Black offenders face stiffest drug sentences
Alden K. Loury
Both Clyde Moses and Paul Jones have used drugs for more than 20 years. At the height of his addiction, Moses used eight or nine bags of heroin a day. At his worst, Jones swallowed two heroin packets to avoid being arrested.
Both men have been arrested for possession of heroin. Both have been convicted. One is black, the other is white. But only one of them served prison time.
Moses, a 41-year-old African American man from Chicago’s West Side, was sent to prison after being caught with drugs while on probation. Jones, a 35-year-old white man from a northwest suburb who asked that his real name not be used, received probation after four convictions–the last two while on probation.
“‘Damn white boys always get off,”‘ Jones recalled that some black detainees at Cook County Jail once told him. But he added, “I don’t know if it’s true. What can you do? I got to take what I can get.”
What happened to Moses and Jones appears to have happened to thousands of other people in Cook County. Statistics show whites often get less severe penalties than blacks and Latinos for the same drug crimes, according to an analysis of six years of court records by The Chicago Reporter.
Upon learning of the Reporter’s findings, the Illinois House of Representatives’ Judiciary II Criminal Law Committee scheduled a Dec. 21 hearing to discuss the disparities. More talks are planned for 2002. And the data prompted the Cook County State’s Attorney’s Office to conduct its own review of drug sentencing data.
The Reporter reviewed records, obtained from the Circuit Court of Cook County for 110,219 cases from 1995 through 2000 with individuals facing only drug possession or delivery charges.
During that six-year period, the courts convicted and sentenced defendants in more than 63,000 cases. Forty-six percent of black defendants were sentenced to prison, 30 percent of Latinos and 20 percent of whites.
The Reporter also found:
* Blacks and Latinos with multiple drug convictions or prison records received harsher penalties than whites with similar criminal histories.
* Whites with three or more drug convictions were sentenced to probation more often than prison, while blacks and Latinos went to prison more often.
* For all but the most severe offenses, whites were most likely to be convicted, but least likely to be sentenced to prison.
* Whites are three times as likely as blacks to receive a special probation that allows a charge to be expunged if the probation was successfully completed. Latinos were twice as likely as blacks.
* Blacks were more likely to be charged with more serious offenses than Latinos and whites.
“This contributes to much of the perception that the war on drugs has been a war on the people of color’s drug use,” said Marc Mauer, assistant director at the Sentencing Project, a research and advocacy organization based in Washington, D.C., that examines criminal justice policy.
His 1995 study found that blacks accounted for 35 percent of drug arrests nationwide but 74 percent of those sentenced to prison for drug possession charges. In Chicago, police and court records show that in 2000, blacks accounted for 79 percent of the drug arrests but 93 percent of those sentenced to prison for charges stemming from those arrests, according to a Reporter analysis.
“The numbers are very disturbing. You’re not finding a couple of percentage point differences, even controlling for the prior record,” Mauer said. “This puts the burden on the courts and prosecutors to explain the results.”
After reviewing the Reporter’s analysis, Cook County officials said they would further investigate racial disparities in sentencing, but would not give details or a timeline.
“The Reporter study has revealed statistics that bear further scrutiny,” Cook County State’s Attorney Richard A. Devine said in a written statement.
He continued: “The prosecutors’ role in the sentencing procedure is an important one, but the final decision is made by a judge based on the evidence in the case and the record of the defendant. It might be helpful to have a more in-depth study of the underlying criminal records and case evidence that dictated sentencings that were meted out in the Reporter study.”
Such a study would require reviewing the criminal histories of all the nearly 92,000 defendants included in the Reporter’s analysis since they entered the criminal judicial system.
Cook County Circuit Court Chief Judge Timothy Evans said he would put together a committee to study the issue. “I believe the issues raised are ripe for a solution that can be collectively embraced if we involve members of the bench, the bar, the civic community and the academic community,” Evans said.
“I want to make sure we move our justice system closer to justice,” he said, “and I will not be satisfied until we do that here in Cook County.”
Cook County Assistant State’s Attorney William O’Brien, chief of the Narcotics Bureau, said disparities are not surprising given the nature of Chicago’s illegal drug trade, which he said is mostly controlled by black and Latino gangs.
