Waiting on a fix
Harsh penalites are eased
That same year, Congress passed the Fair Sentencing Act, increasing the amount of crack needed to trigger mandatory sentences.
What the law did and didn't do
The new law helped thousands of prisoners, but not everyone. Thousands of inmates, including many so-called "career offenders," were ineligible. But nearly one in three prisoners found themselves in a loophole because Congress had not specifically written whether the Fair Sentencing Act's new mandatory minimum scheme should be applied retroactively.
= Approx. prisoners.
(Scroll for his story)
'Life without parole is a walking death'
TERRE HAUTE, Ind. — It takes almost 20 minutes from the time the call goes out on the radio for one of the employees of the high-security United States Penitentiary here to bring Andre Badley into the sterile confines of the one-on-one visiting room.
After he finally appears through the door on the other side of a thick pane of glass, Andre settles his 6-foot, 210-pound frame onto the small metal stool cemented into the floor. He drapes his green jacket over his knees and picks up the telephone, his hands still in shackles.
Andre has been in Terre Haute for only about a year and a half, but the federal prison system has been his home since 1997, when he was sentenced to life without parole for possession with intent to distribute 114 grams of crack cocaine.
He was 24 years old when he went in, and he will turn 41 this week. He has missed his four children's youth, as well as the death of his father and that of his grandmother, who raised him and struggled, unsuccessfully, to keep him off the streets of east Cleveland.
Andre was sentenced at a time when the government still zealously enforced the tough-on-crime drug laws of the 1980s, when getting caught with 5 grams of crack meant a mandatory minimum sentence of five years and 50 grams meant at least a decade in prison. His record of petty drug sales, which began when he was 16, qualified him for the drug wars' harshest weapon: a mandatory life sentence.
Nancy Kelley, the federal prosecutor who handled Andre's case in 1997, had, like almost all assistant U.S. attorneys, the discretion to include his prior convictions in the indictment against him. His 114 grams of crack had qualified Andre for a 10-year minimum sentence, but he was eligible for a mandatory life sentence if Kelley invoked two of his prior convictions. She chose to invoke three.
At Andre's sentencing hearing that September, after he had gone to trial and lost, his lawyer, Terry Gilbert, argued in vain to limit Andre's criminal history to one conviction and escape the life sentence.
"I'm saying this while I'm before you because it's just hard for me to believe that in America a man like a 24-year-old kid with (a) couple hundred grams of cocaine could get - never get out of prison, when people who are committing the most heinous crimes of violence, murder and just horrible kinds of crimes, actually could serve less than this man who has no violence in his history other than very small-time drug cases," Gilbert said at the hearing.
The presiding judge, David Dowd Jr., was sympathetic, but the law left no room.
"Counselor, I have absolutely no fault to find with your position," he said. "Unfortunately, I think it's one that has to be addressed by the Congress of the United States. And I suggest you run for Congress in the next election."
Thirteen years later, Congress responded. The Fair Sentencing Act, signed by President Barack Obama in August 2010, reduced the long-discredited 100-to-1 disparity between the amount of powder cocaine and the amount of crack needed to trigger the same mandatory minimum sentences. Someone like Andre would now have to be caught with 28 grams of crack to trigger the five-year sentence and 280 grams to trigger a decade.
Kelley triggered Badley's mandatory life sentence by filing an "information" about his prior felony convictions under section 851 of the Controlled Substances Act. This controversial tactic has come under increasing criticism: Judge John Gleeson in the Eastern District of New York recently described it as the "sentencing equivalent of a two-by-four to the forehead."
DOCUMENT: USA v. Lulzim Kupa
In 1986, the Anti-Drug Abuse Act set harsh penalties for small amounts of crack. In 2010, Congress passed the Fair Sentencing Act to remedy the problem — but a 18:1 difference still remains.
Using emergency powers granted by the act, the Sentencing Commission, an independent body that sets guidelines for judges, quickly decreased its array of recommended crack sentences and made them retroactively available to inmates who had been charged under the old regime.
Nearly 13,000 people petitioned judges to reduce their sentences, and around 7,500 were granted an average reduction of more than two years each. Some cut more than five years off their sentences. Others became eligible for immediate release. But members of Congress who wrote the Fair Sentencing Act, had neglected to say whether they intended to make their new mandatory minimum sentences retroactive as well.
If Andre petitioned for resentencing, he would now be subject to a five-year mandatory minimum, and his criminal history would no longer qualify him for life without parole. He would fall into a recommended sentence range of 140 to 175 months. Even if he received the maximum, it would be less time than he's already served. He could walk out of the prison in Terre Haute within weeks.
But because of his mandatory sentence and Congress' missing words, he can't.
Though the Sentencing Commission has the power to reduce its own recommended guidelines, it cannot touch the mandatory minimums absent a specific directive from Congress. In the world of federal sentencing, such statutes might as well be inscribed in stone, and because of Congress' omission, they still remain in force. The perverse effect has been to allow those sentenced far above the mandatory minimums to shave significant time off their sentences, while those at the minimum can go no lower.
Andre and nearly 9,000 other inmates serving mandatory time for crack crimes, including many imprisoned for life, have been left behind. Though the Obama administration has launched an unprecedented effort to grant clemency to people like Andre, that project remains in its infancy, and many experts have voiced concerns. New legislation that would close the loophole, called the Smarter Sentencing Act, could come to a Senate vote later this year. But until then, Andre and the others must wait.
The official summary of Andre's prison history, called an Inmate Skills Development Plan, is peppered with citations for drug use and fights. Robbery and rape by fellow inmates are real threats, he explains over the phone, unless pre-empted with violence. But since 2007, when the Sentencing Commission first signaled the possibility of change by unilaterally making small reductions to its recommended crack sentences, his conduct has been clear.
Still in the interminable hours behind bars, with little hope for release, waiting can be excruciating.
The government's push to rectify a three-decade-old injustice has yielded vastly different outcomes. In the Northern District of West Virginia, judges have approved 99 percent of all sentence reduction applications, while in the Northern District of Alabama, only 15 percent have been approved.
Explore a sortable table of sentence reductions
"I talked to my daughter maybe a month or so ago and she said, 'Things would've been different if you had been here.' Do you know how that feels? That hurts every day," Andre says, reaching up to brush away a tear.
When lawmakers wrote the Anti-Drug Abuse Act in 1986, creating the five and ten-year minimum sentences, they said they intended to target major drug traffickers. Instead, federal prosecutors used the powerful new tool against low-level street dealers like Andre.
Andre acknowledges his wrongdoing and says he deserved to be punished. But for life? "Never in a million years," he says, did he think that would be his sentence.
"You don't have no incentive to do right, to rehabilitate, to do nothing that's good. The only thing that keeps you functioning is the hope that possibly one day it can change," he continues. "If I'm sitting in here, life without parole is a walking death. That's what life without parole is, it's a walking death. You just said my life is worthless. For selling some drugs. At a small level. I just think that that's ludicrous."
Andre's mother, Carolyn Badley-Pinson, was born in Cleveland in 1958. Her mother had moved to the city from Trenton, N.J., and her father had come north from Grenada, Miss., looking for work. Her parents, who married in 1952, settled on the east side of the city. They had two daughters and five sons, one of whom died shortly after birth.
Between 1920 and 1960, Cleveland's black population grew by more than 600 percent. By the time the Great Migration had run its course, bringing millions of African-Americans from the South to the comparative desegregation and economic promise of the North, 29 percent of the city's 876,000 residents were black. But as industry and more affluent whites left inner Cleveland for the suburbs, the government's tax base and ability to pay for social services declined.
As the black population grew and the white population shrank, the Badleys' neighborhood, named Hough after its main avenue, began to boil.
