Opinion

United States v. Bannister

786 F. Supp. 2d 617
2011 U.S. Dist. LEXIS 57402
2011 WL 1361539

Court: District Court, E.D. New York
Filed: Apr 8, 2011
Status: Published
Author: Weinstein
On the bench: Jack B. Weinstein
Cited by: 13 cases
Authority: More cited than 69.5%

describing the adverse consequences incarceration has on the life of a criminal once released from prison

How later courts described this case

describing the adverse consequences incarceration has on the life of a criminal once released from prison
"Incarceration affects the lives not only of prisoners but of those around them. Families of prisoners face higher rates of divorce, separation, domestic violence, and developmental and behavioral problems among children than the families of non-prisoners."
sentencing nine defendants in a group for internal consistency and reassurance to community
sentencing nine defendants together for internal consistency and reassurance to community

Written by the judges who cited it.

The opinion

Amended Statement of Reasons Pursuant to 18 U.S.C. § 3553 (c)(2)

JACK B. WEINSTEIN, District Judge:

Introduction....................................................................623

I. Facts.....................................................................624

A. Place.................................................................624

1. Bedford-Stuyvesant................................................624

2. Louis Armstrong Houses............................................626

a. Physical Environment...........................................626

b. Residents......................................................627

B. Conspiracy............................................................628

1. Members of Conspiracy.............................................628

2. Investigation of Conspiracy..........................................629

C. History and Sociology..................................................630

1. Roots of African American Segregation and Poverty....................631

a. Segregation and the Civil Rights Movement........................631

b. Urbanization and Unemployment.................................632

2. Government Efforts to Alleviate Poverty and Poor Living Conditions.....633

a. Public Housing.................................................633

b. Welfare Policy .................................................634

*622

3. Economic and Social Conditions of Those in Defendants’ Position.........635

a. Racial Segregation..............................................636

b. Poverty and Unemployment......................................636

c. Health Problems ...............................................638

d. Family Structure...............................................638

e. Undereducation................................................639

f. Social Values...................................................641

g. Prevalence of Crime ............................................642

4. Victims of Crime...................................................644

D. Anti-Drug Abuse Act of 1986 ............................................645

1. Historical Drug Sentencing Laws.....................................645

2. Congressional Awareness of Racial Disparity...........................646

3. Procedural Irregularities in Legislative History........................646

4. Departures from Established Penal Policy.............................647

5. Racially Disparate Impact...........................................648

E. Incarceration Policy....................................................649

1. Mass Incarceration.................................................649

2. Racial Disparity....................................................651

3. Consequences......................................................653

a. Inmates, Families, and Communities..............................653

b. Collateral......................................................653

c. Fiscal.........................................................654

4. Alternatives .......................................................655

a. Generally.................•.....................................655

b. Non-Inearceratory Sentencing...................................656

5. Effectiveness in Reducing Crime.....................................657

a. Rehabilitation..................................................657

b. Incapacitation..................................................659

c. General and Specific Deterrence..................................660

6. Employment and Social Integration of Ex-Prisoners....................661

II.Law......................................................................662

A. Sentencing Rules ......................................................662

B. Equal Protection.......................................................663

1. Mandatory Minimum Sentences......................................663

2. Framework........................................................664

3. Discriminatory Effect...............................................664

4. Discriminatory Purpose.............................................664

5. Conclusion as to Constitutionality.....................................666

C. Rationale.............................................................668

1. General Deterrence.................................................668

2. Specific Deterrence and Rehabilitation................................668

3. Incapacitation......................................................668

4. Retribution........................................................669

III.Application of Law to Defendants ............................................670

