SCOTUS Rules on Mandatory Minimum Sentencing for Crack and Nudity & Profanity Fines Meted by FCC

Older convictions subject to new crack sentencing guidelines
By Stephen C. Webster - RAW Story
Thursday, June 21, 2012

In a 5-4 decision (PDF) on Thursday, the U.S. Supreme Court ruled that reduced sentences for crack cocaine, approved by Congress in 2010, must be applied to individuals with pending legal cases at the time of its passage if they had not yet been sentenced.

The nation’s top judges took up the Fair Sentencing Act (FSA) after two Chicago men were given mandatory minimum sentences as required by Congress in the 1980s, when a crack “epidemic” was sweeping the nation. Then, Congress set the sentence for simple possession of a single gram of crack to a minimum of five years, whereas someone found with less than 100 grams of powder cocaine wouldn’t face nearly the same sentence.

Due to the popularity of crack in low-income, urban communities, the harsh sentencing laws saw a wildly inordinate number of African-Americans jailed for much longer than white offenders caught with the more expensive powder cocaine. Crack and cocaine are the same drug in different forms, but crack is thought to be more addictive because it is commonly smoked, rather than snorted, producing a stronger and faster high.

Congress finally recognized this disparity and passed the FSA with bipartisan support in August 2010. The new law adjusted the sentencing rules to bring crack and cocaine penalties in line with each other, setting a mandatory minimum sentence of five years at 28 grams of crack, instead of one.

Just one month after that measure was signed into law, the two Chicago men — Corey Hill and Edward Dorsey — were both given mandatory minimum sentences in line with the Reagan-era penalties. Judges on the 7th Circuit Court of Appeals agreed with those sentences, too, noting that the men had both committed their crimes before the FSA was signed by President Barack Obama, and because it was not clear whether the FSA should be applied to cases pending at that time.

The Supreme Court reversed that decision on Thursday, however, after Justice Anthony Kennedy sided with Sotomayor, Kagan, Breyer and Ginsburg to overcome the conservative justices in a split decision.

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Supreme Court overrules FCC on TV swearing ban 
By Arturo Garcia - RAW Story
Thursday, June 21, 2012

So it turns out you can curse on television – sort of.

According to MSNBC, a ruling by the Supreme Court Thursday waived fines and sanctions against ABC and Fox, saying the Federal Communications Commission did not give them fair notice before punishing them over brief instances of curse words and nudity.

The ruling (PDF), which does not affect the FCC’s overall policy toward profanity, centered on outbursts by Cher and Nicole Richie on live awards shows on FOX and a brief instance of partial nudity shown on ABC’s NYPD Blue.

“Because the Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent, the Commission’s standards as applied to these broadcasts were vague,” Justice Anthony Kennedy wrote in the unanimous decision, adding that the FCC was free to revise its current policy “in light of its determination of the public interest and applicable legal requirements.”

How the War on Drugs Gave Birth to a Permanent American Undercaste

Tuesday, March 27, 2012 by TomDispatch.com
The New Jim Crow

by Michelle Alexander

Ever since Barack Obama lifted his right hand and took his oath of office, pledging to serve the United States as its 44th president, ordinary people and their leaders around the globe have been celebrating our nation’s “triumph over race.” Obama’s election has been touted as the final nail in the coffin of Jim Crow, the bookend placed on the history of racial caste in America.

Obama’s mere presence in the Oval Office is offered as proof that “the land of the free” has finally made good on its promise of equality. There’s an implicit yet undeniable message embedded in his appearance on the world stage: this is what freedom looks like; this is what democracy can do for you. If you are poor, marginalized, or relegated to an inferior caste, there is hope for you. Trust us. Trust our rules, laws, customs, and wars. You, too, can get to the promised land.

Perhaps greater lies have been told in the past century, but they can be counted on one hand. Racial caste is alive and well in America.

Most people don’t like it when I say this. It makes them angry. In the “era of colorblindness” there’s a nearly fanatical desire to cling to the myth that we as a nation have “moved beyond” race. Here are a few facts that run counter to that triumphant racial narrative:

• There are more African American adults under correctional control today -- in prison or jail, on probation or parole -- than were enslaved in 1850, a decade before the Civil War began.
• As of 2004, more African American men were disenfranchised (due to felon disenfranchisement laws) than in 1870, the year the Fifteenth Amendment was ratified, prohibiting laws that explicitly deny the right to vote on the basis of race.
• A black child born today is less likely to be raised by both parents than a black child born during slavery. The recent disintegration of the African American family is due in large part to the mass imprisonment of black fathers.
• If you take into account prisoners, a large majority of African American men in some urban areas have been labeled felons for life. (In the Chicago area, the figure is nearly 80%.) These men are part of a growing undercaste -- not class, caste -- permanently relegated, by law, to a second-class status. They can be denied the right to vote, automatically excluded from juries, and legally discriminated against in employment, housing, access to education, and public benefits, much as their grandparents and great-grandparents were during the Jim Crow era.