By 1965, Hough (prounounced "huff") was 88 percent black. The white people who remained were increasingly viewed by other residents as business owners, not community members. Public housing was overcrowded, and public schools remained segregated in practice. Residents of a nearby Italian-American neighborhood protested when the city bused in Hough's children to force school integration.
After the federal Civil Rights Commission held a week of hearings in Cleveland in the spring of 1966, it concluded that the city's problems were "the classic ones of the ghetto: inadequate housing, schools and jobs." In Hough, those problems were acute. That July, the neighborhood exploded in the worst riots of Cleveland's history, and four African-Americans were shot and killed. In 1968, a shootout between police and black nationalists left three officers and seven others dead, and sparked five days of unrest.
Carolyn's parents, concerned about rising crime and signs that their two eldest sons were beginning to get into trouble, moved the family twice after the riots. But they never got very far. In 1970, they settled on Duluth Avenue, at the northern edge of the neighborhood.
From then on, Carolyn recalls, everything got worse.
That December, vandals set fire to a vacant apartment on Superior, a few hundred feet from the Badley house. The blaze spread down the avenue, destroying shops, apartments, a bank, a Woolworth's department store and the St. Francis Catholic Church and school. The damage was estimated to be $1 million, the city's worst fire in 15 years.
One morning the following September, after a summer of arsons had eaten up buildings across the east side, Carolyn's father suffered a fatal heart attack while he sat on the family's front porch waiting for a coworker to drive him to his construction job. Her mother, Margaret, who relied on Social Security and her late husband's Navy veteran's payments, was left to raise six children.
"She couldn't afford to just uproot us and take us nowhere else, so she tried to make the best of what we had, but we just was caught up in urban life," Carolyn says. "I mean, she raised us in church, and she tried to give us the best that she could give us, but we just got lost; a few of us just got lost to the streets, to the environment."
Two years later, not long after meeting a 16-year-old boy at a friend's house, Carolyn gave birth to Andre. She was 15 years old.
Andre's sister, Sireta, remembers how her brother spent his youth "between the grocery store and the corner stores."
Even in early adolescence he was industrious, fetching newspapers for a woman who lived across the street, then graduating to carrying customers' grocery bags from the store to their cars. When a nearby corner store that owned arcade games organized a competition that paid $5 per game each week to the player with the highest score, Andre mastered every one.
Carolyn gave birth to a daughter, Sireta, one year after Andre was born. The family - Carolyn, her mother, her two children and often her siblings — lived together in the house on Duluth.
Margaret kept famously strict rules and brooked no complaints, but the family was warm and close-knit. There were quiz nights and joke nights. For a group photo in 1987, Andre's mother, then a cosmetologist, styled his hair in tight Jheri curls. He smiled brightly.
Margaret gave all her grandchildren singsong nicknames. Andre's grew out of his middle name, Rashawn: "Shawnda-boodie, shawnda-boodie, shawnda-boodie." It was Boodie that stuck.
But beyond the warmth and love of that family photo, lurking just out of frame a few years in the future, the neighborhood's reality was never far from sight. It wasn't long before it made an impression.
"By the time he became a teenager, it was just outrageous," Carolyn recalls. "That's all it was from 80th and Superior to 65th and Superior, that's all it was: drugs and gangs and bars."
As Andre grew older, the neighborhood dealers began sending him on errands, tipping him to bring them food from nearby restaurants. They flaunted their new wealth.
"And he seen the kind of money that they was making," Carolyn says. "And they was wearing these fancy jackets and up-to-date tennis shoes, the Nikes and the Jordans, and every week they'd have another new pair."
Andre was 14, on the verge of high school, when the easy promise of the drug trade became too hard to resist.
"I remember it clearly. I was trying to get a summer job," he says. "I was trying to get my own job and I came down with the chicken pox."
He watched as most of his friends found legitimate work. Then he watched as others entered the crack game.
That fall, Andre found a job cleaning the Cleveland Browns' stadium. At the end of every third quarter, he and his crew would enter through security doors and move aisle to aisle. He took home minimum wage, around $60 to $70 every week. When he complained about the low pay to an acquaintance from East High School, where Andre was a freshman, the boy showed him how to take his $60 paycheck and buy $120 of crack.
It was that easy — mundane, even.
Every day, Andre went to school. During the season, he stayed late for track or football practice. Then, for one or two hours, he hustled.
It wasn't just that Andre hungered for the nice clothes and flashy sneakers that had always been out of reach for a boy from a place like Superior, or that he knew owning them would impress his friends and girlfriends. He did. But there was something more — the weight of manhood that had been thrust upon him too soon.
Andre's father, a welder named Darnell Cole, had never lived with the family. Though he married Andre's mother after she gave birth to two of his children, they divorced in 1978. Andre became the oldest man in the house.
"I didn't think about it 'til recently, but I used to always say, 'Where my man at? Where my man at?' And he was like, 'Right here, right here,'" recalls Carolyn, pointing at her chest in imitation of her son. "If I knew then what I know today, I wouldn't have did that, because it made him feel he had to do things that a grown man do — like take care of folks and get money and stuff that he shouldn't have even been thinking about as a child. So he started to do things to make money."
In the mid-1980s, crack was booming in America, expanding into Midwestern cities and sparking warfare between rival gangs struggling over new market turf.
At a party, a man introduced Carolyn to the drug. Since she had only ever smoked marijuana, he carefully showed her how to grasp the pipe, inhale the fumes and hold them deep inside her lungs for the most powerful effect. Euphoria washed over her. It chased away her pain and heartache. Smoking crack felt like self-medication.
"That was the best feeling I ever had, and it cost me the most that anything ever cost me in my life," she says.
That year, an elderly boarder Margaret was hosting dropped his lit cigarette on his bedroom floor. The fire destroyed of the roof of the family's Duluth Avenue home and forced them to move into a two-story house she had bought on Bayliss Avenue, several hundred feet away on the other side of Superior.
Andre and his sister lived on the second floor, and though he tried to keep his nascent drug dealing a secret, Sireta noticed his clothes becoming more stylish, and more expensive. (Andre was not a crack user himself: While he smoked marijuana, he used cocaine only once, when he smoked a "premo" — marijuana laced with cocaine — and didn't enjoy it.)
In 1989, his mother found a stash of money that he had hidden beneath the front porch and confronted him. It was the first blowout argument that anyone in the family can remember. Andre lied, saying he had earned it helping a friend sell marijuana. She believed him.
Andre had already experienced his first arrest, for robbery, the year before, when he was 15. The charge had been dismissed.
His first three significant cases would come early in 1989, in quick succession before his 16th birthday: two arrests for drugs and one for "criminal damaging." During an attempted robbery that year, in which he was a bystander, he had been shot in the leg.
After he was finally brought before juvenile court for his three arrests, he was committed to the Ohio Department of Youth Services on April 10. On Aug. 16, two days after he was released, his girlfriend, Charletta Green, gave birth to his first child, a daughter they named Monae.
By the 1990s, the government believed that the majority of domestic cocaine trafficking in the United States was carried out by Caribbean-connected gangs with tens of thousands of employees, and a task force meant to target such organizations would later focus on Andre. Jamaican "posses," which were alleged to control a $1 billion annual business, were singled out for attention.
In the early 1990s, Carolyn and her son raced down parallel tracks toward disaster.
Once a month, she took the pay she earned as an assembler at a Ford Motor Co. plant and visited the man who had introduced her to the drug. She'd stay with him for four or five hours, smoking and getting high.
But once a month became twice a month, which became every Friday, which eventually became every other day. Depressed by the harsh divorce from Cole and his new life with another woman, and exhausted by chasing him for child support, she relied on crack to escape her depression. Her addiction, she says, destroyed both her finances and her relationships with her mother and her children. Later, after Andre received his life sentence in 1997, Margaret would kick Carolyn out of the house.
