and potential for rehabilitation.
Opposing the ’80s push for local mandatory minimum measures were then-Mayor Marion Barry, Corporation Counsel Judith Rogers, and then Councilmember Dave Clarke. But the public, terrified by a growing crime wave that, many suspected, was impelled by the illegal drug trade, demanded action against dealers and got it. With the support of then-Councilmember Nadine Winter (D-Ward 6), Councilmember John Ray (D-At Large)—a candidate for mayor—drafted a public initiative and obtained the necessary signatures to attach it to the ballot, which passed by a landslide.
But was the public well-served? It seems unlikely: D.C.’s mandatory minimum sentences are particularly hard on first-time offenders and street criminals. Basically, they work like this: Anyone caught distributing less than 500 grams of a “narcotic” or less than 50 grams of crack must serve a four-year term. If it’s a second offense, the automatic sentence jumps to seven years; two priors earn the dealer 10 years. If the dealer is caught with more than 500 grams of a narcotic or more than 50 grams of crack, he gets five years for a first offense, 10 for the second. Under the mandatory minimums, none of these convicted dealers can earn parole.
Since powdered cocaine is not considered a narcotic under D.C. law, the mandatory minimum shifts slightly: Dealers busted for moving less than 500 grams must go to jail for at least five years (first offense); eight years (second); or 10 years (third). Trafficking in more than 500 grams yields penalties of five years (first offense) and 10 years (second). The federal mandatory minimum sentencing scheme—under which Robin Nurse was sentenced—can be even harsher.
The irony of the drug laws, as Nurse learned to her dismay, is that trafficking small amounts of crack is punished more severely than dealing much larger amounts of coke. Some argue that the discrepancy is justified: David Mills, a former assistant U.S. attorney, points out that crack is a much purer form of cocaine. But civil rights activists point out that whites favor powdered cocaine, while the vast majority of crack sellers and users are black. As a result, the recipients of Draconian mandatory minimum sentences are, by and large, black.
It’s not that mandatory minimums remove discretionary judgment from the legal process; they simply transfer it from judges to prosecutors, who decide what the charges will be, whether to accept a plea bargain, and whether to bring the case in local or federal court. Frequently prosecutors will deliberately charge a defendant under the mandatory minimum law and then permit the defendant to “plead down” to a misdemeanor; in such instances, the threat of a mandatory minimum enables the prosecutor to ratchet up the penalty, ensuring more jail time. In 1983, the average maximum sentence for narcotics offenders was 5.65 years; by 1992, the average jumped to 7.69 years. Mandatory minimums also create a weird disparity in penalties: Under the old sen
Attorney David Riser points to other per
One U.S. attorney recalls a case in which a young woman received five years for trafficking a small amount of cocaine. The prosecutor, having snorted a few lines in her youth, realized with a shudder that the woman being taken away in handcuffs “could have been me 10 years ago.”
Criticism of mandatory minimums is not new. In 1986, the Washington Post ran a definitive four-part series detailing the many ways in which mandatory minimums have choked the city’s criminal justice system and stuffed its jails with nonviolent offenders.
So why is the council planning to expand mandatory minimums?
Presumably because the public wants guarantees that more criminals will do more jail time. Sally Weinbron, the legislative counsel for the measure’s sponsor, Councilmember Harold Brazil (D-Ward 6), assures that the proposal isn’t aimed at the person caught twice “stealing bread.” She notes that many criminals charged with felonies have been permitted to plead down to misdemeanors, and that the legislation would increase jail time for these convicts. Weinbron adds that some repeat misdemeanants would be exempt: The legislation would vest the U.S. Attorney’s Office with the authority to request mandatory minimums on a case-by-case basis.
Given the U.S. Attorney’s well-documented practice of requesting the harshest possible sentence for drug offenders, however, it seems unlikely that recidivist misdemeanants will be shown leniency. And even if the misdemeanant is allowed to plead down, the mandatory minimum scheme will surely boost the baseline sentencing, resulting in increased jail time for repeat offenders and more jail space occupied by low-level offenders.
Testifying against the measure in a two-day council hearing on the omnibus bill was Arthur Spitzer, director of the National Capital Area Branch of the American Civil Liberties Union. Spitzer pointed out that Mayor Kelly was recently arrested for civil disobedience for blocking a street while leading a protest for D.C. statehood. If rearrested for a similar offense, she could face mandatory jail time under the statute.
He likewise reminded several councilmembers who had been arrested for civil disobedience outside the South African embassy that, under the legislation, a repeat performance would leave a judge with no alternative but to toss them in the clink. Spitzer calls mandatory minimum sentences a “failure” and says that they “haven’t put a dent in crime.”
It’s not that the courts haven’t been pounding on crime. The D.C. prison population has ballooned from about 7,000 in 1985 to about 11,500 today—a 50 percent increase. Per capita, D.C. incarcerates more people than any state, some 4.5 percent of its total population. Lorton’s average daily population swelled 26 percent between 1987 and 1991, and the number of offenders entering Lorton in 1991 represented a 52 percent increase over 1987.
Of 8,000 convicts entering Lorton in 1991, over 3,500 were drug offenders. Prison overcrowding has led to court orders placing occupancy caps on prison populations. To relieve overcrowding, then-U.S. Attorney Jay Stephens reported in late 1989 that 3,500 prisoners had been granted early release from D.C. correctional facilities since 1987. These include inmates convicted of robbery, attempted robbery, assault, and weapons charges. Another 6,500 prisoners were released early between 1989 and 1992.
In addition to releasing offenders, the District has been forced to expand prison space, hire more personnel, and pay for convicts to be shipped to federal and out-of-state institutions. For improvements and expansion alone, the District authorized the payment of almost $500,000,000 (that’s half a billion) to the Department of Corrections between 1987 and 1992, on top of operating budget expenditures exceeding $1.25 billion over the same period.
And, while supporters hoped that mandatory minimums would greatly help to cut down on violent crime, they appear to have been mistaken. Violent crime continues to rise sharply; between 1982 and 1991, D.C.’s homicide rate grew 155 percent, while the aggravated assault rate increased by 91 percent.
Is it any wonder that Mayor Kelly recently said she “never thought that mandatory minimum sentences were a good idea”?
Meanwhile, first-time offender Nurse is receiving a firsthand education in the criminal justice system. In D.C. jail, she says, ad hoc tutors explain such illicit trades as pickpocketing and lock-picking. “It’s the most corrupt place in the world,” she says. “Here they make you feel like shit and that [you’re] always gonna be shit.”
So far, Nurse says she has resisted the assault on her morale; like many of her cellmates, she’s bitter about the severity of her penalty—particularly the crack charge—but claims to be channeling her bitterness in a positive way. She works with juveniles in the jail’s school, where she makes “them understand that they’re all worth something.”
“Society has to realize that the drug problem can’t be dealt with just by law enforcement,” she says. “Society has to go after what makes people that way, like why I was so materialistic to go after money.” Nurse has resolved that, when released, she wants to help other young women and work with crack babies. “I want to reach out to people…tell them not to go this way.”
She’ll get her chance—in about five years.