A. Excessiveness.........................................................670

B. Individual Defendants..................................................670

1. Damien Bannister..................................................670

a. Background....................................................670

b. Offense........................................................671

c. Sentence ......................................................672

2. Darrell Bannister...................................................672

a. Background....................................................672

b. Offense............................................ 673

c. Sentence ......................................................674

3. Christopher Hall...................................................674

a. Background....................................................674

b. Offense........................................................675

c. Sentence ......................................................675

4. Cyril McCray......................................................676

*623

a. Background....................................................676

b. Offense........................................................677

c. Sentence ......................................................678

5. Roger Patrick......................................................678

a. Background....................................................678

b. Offense........................................................679

c. Sentence ......................................................679

6. Derrick Tatum.................................................'----680

a. Background....................................................680

b. Offense........................................................681

c. Sentence................... 682

7. Jawara Tatum .....................................................682

a. Background....................................................682

b. Offense........................................................685

c. Sentence ......................................................685

8. Pedro Torres ......................................................685

a. Background....................................................685

b. Offense........................................................686

e. Sentence ......................................................687

C. Summary of Sentences Covered in this Memorandum.......................687

TV. Conclusion................................................................688

Introduction

Almost filling the jury box were the defendants — Damien Bannister, Darrell Bannister, Christopher Hall, Cyril McCray, Eric Morris, Roger Patrick, James Ross, Derrick Tatum, Indio Tatum, Jawara Tatum, and Pedro Torres — eleven males, ranging in age from twenty-one to forty-nine, ten African American and one Hispanic. Fully occupying the well of the court were counsel for the defendants, assistant United States attorneys, agents of the Federal Bureau of Investigation, and a phalanx of United States Marshals. Jammed into the gallery were defendants’ anxious mothers, girlfriends, other family members, and friends.

The indictment embraced twenty-three counts connected by a conspiracy to sell, and the selling of, crack cocaine and heroin in the hallways of, and the streets surrounding, a public housing project in Brooklyn between September 2007 and January 2010. Guns were carried. The lives of the residents were made miserable by the attendant depravity and violence. These were serious crimes.

The unspoken questions permeating the courtroom were: How did these eleven come to this pass, and what should be done with them if they were convicted, as all of them eventually were, by guilty pleas? Some of the unsatisfactory answers in such all-too-frequent urban tragedies are discussed in the memorandum that follows.

The issue of what should be done about these defendants, and others like them, is central to the law’s rationale for the heavy mandatory minimum incarceratory sentences being imposed in this case. For a number of the defendants, they are much heavier than are appropriate. One of our most thoughtful jurists reminds us, “[o]ur resources are misspent, our punishments too severe, our sentences too long.” Justice Anthony M. Kennedy, Address at the American Bar Association Annual Meeting, San Francisco, Ca. (Aug. 9, 2003),

available at

http://meetngs.abanet.org/ webupload/commupload/CR209800/ newsletterpubs/Justice_Kennedy_ABA_ Speech_Final.pdf.

See also id.

(“I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In too many cases, mandatory minimum sentences are unwise and unjust.”).

*624

As a group, defendants grew up in dysfunctional homes characterized by a combination of poverty, unemployment, undereducation, crime, addiction to drugs and alcohol, physical and emotional abuse, and the absence of an adult male role model. They attended low-functioning public schools with limited resources to help students with their in- and out-of-school difficulties. Most dropped out of school, habitually abused drugs and alcohol from an early age, and found little lawful employment. They became involved in a gang of illegal narcotics distributors, which turned to guns and violence, contributing to the degradation of their community.

While the defendants are before this court because of choices they themselves have made, the limited options available to them are partly the fixed artifacts of history. Their story begins hundreds of years ago with the enslavement of African Americans. It runs through Reconstruction, Jim Crow, northward migration,

de jure

and

de facto

segregation, decades of neglect, and intermittent improvement efforts by government and others.

Protection of the public requires serious terms of incarceration. But enforcement of the harsh mandatory minimum sentences required by Congress imposes longer terms of imprisonment than are necessary. Such long years of incarceration and separation from relatives generally increase the likelihood of further crime by these defendants and their children.

Nevertheless, strong efforts will be made by the Bureau of Prisons to help educate the defendants and provide occupational training. Drug and alcohol treatment will be made available. Upon their release from prison, the court’s probation service will provide strict, day-to-day supervision and assist in attempts to obtain essential jobs.