Excuses for the Lockdown

There is, of course, a colorblind explanation for all this: crime rates. Our prison population has exploded from about 300,000 to more than 2 million in a few short decades, it is said, because of rampant crime. We’re told that the reason so many black and brown men find themselves behind bars and ushered into a permanent, second-class status is because they happen to be the bad guys.

The uncomfortable truth, however, is that crime rates do not explain the sudden and dramatic mass incarceration of African Americans during the past 30 years. Crime rates have fluctuated over the last few decades -- they are currently at historical lows -- but imprisonment rates have consistently soared. Quintupled, in fact. The main driver has been the War on Drugs. Drug offenses alone accounted for about two-thirds of the increase in the federal inmate population, and more than half of the increase in the state prison population between 1985 and 2000, the period of our prison system’s most dramatic expansion.

The drug war has been brutal -- complete with SWAT teams, tanks, bazookas, grenade launchers, and sweeps of entire neighborhoods -- but those who live in white communities have little clue to the devastation wrought. This war has been waged almost exclusively in poor communities of color, even though studies consistently show that people of all colors use and sell illegal drugs at remarkably similar rates. In fact, some studies indicate that white youth are significantly more likely to engage in illegal drug dealing than black youth. Any notion that drug use among African Americans is more severe or dangerous is belied by the data. White youth, for example, have about three times the number of drug-related visits to the emergency room as their African American counterparts.

That is not what you would guess, though, when entering our nation’s prisons and jails, overflowing as they are with black and brown drug offenders. In some states, African Americans comprise 80%-90% of all drug offenders sent to prison.

This is the point at which I am typically interrupted and reminded that black men have higher rates of violent crime. That’s why the drug war is waged in poor communities of color and not middle-class suburbs. Drug warriors are trying to get rid of those drug kingpins and violent offenders who make ghetto communities a living hell. It has nothing to do with race; it’s all about violent crime.

Again, not so. President Ronald Reagan officially declared the current drug war in 1982, when drug crime was declining, not rising. President Richard Nixon was the first to coin the term “a war on drugs,” but it was President Reagan who turned the rhetorical war into a literal one. From the outset, the war had relatively little to do with drug crime and much to do with racial politics. The drug war was part of a grand and highly successful Republican Party strategy of using racially coded political appeals on issues of crime and welfare to attract poor and working class white voters who were resentful of, and threatened by, desegregation, busing, and affirmative action. 

In the words of H.R. Haldeman, President Richard Nixon’s White House Chief of Staff: “[T]he whole problem is really the blacks. The key is to devise a system that recognizes this while not appearing to.”

A few years after the drug war was announced, crack cocaine hit the streets of inner-city communities. The Reagan administration seized on this development with glee, hiring staff who were to be responsible for publicizing inner-city crack babies, crack mothers, crack whores, and drug-related violence. The goal was to make inner-city crack abuse and violence a media sensation, bolstering public support for the drug war which, it was hoped, would lead Congress to devote millions of dollars in additional funding to it.

The plan worked like a charm. For more than a decade, black drug dealers and users would be regulars in newspaper stories and would saturate the evening TV news. Congress and state legislatures nationwide would devote billions of dollars to the drug war and pass harsh mandatory minimum sentences for drug crimes -- sentences longer than murderers receive in many countries. Another racially motivated factor is in the longer sentences imposed upon offenders charged with possession of crack cocaine (associated with blacks) vs. the lesser sentences for possession of powdered cocaine (associated with whites).

Democrats began competing with Republicans to prove that they could be even tougher on the dark-skinned pariahs. In President Bill Clinton’s boastful words, “I can be nicked a lot, but no one can say I’m soft on crime.” The facts bear him out. Clinton’s “tough on crime” policies resulted in the largest increase in federal and state prison inmates of any president in American history. But Clinton was not satisfied with exploding prison populations. He and the “New Democrats” championed legislation banning drug felons from public housing (no matter how minor the offense) and denying them basic public benefits, including food stamps, for life. Discrimination in virtually every aspect of political, economic, and social life is now perfectly legal, if you’ve been labeled a felon.