For prosecutors, the emphasis is attacking the dealers, O’Brien said, because they also deal in guns and violence. O’Brien added: “Users? We try to get them in some diversionary program like drug school or drug court. One of the ways to attack this is to decrease the demand.”
But Moses said he is an addict, not a criminal, and he should not have been sent to prison.
The only time in the past 26 years Moses was not using drugs was while he was in state prison, he said. Initially, Moses was sentenced to probation for possessing less than one gram of heroin and about the same amount of crack cocaine. But he violated probation.
Jones said he has used drugs ever since he smoked marijuana on weekends when he was 15 years old. He went on to heroin and acid. He was first busted for heroin possession in the mid-1980s, receiving a year of probation. The charge was cleared from his record.
Jones said his employer does not know about his drug record, and he wants to keep it that way.
In the mid-1990s, Jones was convicted three times for heroin possession, less than a gram each time. He has never spent a day in prison. “I guess I got pretty lucky. I got probation on probation on probation.”
Cook County Public Defender Rita Fry said the system has disparities because most judges are white. Among the 45 judges in the county’s criminal division, 10 are black and two are Latino, according to Judge Paul P. Biebel Jr., the division’s presiding judge.
“If they got this little white kid who’s from Uptown who’s out there gang banging and who thinks, he’s ‘all that,’ they’re more inclined to parse that apart to see if underneath all that there’s a kid that can be saved,” Fry said. “So, all of that plays into what you see.”
Judge Wilbur E. Crooks, supervising judge of the county’s three night narcotics courts and an African American, said a judge’s race and background play a role.
“You are the sum total of your experiences in life,” he said. “Every judge is different. Where I might sentence a person on a set of facts, another judge might hear the same set of facts and sentence them to something different.”
All three of the judges who preside over the night drug courts are black, Crooks said. Those courts handle the “overflow” drug cases from the daytime courts, he said.
Crooks said he doesn’t generally view low-level drug offenders as hardened criminals deserving of a prison sentence.
And he’s even given probation to people with previous stints in prison. “You think I’m going to sentence someone to prison for two rocks (of cocaine), just because he got convicted of armed robbery in 1985?”
But the Reporter’s analysis shows there were racial disparities for those in a database of 177,000 current and recently released Illinois prison inmates obtained from the Illinois Department of Corrections.
Nearly 81 percent of blacks and 67 percent of Latinos who had prior convictions were sentenced to prison when they were convicted of drug charges. That compares with 60 percent of whites.
Also, the Reporter analyzed court records from 1995 to 1999. The data showed that, of those who were twice convicted and sentenced to probation each time, 57 percent of blacks were sentenced to prison upon their third or fourth conviction, compared with 25 percent of Latinos and 6 percent of whites.
Economics also play a big role, said Vincent Schiraldi, president of the Justice Policy Institute, a project of the Washington, D.C.-based nonprofit Center on Juvenile and Criminal Justice, which researches alternatives to incarceration. Blacks and Latinos often lack the money and support that might encourage judges to grant them another chance.
“If my kid gets busted, me and my wife are taking the day off and going to court,” said Schiraldi, who is white. “His soccer coach is going to be there, his teacher is going to be there. I’m going to do whatever it takes to keep my kid out of the big house.”
For instance, Jones said he was always able to make a strong case why he shouldn’t go to prison. His parents would often appear in court and speak on his behalf. “They’d do anything to see me get off and start leading a productive life,” he said.
He also hired a private attorney who told the court Jones attended rehab programs, held a steady job and had no history of violence. “I’m working. I’ve got a lawyer. They can see I’m not (someone) that goes out and robs old ladies’ purses,” Jones said. “If I didn’t get high, I’d be a model citizen.”
Richard Kling, a clinical professor of law at Chicago-Kent College of Law who oversees the school’s law clinic, has defended many people–both white and black–facing drug charges. He said sentencing disparities are more a function of class than race.
Many blacks and Latinos facing drug charges do not have the money for a private attorney, Kling said. Most whites, he said, have resources to hire attorneys who will make a case for lesser punishment.