I. Facts

A. Place

1. Bedford-Stuyvesant

The conspirators operated in and around Louis Armstrong Houses, a public housing development in the Bedford-Stuyvesant (“Bed-Stuy”) section of Brooklyn. BedStuy is a large neighborhood in northern Brooklyn bound by Flushing Avenue to the North, Broadway and Saratoga Avenue to the East, Atlantic Avenue to the South, and Classon Avenue to the West. Kenneth T. Jackson,

Encyclopedia of New York

94 (1995). It is named for two nineteenth-century communities, Bedford and Stuyvesant Heights. The first Europeans to occupy the area were Dutch settlers who bought the land from Native Americans in the seventeenth century and farmed it with the labor of African slaves. It was home to communities of free Blacks as early as the 1830s. From the nineteenth century through the mid-twentieth century, Bedford and Stuyvesant were populated by a fluctuating mix of Dutch, Germans, Scots, Irish, Jews, Italians, and African Americans.

Id.

In the 1940s the area became known as Bedford-Stuyvesant, and subsequently it became home to a majority African American and Afro-Caribbean population.

See id.

at 94-95 .

Most of Bed-Stay’s housing stock consists of brownstone and brick row houses.

Id.

at 95 . Present also are numerous large housing projects, including some high-rise developments.

See, e.g.,

New York City Hous. Auth.,

NYCHA Housing Developments: Lafayette Gardens,

http:// www.nyc.gov/html/nycha/html/ developments/bklynlafayette.shtml (last visited Mar. 14, 2011) (describing a complex of buildings up to twenty stories tall).

Bed-Stuy is the largest African American neighborhood in New York City. Jackson,

supra,

at 95. It is the northernmost

*625

of several predominantly black neighborhoods in Brooklyn lying east of Flatbush Avenue, which roughly bisects the borough.

See Mapping America: Every City, Every Block,

N.Y. Times, http:// projects.nytimes.com/census/2010/explorer (last visited Mar. 11, 2011)

{‘Mapping America

”) (interactive map indicating racial distribution from 2005 to 2009). Other neighborhoods in this group are Crown Heights, East New York, Brownsville, East Flatbush, Flatlands, and Canarsie.

See id.;

New York City Dep’t of City Planning,

New York: A City of Neighborhoods,

http://www.nyc.gov/html/dcp/html/ neighbor/neigh.shtml (last visited Mar. 20, 2011) (map of New York neighborhoods). Neighborhoods lying west of Flatbush Avenue are primarily White; Hispanics and Asians are distributed throughout the borough.

See Mapping America, supra.

As of the 2000 census, the population of Bed-Stuy was 77 percent African American, non-Hispanic; 18 percent Hispanic; and less than 2 percent White, non-Hispanic. New York City Dep’t of City Planning,

Brooklyn Community District 3

4 (2010),

available at

http://www.nyc.gov/ htmVdcp/pdf/lucds/bk3profile.pdf

{“District Report

”). In recent years, increasing numbers of middle-class residents of various races have moved to Bed-Stuy as pockets have become gentrified. Jeff Coplón,

The Tipping of Jefferson Avenue,

N.Y. Mag., May 21, 2005, http://nymag. com/prinV?/nymetro/realestate/ neighborhoods/features/11775/.

In 2000, 63 percent of Bed-Stuy’s families with children under the age of eighteen were headed by a female with no husband present.

See District Report, supra,

at 5 (reporting 13,783 such households led by females, 1,671 by males, and 6,520 by both parents). Thirty-three percent of the residents were dependent on some form of government assistance in 2000; by 2009, the number had had risen to 45 percent.

Id.

at 1. Employment opportunities in the neighborhood are scarce, due in part to a lack of access to government work force development programs. New York City Dep’t of City Planning,

Community District Needs for the Borough of Brooklyn: Fiscal Year 2011

92 (2011)

(“District

Needs”).

Health problems such as HIV/AIDS, obesity, and asthma plague the neighborhood.

Id.

The infant mortality rate in 2007 was 9.7 deaths per 1,000 births, compared to a national average of 6.75.

District Report, supra,

at 1; Jiaquan Xu, et al., Ctrs. for Disease Control & Prevention,

Deaths: Final Data for 2007,

Natl Vital Stat. Rep., May 20, 2010, at 1,

available at

http://www.cdc.gov/NCHS/data/ nvsr/nvsr58/nvsr58_19.pdf.