After Monae's birth, Charletta Green's mother threw her out. When Andre tried to convince his grandmother to let his girlfriend and child live with them, she refused. Andre and Green decided to rent an apartment.
"That's what pushed me into the streets much harder and stronger," he recalls.
As a minor dealing drugs in small quantities, Andre felt little fear of jail time. Often, the police would arrest him and quickly release him into his mother's custody.
After finding his money under the porch, Carolyn began following Andre around the neighborhood to stop him from dealing. Still addicted herself, she forced her way into crack houses to search for her son. Sometimes she got into fights. Once, she fired a gun into a woman's home.
Selling crack was routine along Superior Avenue, as ubiquitous as its corner stores. East High School, Carolyn recalls, was "infested" with gangs and drug dealers. At the time, the illicit trade seemed almost harmless to Andre. More importantly, it carried a power that he couldn't turn his back on, lifting those who sold drugs above the ghetto's grinding poverty.
With rolls of bills now filling his pockets, Andre could treat Sireta to the game rooms, buy his friend a new pair of Air Jordans to wear on the basketball courts at college, or hand out a few dollars to an elderly woman for bingo.
"Selling crack is just like using it; to a degree it's an addiction," he says. "I didn't know, all I knew is I'm helping my family, I'm putting smiles on people's faces."
In the months leading up to the summer of 1990, Andre was arrested three times on drug charges, including one arrest that earned him 60 days in jail, although still a minor, because he was carrying a fake ID.
In December, he was arrested again for selling drugs and released. Charletta Green gave birth to their second daughter, Andrea, in January. But three weeks later, his 1990 spree caught up to him, and he was sent back to the Department of Youth Services for eight months. While serving his time inside the youth facility, Andre turned 18 and earned a high school equivalency diploma by passing the GED.
When he emerged from custody as an adult, his troubles accelerated.
In July 1992, Andre was driving a Kawasaki motorcycle east of Hough when police stopped him for not wearing a helmet or eye gear. Officers arrested him when he gave them a friend's driver's license instead of his own, then found a plastic bag with a 6-gram crack rock in his hand, as well as $482 in his pocket. In late August, police spotted Andre flagging down a car a few blocks from Superior Avenue and chased him into a stranger's house, where they arrested him. In an orange bottle that they said he had thrown on the ground at the beginning of the chase, they found five crack rocks.
"I'm tired of you white motherfuckers always catching me," Andre told the officers, according to their account. "I ain't the only one selling shit."
On Oct. 1, Andre's new girlfriend, Mesung Bennett, gave birth to his first boy, whom they named Andre Junior. But at the end of the month, police in east Cleveland arrested him again after watching him make a deal through the window of a stopped car. After searching him, officers found $461 and 14 crack rocks that weighed a total of 2.5 grams.
In March 1993, Andre was sentenced to a year in jail on the three arrests — the same charges that would later trigger his life sentence. He was released that November. Even if Andre had wanted to leave crack behind, now that he was an adult felon, finding legitimate work had become almost impossible. He took under-the-table gigs with a construction company's cleanup crew and at a Superior Avenue lounge, but neither lasted.
"I think he felt like he had no other option but to go back to what he knew to do to get money, to survive, which was hustling," Carolyn says.
By 1994, Andre had come to the attention of a powerful joint law enforcement operation in northern Ohio called the Caribbean Gang Task Force. Founded in the late 1980s under the direction of the Treasury Department's Bureau of Alcohol, Tobacco and Firearms, the operation had by the mid-1990s been turned over to the leadership of the Federal Bureau of Investigation.
Employing officers from more than a dozen different city and state police forces, as well as federal agents, the task force was built to sustain lengthy, sprawling investigations involving wiretaps and extended surveillance aimed at taking down a network of Jamaican immigrant "posses" accused of coordinating thousands of members in an effort to monopolize the retail side of crack cocaine distribution in the United States, often using violence.
The task force was meant to roll up conspiracies involving large groups of people moving millions of dollars' worth of cocaine and heroin.
"We have to get the big fish, and in order to work your way up the organization, sometimes you have to go after the ones on the street that are actually distributing to the customers," said Vicki Anderson, a spokeswoman for the Cleveland FBI office.
In October 1994, FBI agents on the task force received a tip that Andre, known to them by his nickname, Boodie, was a drug dealer and member of a gang called the Down the Way Boys. ("Down the Way" has long been a slang term for Cleveland's east side. Andre, his mother and his lawyer say there was never a gang with that name.)
On Nov. 3, agents tried to follow Andre as he left the apartment of his latest girlfriend, a woman named Lahran Small, but they lost him. The next day, they watched him again as he left Small's apartment and entered a taxi.
After the agents followed him for several blocks, they stopped the taxi and ordered Andre out at gunpoint. After searching him, they found money and one crack rock. Back at Small's apartment, they found two guns.
'I'll be alright'
More than three months passed before agents from the task force acquired a search warrant to raid Andre's grandmother's house on Bayliss Avenue. At the time, Andre was in jail after being arrested on allegations that he had assaulted Small. By coincidence, the agents arrived on the same day — Feb. 28, 1995 — that Carolyn's brother Kenneth had died of a pre-dawn heart attack. Relatives had packed the house to mourn.
"I just remember a hard knock at the door," Sireta says.
There were agents everywhere, even on the roof. They ordered everyone in the house to stay still. One was apparently talking to Andre on the phone.
Kenneth, who had also sold drugs, had been living in Andre's old bedroom while Andre lived with Lahran Small downtown. Andre still kept shoes and clothes there. Inside a safe in the room, agents said they found personal papers that belonged to Andre, a brown paper bag with 123 grams of powder cocaine, and a plastic bag with 114 grams of crack.
When agents discovered the safe, they called Andre and demanded the combination, Carolyn recalls. They threatened to involve his grandmother in the investigation if he didn't help, she says. By then, Margaret was ailing and had lost her eyesight.
Later, under questioning, Andre said the drugs belonged to his uncle. Investigators said that his fingerprints had been found on the paper bag, Carolyn recalls.
"I can't honestly tell you whether that was Andre's dope or my brother Kenneth's dope," she says. "I can't see [Andre] leaving his drugs upstairs while he is living downtown."
On July 2, 1996, while free on bond, Andre was arrested again on drug charges. This time, he was kept in state custody and not released. While still in jail, on July 11, he married Small. Their daughter, Tiandrea, was born on Jan. 4, the following year. After Andre received his life sentence that September, Small gave her up for adoption. The family has never seen Tiandrea. Small and Andre later divorced.
In fall 1997, he was acquitted on the gun possession charge and received life without parole for the drugs. At the end of his sentencing hearing, Judge Dowd wished him good luck.
"I'll be all right," Andre said.
After spending her savings and taking out home equity loans to pay for his various appeals, Andre's grandmother died on Feb. 8, 2004. He requested permission from his prison to attend her funeral, and his family offered to pay for his travel, but was refused on the grounds that his life sentence and security level made him ineligible for a furlough.
Today, the family home on Bayliss Avenue is empty and boarded up. Two-year-old building permits stapled to the padlocked front door flap in the wind.
The block never broke free from the neighborhood's history. Only a few houses bear signs of life. The rest have broken or boarded windows, collapsed porches and graffiti-scrawled facades. On a recent morning, two men helping their friend move to a new house around the corner pointed to a space between two buildings where a man had been shot to death in January.
Andre's mother, who suffers from heart disease and diabetes, which run in both sides of her family, was caught in two gang shootings on Bayliss in the 2000s. She was struck by bullets in the hand, finger and arm. Not long after, she finally moved to Cleveland's west side.