“In fact I’ve had a number of white kids … they will tell me, ‘I’m white. I know I’m going to get probation,”‘ said Kling.
Kling said some judges are also hesitant to send whites to prison.
“I think there’s probably some perception of judges that white guys are not going to do as well in the penitentiary,” he said. “They panic about sending somebody down to the penitentiary on a drug charge and they wind up getting raped or killed.”
Moses was in court with a public defender when he was sentenced. Family members could not get off work or were unable to attend, Moses said. They’ve been frustrated with his drug addiction. “It’s hurting them. They hate to see it.”
Moses didn’t think he got the best representation. He said it seems to him that public defenders, judges and prosecutors work too closely together. “Most of them are friends,” he said.
“They’ll say, ‘Your case isn’t looking good, you should cop out for less time. Plead guilty. Let us stop the whole process,”‘ Moses said of his conversations with his public defenders.
In Cook County Jail, Moses said, inmates refer to public defenders as “penitentiary deliverers.”
Like Moses, Fry said, many poor defendants appear in court with a public defender but no one else outside their immediate family who can vouch for their character.
“You got to have somebody to come in and say ‘Judge, I know this kid in front of you has been charged and convicted but… I think they deserve an opportunity to turn their lives around, that they have a chance to be rehabilitated.’ Well, somebody’s got to say that other than their lawyer, and that’s the hard part,” said Fry.
Leonard Cavise, a professor at DePaul University’s College of Law and a criminal defense attorney who has authored articles on discrimination in jury selection and defendants’ rights, said judges have a role but prosecutors have much more discretion in determining what defendants are ultimately charged with.
“So the judge has very little to do with it,” said Cavise. “Prosecutors make the decision of what they’re going to charge you with. Prosecutors make the decision of what’s going to be an acceptable plea bargain. And prosecutors make the decision of what’s an acceptable sentence.”
O’Brien, of the Narcotics Bureau in the State’s Attorney’s Office, estimated that between 80 and 85 percent of drug cases result in plea bargains. But he disagreed with Cavise’s assessment.
“I think the professor is wrong,” O’Brien responded. “I don’t drag a defense attorney into a plea. They’re coming to me.
“The defendant’s option is to not accept the plea,” O’Brien added.
He said charges are based not on the race of the defendant but upon the evidence. Illinois law dictates what sentences are recommended. But O’Brien added that his office does not track defendants and case outcomes by race.
“To pay attention to the numbers would mean I would have to start paying attention to races and not what they’re charged with,” O’Brien said. “To ignore that or to try to take another course in order to even out numbers or to make it reflective of the racial make-up of the county … is a very poor use of resources.”
But Cavise said defendants are very vulnerable in plea situations, especially poor defendants who can’t make bail. These people, he said, are often faced with a choice of taking a guilty plea for a lesser offense or waiting in jail for a trial and a possible conviction with a much stiffer penalty.
Plea bargains require judges, prosecutors and public defenders to work like “one big happy family,” Cavise added.
“In order to run a courtroom, they have to work together. In order to work together, they have to make deals. In order to make deals, they have to sacrifice one client for another,” he said.
Private defense attorney Bill Hooks said prosecutors and public defenders become like “little brothers” and “little sisters” with the judge to whom they are assigned. “There’s a relationship established that will follow them for the rest of their career,” he said.
Hooks said the problem is compounded when many of those prosecutors and pub. lic defenders become judges themselves.
Cook County Associate Judge Lawrence B. Fox oversees Rehabilitative Alternative Probation, a special court program that gives non-violent, repeat drug offenders a chance for a clear record if they complete 12 to 18 months of drug testing, reporting and monthly court visits.
Fox said while his program is different, in general, the three sides work in concert. Defense attorneys initiate discussions but prosecutors recommend sentencing.
“If they’re recommending a lighter sentence, certainly you’re not going to get any objection from the defense,” said Fox. “So, it’s not like anyone could criticize you as the judge for giving the sentence that the prosecutor is recommending. That’s an easy call.”
Prosecutors might lower the severity of drug charges to reach a plea. Typically, a judge won’t object, he said. “They’re trying to divert these cases out of the mainstream to ease the overburdening of the jail and the system and everything else.”