Facing Facts
But what about all those violent criminals and drug kingpins? Isn’t the drug war waged in ghetto communities because that’s where the violent offenders can be found? The answer is yes... in made-for-TV movies. In real life, the answer is no.

The drug war has never been focused on rooting out drug kingpins or violent offenders. Federal funding flows to those agencies that increase dramatically the volume of drug arrests, not the agencies most successful in bringing down the bosses. What gets rewarded in this war is sheer numbers of drug arrests. To make matters worse, federal drug forfeiture laws allow state and local law enforcement agencies to keep for their own use 80% of the cash, cars, and homes seized from drug suspects, thus granting law enforcement a direct monetary interest in the profitability of the drug market.

The results have been predictable: people of color rounded up en masse for relatively minor, non-violent drug offenses. In 2005, four out of five drug arrests were for possession, only one out of five for sales. Most people in state prison have no history of violence or even of significant selling activity. In fact, during the 1990s -- the period of the most dramatic expansion of the drug war -- nearly 80% of the increase in drug arrests was for marijuana possession, a drug generally considered less harmful than alcohol or tobacco and as prevalent in middle-class white communities as in the inner city.

In this way, a new racial undercaste has been created in an astonishingly short period of time -- a new Jim Crow system. Millions of people of color are now saddled with criminal records and legally denied the very rights that their parents and grandparents fought for and, in some cases, died for.

Affirmative action, though, has put a happy face on this racial reality. Seeing black people graduate from Harvard and Yale and become CEOs or corporate lawyers -- not to mention president of the United States -- causes us all to marvel at what a long way we’ve come.

Recent data shows, though, that much of black progress is a myth. In many respects, African Americans are doing no better than they were when Martin Luther King, Jr. was assassinated and uprisings swept inner cities across America. The black child poverty rate is actually higher now than it was then. Unemployment rates in black communities rival those in Third World countries. And that’s with affirmative action!

When we pull back the curtain and take a look at what our “colorblind” society creates without affirmative action, we see a familiar social, political, and economic structure: the structure of racial caste. The entrance into this new caste system can be found at the prison gate.

This is not Martin Luther King, Jr.’s dream. This is not the promised land. The cyclical rebirth of caste in America is a recurring racial nightmare.

US Congress votes to cut cocaine sentencing disparity

(OK, props for recognizing such a racist penalty with a 100:1 ratio giving black offenders more jail time for crack than white offenders for powdered cocaine, but an 18:1 compromise instead of the bill's stated 1:1 ratio is still punishing the crack offenders worse than the powder offenders, therefore, it's still a racist sentencing bias!--jef)

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By Agence France-Presse | Wednesday, July 28th, 2010

The US Congress voted Wednesday to reduce sentencing disparities for offenders caught with crack cocaine versus the drug in powder form, a gap blamed for disproportionate jailing of black Americans.

The US House of Representatives, by voice vote, approved legislation the Senate passed in March, sending the measure to President Barack Obama to sign into law.

Critics of the US justice system's unequal treatment of the two versions of the same drug have argued that it disproportionately punishes African-Americans, who are convicted of crack possession in far greater numbers.

The bill cuts the 100:1 ratio in the amount of powder cocaine versus crack cocaine that trigger the same sentence, a disparity adopted in the mid-1980s amid fears a crack epidemic was fueling out-of-control violence.

The legislation as introduced by its lead author, Democratic Senator Dick Durbin, would have cut the ratio to 1:1, but dealmaking to ensure its passage resulted in a compromise ratio of 18:1.

The bill will reduce "the unwarranted lengthy sentences for crack cocaine that are devastating to African American communities," said Democratic Representative Jim Clyburn.

While just 25 percent of crack users are African-American, they constituted 81 percent of those convicted for crack offenses in 1987, according to the office of Senate Judiciary Committee chair Pat Leahy, a top backer of the bill.

That is "wrong and unfair, and it has needlessly swelled our prisons, wasting precious federal resources," Leahy said in a statement after the House action.

Under existing law, possession of five grams of crack cocaine -- roughly the weight of two sugar cubes -- triggers a mandatory minimum five-year prison sentence, the same triggered by trafficking 500 grams of powder cocaine.