"After my son went to jail, my sister, my brother, my daughter — everybody got away from Superior. They all went west, but I held on for dear life," Carolyn says. "It's a cancer down there, and I thank God my daughter wouldn't stop talking 'til she got me off that east side."
She has given up crack and leads a children's church group she started years ago on her front porch, where she used food stamps to buy her students juice and potato chips.
Carolyn says she knows her son did wrong. But she also believes that he — and other boys like him — were bit players in a problem of far larger proportions.
"They ain't nothing but small potatoes.... They not the rain shower, they the drippin' off the leaves," she says. "They took Andre off the street, but they ain't take drugs off the street."
If he gets his second chance, she says he won't make the same mistake again. His mother is clean, his sister is around; they both have houses where he can stay as long as he wants.
"I just hope I don't die too before he comes home," she says.
If the Smarter Sentencing Act passes, Andre will, like thousands of others convicted on old crack laws, likely return to his original northern Ohio judge, David Dowd Jr., to apply for reconsideration of his sentence. If the new law doesn't pass soon, his federal public defender, Jeffrey Lazarus, says Andre will apply for a presidential commutation.
"Mr. Badley is the poster child for those who received these egregious drug sentences in the 1990s," he says.
If Andre returns to Dowd, who declined to comment for this article, it could be the last episode in a long journey.
Nine years after being sentenced, in the wake of a Supreme Court decision that loosened the control of the Sentencing Commission's guidelines, Andre wrote Dowd from a federal prison in Jonesville, Va., to ask him "to please reconsider if you may my sentence of being imprisoned for the rest of my entire life."
A month later, Dowd wrote back to say the decision would not affect Andre's case, but he included a glimmer of hope: "Speaking on my own behalf, I would welcome such an opportunity because I was of the view then, and I remain of the view now, that the mandatory life in prison sentence that I was required to impose upon you was excessive."
In 2007, after the Sentencing Commission lowered its recommended crack sentences, Andre applied on his own behalf for reconsideration.
Though his application would be denied, he wrote to Dowd again to thank him.
"I've lost my family for the most part due to deaths or of them losing hope in me coming home," he wrote. "But I have not! And sir, your words of opposing these laws truly has given me strength."
NEW YORK CITY — Clarence Aaron says he had no idea how much prison time he could face until the day he was sentenced. A first-time offender, the college football star, who rose from the housing projects in Mobile, Alabama to Southern University in Baton Rouge, La., thought he was looking at no more than 10 years for his role in a drug conspiracy — driving twice from Mobile to Houston to pick up cocaine, for which he was paid $1,500.
Instead, Aaron, then 24, received a triple-life sentence — more than anyone else charged in the conspiracy, though he was not the buyer, the user, the supplier or the dealer.
Prepared to pay with a few years of his young life, Aaron was stunned to learn he was going to die in prison.
"Only at the county jail, when it settled in, did I realize what I was faced with," he says.
Since Aaron went to prison in 1993, lawmakers across party lines and government branches have gradually rolled back the measures associated with the tough-on-drugs era in which he was sentenced: inflexible mandatory minimums, broad and unfettered prosecutorial discretion and a disparity in how crack and cocaine were treated by the criminal justice system. The Smarter Sentencing Act, currently pending in Congress, would make some of these changes retroactive for thousands of inmates serving crack sentences. But many inmates who fall outside the act's scope would not be helped.
The only way for Aaron to benefit from America's rethinking of the drug wars was a long-shot — clemency.
But roughly 13 years after Aaron first petitioned for relief, on Dec. 19, 2013, President Barack Obama used his executive power to make a point, commuting the sentences of Aaron and seven others who were caught in what the president called the "decades-old injustice" of the crack cocaine sentencing disparities.
"It hit me like a ton of bricks, I couldn't speak at that moment," Aaron says of when he heard the news. "I was always praying but didn't know it would happen. So many years had gone by."
Now, the Obama administration wants to use the presidential clemency power on a much larger scale to remedy three decades of repudiated drug policies.
To do so, the administration has called on the defense bar to help it find inmates who may qualify and prepare sentence commutation applications on their behalf. The Justice Department is seeking help from the very lawyers who have long fought the government over those harsh measures ever since they were introduced in the 1980s.
The Justice Department though still finalizing the process, says it will run the applications through what critics describe as the tarnished, understaffed and hardly prolific Office of the Pardon Attorney, raising questions about the neutrality and seriousness of the effort. (In five years, Obama has granted a total of 52 pardons and nine sentence commutations, the lowest rate of any president.)
In addition to its pending backlog of clemency applications, the Pardon Attorney was also subject to a December 2012 Justice Department investigation by the Office of the Inspector General. The resulting report found that the conduct of the pardon attorney, Ronald Rodgers, "fell substantially short of the high standards to be expected of Department of Justice employees and the duty that he owed to the President of the United States." The Inspector General said that Rodgers misled the White House by concealing information pertaining to a sentence commutation. The report also recommended that the deputy attorney general review Rodgers' conduct for possible administrative action.
That inquiry was triggered by concerns over the Pardon Attorney's handling of one specific application, which came to public attention after a joint investigation by the Washington Post and ProPublica.
The applicant was Clarence Aaron.
A call for clemency
On Jan. 30 2014, two days after Obama vowed in his State of the Union address to employ unilateral executive powers where he could to avoid Congressional intransigence, his deputy attorney general James Cole fired a first shot across the bow.
Speaking at the annual meeting of the New York State Bar Association, Cole said the president's commutations had been "only a first step." The president, he said, "has the ability to take executive action to positively impact the criminal justice system." Aside from fairness concerns, Cole emphasized that clemency could help alleviate what he characterized as the "crisis" of a "crushing prison population," which was draining $6.5 billion a year from government budgets.
Cole appealed to the gathered lawyers to help the president and Justice Department locate prisoners sentenced under harsh drug laws and assist them to apply for presidential clemency.
Presidential clemency comes in two basic forms: a commutation or a pardon. A commutation can reduce or eliminate a person’s prison sentence but does not imply their innocence or restore the civil rights they lost because of their conviction. A pardon, which is often granted after a person’s sentence is complete, also does not imply innocence but does restore certain rights, such as the ability to vote and run for office.
Prior to becoming pardon attorney in April 2008, Rodgers spent nearly a decade as a prosecutor in the Justice Department's Narcotics and Dangerous Drugs section. Until retiring in 1999, Rodgers served in various legal offices within the Marine Corps, which he first entered as a second lieutenant in 1977.
Since Congress created mandatory minimum penalties for crack in 1986, offenders have consistently received sentences on average a third longer than those handed down to powder cocaine dealers.
Average prison sentence for crack and powder cocaine offenders, in months
Source: U.S. Sentencing Commission Annual Sourcebooks.
The clemency call came on the heels of Attorney General Eric Holder urging Congress to pass the bi-partisan Smarter Sentencing Act and his August 2013 directive to federal prosecutors not to charge low-level nonviolent drug offenders in a way that would trigger what he has called "draconian" mandatory minimum sentences.
But while Obama and his top legal appointees clearly think now is the time to push for an historic fix to broken drug policies, they are short on specifics.
In his speech, Cole offered a sketch of which prisoners might qualify for clemency. He said the government was seeking petitioners who had a clean prison record; do not present a threat to public safety; had a low-level role in the drug operation; and who are facing a life or near-life sentence that is excessive under current law, conditions which would exclude those who had any significant ties to large-scale organizations, gangs, or cartels. Clemency, Cole's criteria also implied, would not be limited to crack.
At points, Cole's criteria seemed contradictory. He cited Aaron and the seven others whose sentences were commuted in December as examples of ideal candidates, though it's likely not all of them would have qualified under his criteria.