The Reporter’s analysis shows that whites were far more often charged with the least serious offenses and blacks with the most serious. Some of the most severe felonies carry mandatory sentences of several years in prison and prohibit probation. The most typical of the serious charges–or 25 percent of all cases in the Reporter study–was possession of less than a gram of cocaine with an intent to deliver, a Class 2 felony.
The lowest level drug possession charges are Class 3 and 4 felonies. Between 1995 and 2000, more than 75 percent of whites and 42 percent of blacks were charged with those crimes. The most typical of the less severe charges–or 42 percent of all cases in the Reporter study–was the Class 4 felony possession charge for less than 15 grams of harder drugs such as cocaine and heroin.
O’Brien said this is reflective of the drug trade itself. “In Chicago … gangs virtually control the retail distribution of narcotics. The first gangs to get involved were African American gangs. Hispanics came a little bit later but now they’re starting to move into it.”
He said most drug offenders are busted for possession, but a higher percentage of blacks and Latinos are brought in for possession with intent to deliver, charges that usually carry more severe penalties.
Crooks said some of the disparity comes because charges are automatically bumped up if someone is delivering drugs within a “safe zone” or places where children are likely to gather. “In the black community, there aren’t too many places you can sell dope and not be within 1,000 feet of a church, a school, a park or a play lot,” he said.
Other safe zone legislation has had a disparate impact on minorities. The Reporter revealed in May 2000 that between 1995 and 1999 in Cook County, 99 percent of teens charged and automatically transferred to adult court as a result of the Juvenlie Court Act were African American or Latino.
Fry said prosecutors and defense attorneys often must agree on the terms of probation, especially in the case of the “14-10 probation,” named for the code number in the Illinois statutes, which allows the conviction to be erased if probation is completed successfully.
The Reporter’s analysis shows that 22 percent of whites convicted of drug-only charges in 2000 received 14-10 probation, compared to 15 percent of Latinos and 7 percent of blacks.
U.S. Congressman Danny K. Davis, whose 7th District includes much of the West Side, co-sponsored legislation aimed at reducing the highly-publicized disparate federal sentences for crack and powder cocaine.
“Some suggested that that was a ‘soft on crime’ approach … nothing could be further from the truth,” Davis said.
Mauer of the Sentencing Project said that even though there has been little movement on federal drug sentencing policy, there are encouraging signs that attitudes are changing. He said growing numbers of communities and court systems nationwide have sat down to discuss disparities and consider alternatives to jailing all drug offenders.
Mauer pointed to Bloomington, Ind., where government, law-enforcement and minority community leaders have discussed sentencing disparities.
To start, Mauer suggests that individual communities and court systems learn the scope of the problem. Few studies have explored the issue on a local level, he said. “While it’s a national problem, the resolution needs to come at a local level.”
State Rep. Constance Howard, a Democrat from the South Side Chatham neighborhood, agreed. “At some point in this process there’s got to be a way to ensure Joe Blow citizen that he, in fact, is going to have a fair deal,” said Howard.
The Reporter’s analysis shows, for instance, that blacks, Latinos and whites in Cook County got different types of punishments when convicted for the same types of drug offenses.
For those convicted of Class 4 felonies, which were nearly half of the system’s total drug cases from 1995 to 2000, the courts sentenced 40 percent of blacks, 24 percent of Latinos and 17 percent of whites to prison.
The damage has been done to many young black men, Davis said. “These kinds of numbers reinforce the rationale that many African Americans use to justify their lack of faith and confidence in our judicial system.”
Moses said his stay in prison did not solve his problems nor put a stop to his drug habit. “Young African American males are being railroaded to these prisons,” he said.
“It taught me how to be a little bit smarter a little bit slicker,” he added. “I learned other hustles.”
Moses said he returned home to the West Side neighborhood where he lived with his mother and sister–and where drugs are easy to find. “I tried to walk straight (but) old habits die hard. It came hack to me,” he said. “It’s on every corner. Anywhere you go on the West Side of Chicago, it’s there.”