Residents of the seventy-ninth police precinct, in which Louis Armstrong Houses is located, live with a high rate of violent crime. “[Y]oung people and residents are menaced by the rise in gang culture and the proliferation of guns that are readily available in [Bed-Stuy’s] public housing complexes.”

District Needs, supra,

at 92. In 2010, there were twelve murders, twenty-nine rapes, 433 robberies, 422 felonious assaults, 408 burglaries, and 119 automobile thefts in the precinct. New York City Police Dep’t,

CompStat: Report Covering the Week 2128/2011 Through 3/6/2011, available at

http://www. nyc.gov/htmVnypd/downloads/pdiycrime_ statisties/cs079pct.pdf.

See also

Al Baker & Janet Roberts,

New York City Crime Dips but Violent Crime Is Up,

N.Y. Times, Nov. 25, 2010, http://www.nytimes.com/2010/ll/ 26/nyregion/26crime.html (reporting that the seventy-ninth was among the three New York City precincts with the highest increases in robbery from 2009 to 2010); Email from Joseph Reek, Inspector, Hous. Bureau, New York City Police Dep’t, Mar.

*626

3, 2011 (on file with court) (“Reek Email”) (reporting three murders, seven rapes, twenty robberies, and seventy-five felonious assaults in Louis Armstrong Houses from 2006 through 2010). Since many crimes in similar areas are unreported because of victims’ fear of reprisal, the actual crime rate in the neighborhood is doubtless even higher.

Cf. The Kerner Report: The 1968 Report of the National Advisory Commission on Civil Disorders

267 (Pantheon 1988) (1968)

(“Kemer Report

”) (“[OJfficial statistics normally greatly understate actual crime rates because the vast majority of crimes are not reported to the police.”).

2. Louis Armstrong Houses

a. Physical Environment

Louis Armstrong Houses is a public development of two complexes of sixteen buildings, each three, four, or six stories high, administered by the New York City Housing Authority (NYCHA). New York City Hous. Auth.,

NYCHA Housing Developments: Armstrong, Louis Houses,

http://www.nyc.gov/html/nycha/html/ developments/bklynarmstrong.shtml (last visited Mar. 14, 2012)

(“Armstrong Home Page

”); Email from Anne-Marie Flatley, Dir., Research & Mgmt. Analysis, NYCHA (Feb. 22, 2011) (on file with court) (“Flatley Email 1”). The development is spread over an eleven-block area in central BedStuy bounded by Clifton Place and Herbert Von King Park to the North, Tompkins Avenue to the East, Gates Avenue to the south, and Bedford Avenue to the West.

See Armstrong Home Page.

The two complexes were built between 1970 and 1974 with funding from the federal government’s Model Cities program under the names “Bedford Stuyvesant Model Cities Area Sites 3-69A” and “Bedford Stuyvesant Model Cities Area Sites 11-14.”

See

Flatley Email 1. Their names were changed to Louis Armstrong I and Louis Armstrong II in 1982.

Id.

Pictured is a portion of Louis Armstrong Houses along Clifton Place between Nostrand and Marcy Avenues.

[[Image here]]

*627

Source: New York City Housing Authority.

The neighborhood is of medium density and appears not to be overcrowded. The low-rise buildings of Louis Armstrong Houses are scattered among substantial brownstone homes and apartment buildings, blended into good existing housing. Small trees are planted in front of the buildings. Nearby, the large Herbert Von King Park and a community garden are well kept and provide the neighborhood with breathing room. Situated in the park are a baseball field, a playground, handball courts, an amphitheater, and a recreational center. New York City Dep’t of Parks & Recreation,

Herbert Von King Park,

http://www.nycgovparks.org/parks/herbert vonkingdiighlights/152 (last visited Mar. 14, 2011). The park, established in 1857, is one of the oldest in Brooklyn. It was originally named for Daniel Tompkins, a vice president of the United States and governor of New York. In 1985, it was renamed to honor a Bed-Stuy community leader.

Id.

Public transportation and local shopping seem acceptable. Streets are clean. Schools, houses of worship, a hospital, and a large outdoor swimming pool are within walking distance.