Cole's reference to alleviating the overwhelming prison population also seemed to suggest that the Justice Department envisioned a significant number of sentence commutations. But his vague guidance has made it hard to project how many prisoners might qualify. For example, it's not clear which sentences might qualify as "near life," let alone how many petitions the Obama administration wants to grant. The Justice Department declined to say whether it had estimated how many people might qualify and how many the government expected to apply.
Nonetheless, Margaret Colgate Love, who was Aaron's lawyer and former Pardon Attorney under presidents George H.W. Bush and Bill Clinton, said Cole's plea was more than symbolic.
"It seems to me there would be no reason for the number-two official in the Justice Department to make the speech he did if the administration was not serious about using the pardon power in a systematic way to correct sentences the President himself has described as unjust," she said.
Opening the flood gates
Word of the clemency push has already spread among prisoners serving lengthy drug sentences, according to Aaron.
"People are talking about it, and discussing 'how do I do this, what is the best means of doing it,'" he says. "They thought it was always rubber stamped 'no,' but now they feel like it will be read, that they will have an opportunity to show that 'this is the person I am, not the person I was on that one particular day.'"
Indeed, the New York Bar Association, which said it was not aware that a major policy announcement would be made at its January luncheon was caught off guard. The group has begun to look into how it might respond to Cole's call.
Samuel T. Morison, a former staff attorney under the Pardon Attorney and now a criminal defense lawyer in Washington, D.C., says the Justice Department has created unrealistic expectations. Prisoners have already contacted him to ask where they can "sign up" for their presidential commutation.
"They risk opening the flood gates," Morison says.
On Feb. 21, roughly a month after Cole's speech, representatives from some of the main organizations that have long opposed the tactics of the war on drugs — the National Association of Criminal Defense Lawyers, the American Civil Liberties Union (ACLU), the Federal public defender and Families Against Mandatory Minimums — were asked to meet with Cole at the Justice Department. While they kept details of the meeting private, in its wake, the groups formed an initiative they called the Clemency Project 2014.
Left with only Cole's speech, the December clemency cases, and Holder's August 2013 directive, the groups have been parsing the government's words to paint a picture of ideal clemency candidates.
The groups anticipate they will send the Pardon Attorney applications of inmates who not only would have been sentenced differently today — the kinds of cases addressed by the Smarter Sentencing Act — but also those who would be charged differently today under Holder's new policies, potentially widening the pool of candidates even more.
They are also trying to staff a project whose numbers they still can't estimate: The clemency process has to be initiated by prisoners and, without large staffs of their own, the groups will rely heavily on volunteer lawyers. The project then plans to provide free training, support and resources for those lawyers.
According to Clemency Project 2014, the Bureau of Prisons will notify all inmates of the clemency call and direct them to contact the project if they are interested.
Of course, inmates are unlikely to take themselves out of the running, making the culling process more challenging, says Mark Osler, director of the Federal Commutations Clinic at the Univ. of St. Thomas (MN).
"I think DOJ is counting on the private sector to do this and in a coordinated way," he says.
While the groups are not projecting precise numbers, Vanita Gupta, Director of the ACLU's Center for Justice, says, "We believe there is a substantial number of people who are eligible in the federal system pursuant to the criteria."
Ultimately, the petitions will still go through the Office of the Pardon Attorney (OPA), where Aaron's quest for relief was repeatedly thwarted, according to the Inspector General's report.
Aaron's first petition, filed in 2000, was pending for eight years before it was denied. (The joint ProPublica and Washington Post investigation of the Office of the Pardon Attorney showed that from 2001 to 2008, white applicants were nearly four times as likely to receive presidential pardons as minorities.)
Aaron applied again in 2010. Three years later, he received the news of Obama's clemency and was told he would get to go home, long after his co-defendants had been released and returned to their lives.
"The Office of the Pardon Attorney is not really functional," says Amy Baron-Evans, sentencing resource counsel at the federal public defender's office. "We hope that we don't need to remind [the Justice Department] how badly this has gone in the past, and we hope they will do something different."
Notably, the Pardon Attorney did not attend the meeting between the Clemency Project leaders and the Justice Department, according to people familiar with the meeting but who did not attend. (A Justice Department spokesperson declined to comment on whether he attended.)
The Justice Department did not respond to questions about the status of the Inspector General's investigation into Rodgers' handling of Aaron's clemency application.
In addition to the pending investigation report, people familiar with the OPA also raised questions about staffing. According to the Pardon Attorney's website, there are 2,785 commutation applications and 754 pardon applications already pending so far this year. Estimates have the staff at 6 people.
"They have a backed up pipeline at one end, and they're inviting more to come in the other," says Nancy Hoppock, executive director of the Center on the Administration of Criminal Law, which runs the Mercy Project, an effort that pursues commutations for federal prisoners. "If the White House is serious about this, they're going to have to augment, at least temporarily, the resources of the Office of the Pardon Attorney."
The Justice Department, meanwhile, says the government is prepared.
"The deputy attorney general has directed the Pardon Attorney's office to make commutation applications a priority, and the department is committed to devoting the resources necessary to make sure we are able to handle any new petitions," a spokesperson said.
While the Justice Department declined to say how many people might be added to OPA's small staff, the department said Cole has assigned two people in his office to oversee the clemency push.
"We are taking DOJ at its word, and it seems to be signaling this is not business as usual," says the ACLU's Gupta. "We are encouraged by that, but there are no guarantees."
She adds, "If it turns out it nothing has changed, we are going to face that then."
An historical precedent — ignored
The Obama administration, meanwhile, doesn't seem interested in reviving what is the most often recommended model to resolve the crack and cocaine sentencing disparities: the Ford Clemency Board.
Created in 1974 by President Gerald Ford, it heard clemency applications from draft violators and those who deserted the military during the Vietnam War era. Between 21,000 and 27,000 people petitioned the board, all were reviewed, and around 90 percent were granted clemency. The board, which existed for one year, initially had nine members, but because of the workload was expanded to 19. It employed approximately 400 staff attorneys, who handled most of the file reviews.
Between 1961 and 1963, President John F. Kennedy, working through the Pardon Attorney, also commuted the sentences of several hundred people sentenced under the mandatory minimum penalties of the Narcotics Act of 1956, after they also came to be seen as too harsh. While that was a sizeable proportion of the federal prison population then, the number is dwarfed by today's potential pool, which is why the Ford model is more often invoked.
At the University of St. Thomas, Osler, who also authored a 2011 article recommending the Ford approach, says the model "returns the pardon power to its proper place rather than the bottom drawer where Clinton and Bush left it to fester."
"I always saw it as an affirmative duty; it's part of the job," says Robert Ehrlich, a former Republican Governor of Maryland who founded a clemency clinic at Catholic University's Columbus School of Law that educates governors and their staff about clemency.
When he was governor, Ehrlich assigned five lawyers in his office to consider clemency cases. In one term, he granted 227 pardons and 21 commutations.
"There's a strong tradition of using that power by executives in this country as a tool to help balance the scales of justice," he says. "Regardless of party, we need to take that power seriously."
Osler says the Ford board's most important feature was that it was created outside of the Justice Department and was bi-partisan. Now, he says he sees the current process as backwards both ways.
"You've got the mercy process embedded in the house of prosecutors and the defenders — who have the opposite problem — discerning which applications are inappropriate," he says.
Morison, the defense lawyer who worked for the Pardon Attorney for 13 years, says the office's approach is driven by institutional self-interest and a desire to keep old sentences in effect.
In the last days of the President Bill Clinton's administration, when "the word on the street was the president is going to grant some commutations, and he wants to do something big," Morison said the news spread quickly in the prison system, and soon the long hallway outside his office was lined with rows of commutation applications five boxes high.