In fact, Paul Jones was arrested in 1995 for heroin about five blocks from Moses’ house. He was convicted of that charge, and received probation, which included community service.
Jones said many of his suburban friends make regular trips to the West Side to feed their habits. But police officers are almost as common there as drugs, he said. Jones’ last three convictions stemmed from West Side arrests.
“Sometimes it’s like a supermarket out there, but it’s so hot,” he said. “I think they’ve cracked down on it quite a bit.” It can also be dangerous. “I got robbed once,” Jones said. “I came home, got more money and went back. That’s how dope is.”
Moses tells a different story. He worked briefly in both construction and asbestos removal, but has not found a permanent job. Moses said employers give him the cold shoulder once they know of his record. “A lot of employers say they don’t discriminate but they do,” he said. “They tell you to be truthful. But it’s like ‘don’t call us, we’ll call you.’
Jones said he has also found this to be true, which is why he has never revealed his convictions to an employer. “They tell you to be honest, but no way, I don’t buy it,” he said. Jones, a high school graduate who attended college for a year, has held steady jobs his entire adult life. Last year, he made about $50,000, he said.
Moses is seeking help and enrolled in a treatment program in late November. “Man, it is rough,” Moses said, describing his withdrawal symptoms–nausea, hot and cold flashes, vomiting and mood swings. “It’s something I go through every day.”
But he intends to endure. “It’s time for a change. I’m 41 years old and not getting any younger,” Moses said.
Jones said he still uses heroin “once in a while” but believes that he doesn’t have a problem. Drug use is an escape. “I hate the monotony of life. You wake up, go to work, go to bed. It’s my way of having some excitement,” he said. “Some people gamble. Some get prostitutes. Some visit sex sites on the Internet. I’m not that much worse.
“I hate the fact that drugs are illegal,” he said. “I don’t think it (messed) up my life. My trouble was getting busted. I always kept drugs under control.”
Blacks convicted of drug possession or drug delivery were more likely
than whites or Latinos to be sentenced to prison in Cook County between
1995 and 2000–and less likely to get probation.
Prison or Jail Probation Other
Black 49% 45% 7%
Latino 33% 59% 8%
White 22% 70% 7%
Note: Figures only include individuals convicted of drug offenses and
nothing else. ‘Prison or jail’ includes work release. ‘Other’ includes
sentences of boot camp, community service, conditional discharge,
electronic monitoring, restitution, fines, confinement and supervision.
Source: Office of the Clerk of the Circuit Court of Cook County;
analyzed by The Chicago Reporter.
Note: Table made from pie chart
RELATED ARTICLE. On the Cover
Seven of 10 Cook County Boot Camp inmates, who stand at attention during a drill, are drug offenders, according to county officials. They represent a fraction of those in the system: In 2000, the courts sentenced 328 convicted drug offenders to boot camp and another 7,336 to prison. Photo by Richard Stromberg.
Reporter Story Sparks State Hearing
The Illinois House of Representatives set a hearing for Dec. 21 after reviewing The Chicago Reporter’s findings that blacks and Latinos often receive stiffer penalties for the same drug crimes.
The Reporter analyzed a database of more than 110,000 records of drug possession or drug delivery charges filed from 1995 through 2000. The database was compiled by the Circuit Court of Cook County.
Originally, the Reporter called state Rep. Constance Howard, a Democrat from the South Side Chatham neighborhood, for her reaction. Howard sent copies of the Reporter’s analysis to the Illinois Legislative Black Caucus, House Speaker Michael Madigan and state Rep. Mary K. O’Brien of the 75th District, about 60 miles southwest of Chicago, who chairs the House Judiciary II Criminal Law Committee. Madigan and O’Brien subsequentiy called for the hearing.
“I was mad,” was state Rep. Lou Jones’ reaction. Jones represents the 5th district, located in the Dougias neighborhood on Chicago’s South Side. “It’s very frustrating to see things that you saw 40 or 50 years ago.”
Grant announcement: The Chicago Tribune Foundation has granted $25,000 to the Reporter to support its New Media Internships. The grant supports training on the publication’s Web site.
Howard said she was not aware of any legislation that has been proposed in the General Assembly to address sentencing disparities in state courts.
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