See

Google Maps, www. maps.google.com, enter “11216” (last visited Mar. 21, 2011) (interactive map displaying the area surrounding Louis Armstrong Houses). Some of Manhattan’s towers are visible.

The project is generally well-maintained, although there is a broken cement stanchion eliminating one basket in the backyard basketball court. The large concrete play area behind the houses on Clifton Place lacks benches or vegetation.

The aesthetics of the buildings bespeak poverty. Corridors and stairwells are narrow, lined with painted cement blocks and cheap metal railings. Entrances to the apartments and the buildings appear much like those for prison cells.

All in all, children in an integrated, well-motivated, and disciplined family could experience a good childhood here, not much different from those of millions of New Yorkers who lead stable, productive lives. These defendants did not, however, grow up in such families. It was the dangers and impoverishment of their families and peers, combined with the bleak economic prospects facing their community, to which their difficulties can be traced.

b. Residents

Housed in Louis Armstrong Houses are 2,150 residents in 617 apartments. Armstrong Home Page,

supra.

Seventy-six percent are African American, 17 percent are Hispanic, and 5 percent are White.

See

NYCHA,

Armstrong I Data Sheet

(Jan. 1, 2010)

(“Armstrong I Data

”); NY-CHA,

Armstrong II Data Sheet

(Jan. 1, 2010)

(“Armstrong II Data”).

The average household earns a gross income of $28,251 and pays $419 per month in rent.

See id.

Half of all families receive income from employment. Email from Anne-Marie Flatley, Director, Research & Mgmt. Analysis, NYCHA (Mar. 1, 2011) (on file with the court) (“Flatley Email 2”). Seventeen percent receive income from welfare, and 8 percent are listed as receiving “full welfare” benefits.

See Armstrong I Data, supra; Armstrong II Data, supra.

The rest are supported from Social Security benefits, Supplemental Security Income (disability payments), pensions, or other sources. Flatley Email 2.

Data from the 2000 census indicate a high rate of joblessness and poverty and low rates of education in the Louis Armstrong Houses area. The official unemployment rate for residents aged sixteen and over “in the labor force” was 20 per

*628

cent.

See District Report

at 17 (reporting 2000 census data for census tracts 243, 251, 263 and 265);

id.

at 6 (map of 2000 census tracts in Bed-Stuy). Forty-nine percent of residents sixteen and over were not in the labor force.

See id.

Their numbers, combined with those of the officially unemployed, amount to a 59 percent jobless rate.

See id.

Thirty-five percent lived below the poverty line.

See id.

at 13, 15 (reporting data for relevant census tracts). This line is an inexact measurement of need, especially in areas with high living expenses, such as New York City.

See

Carmen Denavas-Walt, et al., United States Census Bureau,

Income, Poverty, and Health Insurance Coverage in the United States: 2009

20 (2010),

available at

http://www.census.gov/prod/2010pubs/p60238.pdf (“The official poverty thresholds developed more than 40 years ago do not take into account rising standards of living ... or geographic differences in the cost of living.”). Forty-one percent of residents at least twenty-five years of age in and around Louis Armstrong Houses have not completed high school.

See District Report

at 15 (reporting data for relevant census tracts). Nine percent have graduated from college.

Id.

Rates of poverty and joblessness are substantially higher, and rates of education lower, in the housing project itself; its residents account for a fraction of the population of the relevant census tracts.

See id.

at 13 (reporting data for relevant census tracts);

Armstrong Home Page, supra.

Rates of poverty and joblessness in the area are likely higher than the 2000 census indicated as a result of the current economic crisis.

See,

e.g., Eckholm,

supra

(reporting that one in seven United States residents lived in poverty in 2009, the highest rate recorded since 1994).

B. Conspiracy

Defendants were members of a drug distribution organization called the Clifton Place Crew (“the crew”). The crew controlled the heroin and crack cocaine trade in part of Louis Armstrong Houses along Clifton Avenue, near the building pictured above. Daily it sold drugs from residences and public spaces in and around the complex. Presentence Investigation Report of Derrick Tatum (“Derrick Tatum PSR”) ¶ 2. The crew membership fluctuated, generally consisting of five to ten men.

Id.

at ¶ 4.