"No one even opened them until Clinton left office," he said. Similarly, when President George W. Bush sought to grant more commutations and asked the Pardon Attorney to recommend more applications, the office refused to give more than just a handful.
"They know they can run the clock out," Morison says.
He said he was skeptical that the Justice Department was prepared and committed to approve more than a symbolic number of commutations.
"Traditionally, OPA are looking for a reason to say 'no,'" he says. "It would be a sea change if now they are looking for a reason to say 'yes.'"
Aaron, meanwhile, thinks the clemency call is a great idea.
"You do have a lot of guys inside fences and walls that are working on themselves, who like me didn't want their situation to define who they are as a person," he says. "We did need to be punished, but to the extent that we were?"
For those who thought Aaron was punished too severely, his April release will be a long time coming.
"When Clarence got [clemency], so many of us had tears in our eyes," says the ACLU's McCurdy. "It was very emotional for many of us who have been looking at his case for years."
Aaron is aware that people who might oppose his release or the president's clemency push will be watching him to see if he gets in trouble again. But he says, "I welcome the scrutiny and have nothing to hide."
When his day of freedom comes, Aaron knows exactly what he's going to do first, after thanking God.
Stumbling for the first time with words and emotion, he says, "In 2005 my baby sister passed. I'm going to go to her grave."
On Thursday, Feb. 27, 2014, Aaron, who had been moved to a halfway house after his sentence was commuted and was scheduled for April 17 release, was told he would serve the rest of his time under house confinement. The following day, he went home.
Last summer, Holder sent shockwaves through the criminal justice community by instructing federal prosecutors to avoid imposing "unduly harsh" sentences on low-level, non-violent drug offenders through the filing of 851 "informations" or triggering of mandatory minimums. His memo suggested an end-run around the nearly three-decade-old laws: Simply don’t include the amount of drugs.
DOCUMENT: Holder's memo
A Mandatory Solution
WASHINGTON, D.C. — In 2011, when President Barack Obama first used his powerful executive privilege to commute a federal prisoner's sentence, the beneficiary wasn't a politically connected fundraiser or a White House operative but a 34-year-old mother of three from Illinois who was arrested in 2000 for having traded a few rocks of cocaine for designer clothes.
Eugenia Jennings' short criminal history — she had been twice convicted for selling less than 2.5 grams of crack, or roughly two and a half sugar packets — allowed prosecutors to charge her as a "career offender," pushing her sentence from five years, the mandatory minimum, to nearly 22. She was 23 years old.
If Jennings had been selling powder cocaine and not crack, her sentence would likely have been half as long.
"I thought to myself, that's just plain wrong. Over 20 years?" Sen. Richard Durbin, a Democrat from Jennings' home state, says.
Durbin first heard Jennings' story in April 2009, when her brother, Cedric Parker, spoke before the Senate Judiciary Committee's Subcommittee on Crime and Drugs.
Parker described how Jennings, the youngest of seven children, was beaten and "emotionally brutalized" by the surrogate mother with whom she often lived. When Jennings was seven, he said, she was left for days in the care of a prostitute, who sexually assaulted her. He said she dropped out of school when she was 13, became addicted to crack by 15 and gave birth to her first child at 16.
Durbin soon traveled to Greenville, a small town in south-central Illinois, where Jennings was serving her term in a medium-security federal prison.
"She was the nicest, sweetest person in the world," Durbin recalls. "She had done everything right in prison and she just missed her babies. Her babies are now teenagers. She said: 'Senator, if I ever get out of here, I'll never commit another crime.'"
Durbin petitioned Obama, who commuted Jennings' sentence more than a decade after her conviction.
In his testimony, Parker quoted the words of Judge G. Patrick Murphy, who had reluctantly sentenced Jennings in 2001: "Your whole life has been a life of deprivation, misery, whippings, and there is no way to unwind that. But the truth of the matter is, it’s not in my hands."
DOCUMENT: Parker's testimony
It was a dramatic reversal for Durbin. Twenty-five years earlier, as a member of the House of Representatives, he'd been one of the many original co-sponsors of the 1986 Anti-Drug Abuse Act, the signature legislation of President Ronald Reagan's drug wars.
Drafted in haste after the cocaine- and alcohol-fueled death of University of Maryland basketball star Len Bias, and amid a growing national panic over the spread of crack cocaine, the act created mandatory-minimum sentences for a host of illegal drugs — the first time Congress had enacted mandatory drug penalties since 1970.
The Anti-Drug Abuse Act included a 5-to-40-year sentence for trafficking in 5 grams of crack and a sentence of 10 years to life for trafficking in 50 grams. It also established the 100-to-1 disparity between the amount of crack versus powder cocaine needed to trigger the same sentences.
There was another striking imbalance: African-Americans were being convicted of crack trafficking crimes at a rate that dwarfed that of the rest of the population. In 1993, nearly a decade after the penalties went into effect, the federal Sentencing Commission reported to Congress that 88.3 percent of all crack convicts were black and called the disparity "a matter of great concern," recommending that lawmakers "revisit" both the 100-to-1 ratio and mandatory-minimum sentences.
Since the onset of the Anti-Drug Abuse Act, the vast majority of people imprisoned on crack offenses have been black. "What it did was … remove generations of individuals from communities that really needed and required that kind of strength," says Vincent Southerland, senior counsel at the National Association for the Advancement of Colored People (NAACP).
Source: United States Sentencing Commission Sourcebooks, 1996-2012, Table 34, "Race of drug offenders by each drug type."
It would take almost two decades before Congress acted. In 2010, in the wake of a financial crisis that brought ballooning prison populations under scrutiny, Durbin joined with Jeff Sessions, a Republican senator and former federal prosecutor from Alabama, to pass the Fair Sentencing Act.
Durbin, a lawyer by training, is now pushing ahead with the Smarter Sentencing Act, which he introduced last July.
The bill received approval from the Senate Judiciary Committee in January and is riding a wave of conservative interest in criminal-justice reform from Tea Party politicians such as Republican Sen. Mike Lee of Utah, an original co-sponsor, and Raul Labrador, a Republican representative from Idaho, who is sponsoring the companion bill in the House.
But Durbin, the Senate's majority whip, may find that mustering the votes for this new bill — which would also cut the mandatory-minimum drug sentences in half — is a tougher sell this time around. He'll need to convince traditional conservatives to sign on to the biggest sentencing reduction in decades, and already some are balking. Sessions, the Fair Sentencing Act's key cosponsor, has already said no.
'The goal was to nail the kingpins'
Much has changed since Congress wrote the mandatory drug sentences in 1986. National crime rates have fallen, a new generation of politicians has taken office, and many of the most widely cited justifications for passing the laws in the first place have been debunked.
"We heard there was this new narcotic on the street, dirt cheap, addictive, that would destroy the lives and destroy the babies that the mothers carried, and we overreacted," says Durbin.
In the summer of 1986, representatives were under pressure to finish drafting the new drug laws before the fall election. In the Subcommittee on Crime, they took their cue in part from a Washington, D.C., narcotics officer who recommended cocaine quantities far below the Drug Enforcement Administration's definition of a high-level trafficker. The Senate, in its version of the law, reduced those amounts even further.
"When we enacted these penalties, we wanted to go after the kingpins," Durbin says. "The goal was to nail the kingpins and to break up these drug cartels. What we've learned is that the laws do not sufficiently separate big-time career offenders from lower-level offenders."
Lobbying groups, academics and even federal judges have sharply criticized mandatory-minimum sentences. Some have proposed eliminating them altogether. The Smarter Sentencing Act, though a step in that direction, is more modest.
While the bill wouldn't eliminate certain mandatory-minimum sentences, it would cut them in half for nonviolent drug offenses. It would expand the federal "safety valve," a law that allows judges to sentence below mandatory minimums for certain low-level drug crimes. It would also, perhaps most importantly, allow federal inmates incarcerated under old mandatory-minimum crack sentences to petition judges for review of their cases, as thousands of others did after the Fair Sentencing Act passed in 2010.
Durbin hopes to get the legislation to the floor of the Senate this year. The conservatives who've joined him are optimistic.
If the Smarter Sentencing Act passes, it will owe its victory, like the Fair Sentencing Act, in large part to the gradual transformation in conservative thought regarding mandatory minimums and their financial burden.
"The shift is coming from conservatives. Liberals have been talking about this for a little while," says Vikrant Reddy, senior policy adviser for Right on Crime, a conservative criminal-justice-reform group. In the past, he says, "conservatives have been talking about locking them up but throwing away the key."
Now, the Tea Party has ascended and mainline conservatives have started to realign "back to their principles," Reddy says.
"The social conservatives are about redemption and second chances, fiscal conservatives are about spending, and the libertarian conservatives are concerned with the scope of government," he told Al Jazeera. "All these are components we can get behind."
Reddy, who also works for the Center for Effective Justice at the Texas Public Policy Foundation, points to Texas' experience with criminal-justice reform. Rather than fund new prisons to house a growing inmate population, legislators chose to change the system of parole violations and give nonviolent offenders treatment for drug addictions if needed. The approach worked: The crime rate dropped, and instead of opening new prisons, Texas has been closing them down.
Some conservative legislators are hoping to replicate Texas' success on a federal level.
"Our current scheme of mandatory-minimum sentences is irrational and wasteful," Lee, the Utah Republican, said last year, when he announced that he was co-sponsoring the Smarter Sentencing Act. "By targeting particularly egregious mandatory minimums and returning discretion to federal judges in an incremental manner, the Smarter Sentencing Act takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing policies."
The federal budget for prisons has exploded in recent years. The Bureau of Prisons requested $6.9 billion to operate its facilities in 2014, more than a quarter of the Justice Department's entire budget.
Between 1980 and 2012, the number of inmates under the Bureau of Prisons' jurisdiction leaped from around 25,000 to 219,000, according to a 2013 report from the Congressional Research Service. The annual cost of housing an inmate went up from $19,571 in 2000 to $26,094 in 2011.
That year, the federal prison system was reported to be 39 percent over capacity. In medium- and high-security male prisons, facilities were operating at more than 50 percent over capacity.
Almost half of the federal prison population is made up of people serving time for drug offenses. Reducing those numbers, the report found, would help address many of these budget issues. Modifying mandatory-minimum penalties was one way to redress rates. Reducing the numbers is an objective that, for the moment, seems to have united libertarians, fiscal conservatives and social liberals.
The Smarter Sentencing Act also enjoys support from religious and civil-rights groups. The Leadership Conference on Civil and Human Rights wrote in December that the importance of the bill "cannot be overstated."
In the final days before the House of Representatives finished the Anti-Drug Abuse Act, lawmakers decided to create new mandatory minimum crack penalties. The sentences that would haunt federal courtrooms for years to come were born around a committee table, with no hearings, and based on the advice of a perjurer.
In 1980, people convicted of drug crimes made up a fourth of the federal prison population. After the Anti-Drug Abuse Act passed in 1986, that percentage doubled.
Half of federal prisoners are drug offenders
Source: The Sentencing Project, "Trends in U.S. Corrections," Sourcebook of Criminal Justica Statistics Online.
Right on Crime, launched in 2010 by the Texas Public Policy Foundation, has attracted endorsements from Republican name brands, including former Speaker of the House Newt Gingrich and Edwin Meese III, who served as attorney general under Reagan.
"I think it is this growing sense that we're not using our criminal-justice dollars wisely, that locking up people and throwing away the key isn't helping prevent recidivism," says Mary Price, general counsel for Families Against Mandatory Minimums.
Cultural shifts aside, Durbin and the other sponsors of the Smarter Sentencing Act still face determined opposition from some quarters, including lawmakers and vocal groups of state and federal prosecutors.
At the Judiciary Committee markup hearing in January, Sessions spoke of his time as a prosecutor in federal court before and after the Anti-Drug Abuse Act. The law "created a certain uniformity in sentencing," he said.
While he considered the Fair Sentencing Act "the first change really of significance that reduced our drug sentences," he also passed on concerns he'd received from federal prosecutors about further reducing mandatory minimums.
"Judges will take this as a signal to reduce, maybe by half, the penalties out there that are occurring," he said.
"I do believe that across-the-board reductions without individual analysis would be wrong. I think it goes too far, and I'm not able to support it at this time."
Sessions' view has found support from the National Association of Assistant United States Attorneys (NAAUSA), a group of federal prosecutors who wrote a letter to the committee condemning the bill.
The "current system works well in preserving public safety, is not broken, and should not be 'fixed,'" the group wrote. The letter argued that mandatory minimums are "an indispensable tool … to secure offender cooperation and dismantle criminal organizations." It said that reductions in prison costs would likely be offset by "governmental and societal costs" caused by releasing "dangerous offenders back to the streets."
How many prosecutors the NAAUSA represents is unclear, and the group declined multiple interview requests, but Sessions said he thought it had "made a series of very important points."
Most advocates of sentencing reform say the Smarter Sentencing Act, and other legislation like it, represents the most comprehensive and achievable fix to the repudiated policies of the drug wars.
Legal appeals seeking to retroactively reduce mandatory minimums under the Fair Sentencing Act have been uniformly rejected by circuit courts, making it unlikely that the Supreme Court will take up the issue. Although the Obama administration has made an unprecedented call for granting clemency to possibly thousands of drug offenders, some worry that effort could become mired in bureaucratic infighting.
Supporters of sentencing reform, while praising the moves on the Hill, are cautious about the final shape the bill will take.
"Who knows what the bill will look like if it makes it down through one of the congressional bodies for a vote or is eventually signed by the president into law," says Vincent Southerland, a senior counsel at the NAACP.
Advocates for the bill may also have to accept the addition of new mandatory-minimum sentences in order to kill the ones they don't like: Sen. Chuck Grassley, an Iowa Republican, has already attached mandatory minimums for sexual assault and funding terrorist groups to the Durbin-Lee bill.
'We didn't keep America safer'
When Cedric Parker addressed Durbin and his colleagues in the spring of 2009 to talk about the fate of his sister, he ended his testimony by quoting the judge who sentenced Jennings to prison.
"[H]ave you been punished? You bet," Judge G. Patrick Murphy said. "Your whole life has been a life of deprivation, misery, whippings, and there is no way to unwind that. But the truth of the matter is, it's not in my hands."
"As I told you, Congress has determined that the best way to handle people who are troublesome is we just lock them up. Congress passed the laws."
In October 2013, Jennings died of leukemia.
"She suffered from cancer," Durbin recalled. "But she spent the last year and a half with her children and I thought to myself, this was not, we didn't keep America safer by keeping her in prison. This was an excessive sentence."
Al Jazeera America Senior Staff Writer Alia Malek and Staff Writer Evan Hill contributed reporting to this story.
'Cocaine True, Cocaine Blue'
Renowned documentary photographer Eugene Richards bore witness to the ravages of the crack epidemic that gripped the Northeast in the 1980s. His book, Cocaine True, Cocaine Blue, documented the brutal realities facing communities affected by the drug. "The purpose of Cocaine True, Cocaine Blue," writes Dr. Stephen W. Nicholas in the book's epilogue, "is not to define a national agenda, but, rather, to force a national dialogue." Richards spoke to Al Jazeera about the lives he saw destroyed while walking the streets of New York and Philadelphia.