There are no facts in the record concerning the market for illegal drugs in the neighborhood or the identity of those who bought drugs from the crew. There is no indication that they sold to children. No information has been provided concerning the operations of other drug networks with whom the crew may have competed for market share.

1. Members of Conspiracy

Members of the crew came from similar deprived backgrounds. They lacked appropriate male models in their homes, they had an inadequate education, and they grew up in an environment of personal abuse, illegal drugs, and general poverty.

See

Part IV.B,

infra

(detailed histories of defendants in connection with the sentence imposed).

Derrick Tatum established the crew in September 2007. He led it until the arrest of most of its members on January 27, 2010. It was he who selected and supervised conspirators, negotiated major transactions, and determined compensation.

Id.

at ¶¶ 3-7,10.

Indio Tatum, Derrick Tatum’s nephew, joined the conspiracy in late 2007 and was promoted the following summer to serve as Derrick Tatum’s top lieutenant. Presentence Investigation Report of Indio Tatum (“Indio Tatum PSR”) ¶ 7. He obtained

*629

heroin and cocaine powder from wholesale suppliers, processed or “cooked” powder cocaine into crack, distributed drugs to dealers in street-ready packages, and collected revenues.

Id.

at ¶ 5. On occasion, Derrick Tatum performed some of these functions himself. Derrick Tatum PSR ¶ 5. The other nine members of the conspiracy served as street-level dealers, working in shifts. Their dates of involvement in the conspiracy were as follows: Damien Bannister, August 2008-January 2010, Presentence Investigation Report of Damien Bannister (“Damien Bannister PSR”) ¶ 6; Darrell Bannister, July-September 2008, Presentence Investigation Report of Darrell Bannister (“Darrell Bannister PSR”) ¶ 6; Christopher Hall, September 2007-January 2010, Presentence Investigation Report of Christopher Hall (“Hall PSR”) ¶ 6; Cyril McCray, September 2007-January 2010, Presentence Investigation Report of Cyril McCray (“McCray PSR”) ¶ 8; Eric Morris, late 2007-January 2010, Presentence Investigation Report of Eric Morris (“Morris PSR”) ¶ 6; Roger Patrick, August 2008-January 2010, Presentence Investigation Report of Roger Patrick (“Patrick PSR”) ¶ 6; James Ross, June 2008-January 2010, Presentence Investigation Report of James Ross (“Ross PSR”) ¶ 7; Jawara Tatum, September 2009-January 2010, Presentence Investigation Report of Jawara Tatum (“Jawara Tatum PSR”) ¶ 5; and Pedro Torres, August 2008-June 2009, Presentence Investigation Report of Pedro Torres (“Torres PSR”) ¶ 5. Many of the dealers used drugs themselves.

See generally

Part II,

infra.

At least four of them — Cyril McCray, Roger Patrick, Jawara Tatum, and Pedro Torres — lived on Clifton Place near where the crew sold drugs.

See

McCray PSR 2; Patrick PSR 2; Jawara Tatum PSR ¶ 43; Torres PSR 2. Three street-level sellers — Hall, Morris, and Ross — were entrusted occasionally by Derrick and Indio Tatum with picking up bulk quantities of drugs and delivering them to the other dealers, but none of the three held supervisory roles. Hall PSR ¶ 8; Morris PSR ¶ 6; Ross PSR ¶ 7.

Most members of the crew carried or maintained access to guns to defend against robbers and protect their territory from rival drug dealers. Derrick Tatum, Indio Tatum, Hall, McCray, Morris, Ross, and Torres personally possessed guns. Derrick Tatum PSR ¶ 7; Indio Tatum PSR ¶ 10; Hah PSR ¶ 6; McCray PSR ¶6; Morris PSR ¶7; Ross PSR ¶ 7; Pedro Torres PSR ¶ 5. Damien Bannister, Roger Patrick, and Jawara Tatum did not carry guns but had access to those controlled by the conspiracy. Damien Bannister PSR ¶ 5; Patrick PSR ¶ 6; Jawara Tatum PSR ¶ 6. Darrell Bannister neither carried guns nor had access to them. Darrell Bannister PSR ¶ 6. On one occasion, Hall and Torres were involved in a shootout. Hall PSR ¶ 6; Torres PSR ¶ 6.