Shadow of an 'epidemic'
MOUNT VERNON, N.Y. — Dawn never feels the urge unless she's drinking. "But it's hard to stay away from alcohol. It's everywhere. And it's legal."
"Alcohol mellows me out. Then I go into this mode where I gotta call so-and-so. 'Let me see if so-and-so got something.' It's just automatic," she explains, sitting in her cozy apartment decorated with family photos and greeting cards, on an unremarkable suburban street.
That "something" is crack cocaine, Dawn's drug of choice for the past 30 years. A few Saturdays ago, she called a dealer to buy $20 worth.
She smoked the cooked amalgam of powder cocaine, baking soda and water through a pipe of her own invention, made of perforated foil and a plastic pill bottle. Her neighbor brought his own supply, and they got high until sunrise — a feeling she describes as "Beam me up, Scotty!"
"Drugs have always been in my life," says Dawn, 48, a petite, forthright woman who asked that her last name not be used. "My mother was a heroin user until I was about 27 years old. Sometimes she'd come out of the room and you'd see the needle still in her hand."
In the throes of her own addiction, Dawn flunked out of high school, lost jobs and housing, traded sex for drugs, contracted HIV and did time for stabbing her boyfriend's mistress. Life today is stable by comparison: She's in good health and volunteers with local AIDS and drug-policy organizations. She smokes crack once or twice a week — more than she'd like — but feels the habit is under control.
Of all the illicit drugs in America, crack is perhaps the most notorious. Yet most Americans know little about its history and pharmacology, its relationship to powder cocaine or who the average user really is. This gap between perception and reality has had real-life consequences, especially when it comes to jail time.
Crack stands for the chaos and violence of the black inner city, inspiring fear. It provoked the drug war's first incursion: the Anti-Drug Abuse Act of 1986, which mandated a five-year minimum sentence for possessing either five grams of crack or 500 grams of powder. This disparity masked the chemical identity of these substances, divergent only in reputation and in the speed and duration of their highs.
What was the 'crack epidemic?'
In the late 1970s and early '80s, cocaine was the drug du jour. About 6 percent of Americans were using it at least once a year — for recreation or escape, depending on their needs.
Powder cocaine was seemingly confined to dance clubs, cocktail bars and yuppie condominiums. Snorting lines of coke — priced around $100 per gram in 1979 — was youthful recreation, no more lethal than whiskey or cigarettes.
Crack cocaine, on the other hand, was seen as an epidemic. The word "crack" still conjures a film reel of drug dens, murderous dealers and hollow-eyed waifs selling their bodies for a $5 rock. A 1991 congressional study on the health effects of this "epidemic" warned that casual use was impossible: "The craving for crack ultimately may become more important than anything else in the user's life."
In black communities, ravaged by mass unemployment and growing inequality, crack cocaine was a symptom of desperate times. The down-and-out grew addicted to its cheap, instant high, overwhelming emergency rooms; armed gangs set up competitive franchises and child welfare cases surged.
Congresswoman Karen Bass, who was a nurse in 1980s Los Angeles, saw crack as a health crisis and tried unsuccessfully to prevent a harsh criminal-law response. Yet she wrestled the tough-on-crime camp as much as traditional progressives who, fearing a punitive war on drugs, "refused to recognize it was a really serious problem that was impacting communities," she says.
"If you would've had a public health epidemic in an affluent area, it would've never crossed people's minds to incarcerate. It would've been, 'Let's bring in treatment and services.'"
According to Dr. Carl Hart, a Columbia University neuroscientist, it was easier for the government to penalize crack than alleviate poverty. In Miami, where he grew up, drug use was an effect, not a cause, of the era's social ills.
"In the 1980s, under President Reagan, we had the highest unemployment and murder rates," Hart says. Child abandonment and broken family bonds preceded crack addiction.
For two decades, Hart has tried to understand the behaviors and decision-making processes of drug addicts. He and his colleagues at the Substance Use Research Center have run experiments with frequent users of cocaine and methamphetamine, among other drugs, and concluded that addicts can and do make rational choices. Their findings challenge the idea that users are dangerous and feral, and must be incarcerated.
It is possible, Hart says, to use drugs in a safe, informed manner. What's more concerning is the law-enforcement response.
"Drug effects are predictable. Police officers are not."
Who uses crack today?
Like anything else, drugs go through trends. While 2.2 percent of the population in 1982 claimed to use crack on a regular basis (defined as having used within the past month), only 0.6 percent used any form of cocaine regularly in 2012, according to the Substance Abuse and Mental Health Services Administration (SAMHSA).
Marijuana is consumed at roughly 30 times the rate of cocaine, but in 2011, cocaine was mentioned in 40 percent of all emergency room visits involving illicit drugs. (Many more visits were prompted by prescription drug abuse.) Between 1995 and 2002, emergency facilities saw a 47 percent increase in cocaine-related visits, and the rate has nearly doubled since then.
Bad health outcomes could be mitigated through a focus on public education - advertising the risks of "polysubstance abuse" and tainted batches — rather than aggressive criminalization. "Drugs are not going anywhere. So the question is how to work with users and fight their demonization," says Robert Suarez, advocacy liaison for the harm-reduction organization Washington Heights Corner Project and community leader at the advocacy group VOCAL-NY.
Suarez, 51, is a career stonemason who spent years battling drug addiction. He remembers trying crack for the first time in 1983, when it was "available 24 hours a day, in a $5, $2, $1 piece." Suarez sold small amounts of drugs and fell out with his family, but neither jail time nor treatment programs did him any good. Only harm reduction, focused on peer outreach and safe drug use, helped him "maintain." He now does cocaine very infrequently.
Despite the disproportionate number of black and Latino men incarcerated for crack-related offenses, in 2011 the average cocaine user visiting the emergency room was a white male between the ages of 45 and 55. At the age of initial use — based on data gathered from high school seniors — African-Americans are less likely to use either crack or powder cocaine than their white and Hispanic peers.
"I thought that people identified as black or African-American would report higher rates of crack use according to the stereotypes I'd always heard. But that wasn't the case," says Joseph Palamar, a research scientist at the NYU School of Medicine who co-wrote an analysis of the high school survey data.
"I should have known," his partner in the study, Danielle Ompad, adds. "With most health issues, drugs in particular, our conceptualization of who a user is may be defined by a certain period of time."
Indeed, just as crack came of age as a 1980s street drug alchemized from high-end powder, methamphetamine — once considered an urban, gay party drug — now carries a rural, "white trash" stigma. Toothless, caricatured "meth heads" have displaced crack addicts as the drug villains of today, says Hart, the Columbia neuroscientist. Yet he points out that meth is widely consumed by the middle and upper classes, in its pharmaceutical form of Adderall.
Until 10 years ago, Dawn looked the part of a stereotypical crack user. In an old photo taken at a backyard family barbecue, she's swaddled in a thick blanket and propped up on a lounge chair, her flesh wasted from HIV and addiction. Another picture from the same gathering shows her sister crying on their stepfather's shoulder. "She was afraid it'd be my last party," Dawn says.
Drug use is a matter of degree. People wear their habits differently, she says, and those with set notions about the war on drugs "don't know what they're talking about."
"You're looking at a crackhead and don't even know it. I'm not living that life like I used to, when I was running the streets. Look around — I don't look like I'm smoking crack."
Edited by: Alessandra Bastagli, Rhyne Piggott, Caroline Preston, Mark Rykoff & Vaughn Wallace
Produced by: Joanna S. Kao, Michael Keller, Dave Mayers, Steve Melendez, Alex Newman & Lam Thuy Vo
Opening image: Steve Starr/Corbis
Opening image of Andre Badley: Courtesy Carolyn Badley-Pinson
Correction: An earlier version of the graphics showing amounts of crack and powder cocaine and the related sentences was incorrect.