Members of the crew stored drugs and guns in nearby residences. They moved them frequently to avoid detection and seizure by police on robbers. Derrick Tatum PSR ¶ 5.

2. Investigation of Conspiracy

The New York City Police Department and the Federal Bureau of Investigation jointly investigated the crew from late 2007 to January 2010 using a combination of surveillance, search warrants, and videotaped purchases of drugs and guns. Over seventy-five videotaped purchases were executed, resulting in the seizure of over 100 grams of heroin and 100 grams of crack. Seized from residences linked with the organization were fourteen guns, ammunition, a machete, a police radio scanner, about $15,000 in cash, and about fifteen “G-packs” of heroin (approximately 75 grams).

Id.

at ¶ 3. A G-pack is • a bulk quantity of processed drugs worth about

*630

$1,000 and packaged into retail quantities.

G Pack,

Urban Dictionary, http://www. urban dictionary.com/defme.php?term=g% 20pack (last visited February 23, 2011).

It is estimated that more than 4.5 kilograms of crack and three kilograms of heroin were distributed by the crew over the course of the conspiracy. Derrick Tatum PSR ¶ 9.

Following are notable incidents:

• September 2007: Derrick Tatum founded the crew.

Id.

• October 23, 2007: Police recovered two loaded pistols, 249 glassines of heroin, and $1,190 in cash in a vehicle driven by Cyril McCray. McCray PSR ¶ 6. A glassine is a small envelope or bag made of transparent or semitransparent paper.

See

Webster’s Third New International Dictionary 963 (1993).

• Summer 2008: Indio Tatum was promoted as Derrick Tatum’s top lieutenant.

• August 31, 2008: Indio Tatum and Derrick Tatum sold a loaded .32 caliber pistol to a confidential informant in a videotaped transaction. Derrick Tatum PSR ¶ 7; Indio Tatum PSR ¶ 8.

• September 2008: Christopher Hall and Pedro Torres were involved in a shootout at a location on Clifton Place where members of the crew regularly sold drugs. Hall fired shots. Torres was shot in the leg, and another individual was shot in the leg and chest. It is not known whether Hall was responsible for any injuries. Hall PSR ¶ 6; Torres PSR ¶ 6.

• December 18, 2008: Eric Morris sold a loaded pistol to a confidential informant. Morris PSR ¶ 7.

• February 16, 2009: Police recovered a pistol and ammunition from Morris’s home.

Id.

• June 30, 2009: Police recovered a loaded gun and thirty-five bags of heroin, about two grams’ worth, from an apartment used by Hall. Hall PSR ¶ 6.

• July 9, 2009: Torres was placed in custody after being sentenced for a weapons offense on June 8, 2009. Torres PSR ¶ 22.

• August 9, 2009: Damien Bannister was arrested with forty-eight bags of crack cocaine and ninety glassines of heroin. Damien Bannister PSR 1139-40.

• October 19, 2009: Police recovered a loaded .380 caliber pistol belonging to Indio Tatum from an abandoned vehicle parked on Clifton Place. Indio Tatum PSR ¶ 8.

• January 21, 2010: Damien Bannister was sentenced for the August 9, 2009 drug offense described above. Damien Bannister PSR ¶ 39-40.

• January 26 and 27, 2010: Investigators arrested nine of the eleven defendants in this case.

See, e.g.,

Derrick Tatum PSR ¶ 1. Torres and Damien Bannister were already in custody. Upon arresting Derrick Tatum, investigators recovered approximately $10,000 in cash.

Id.

at ¶ 8.

C. History and Sociology

Because the saga of deprivation, isolation, and crime that characterize life in neighborhoods such as Louis Armstrong Houses is relevant to sentences, the history and sociology of such areas are discussed below.

See

Philip J. Cook & Jens Ludwig,

The Economist’s Guide to Crime Busting,

Wilson Q., Winter 2011, at 62 (“Most of us choose to abstain from crime in part because we have a lot to lose if we

*631

get caught.... The calculus for an unemployed dropout with readily available criminal options and few licit prospects is likely to be quite different”).

1. Roots of African American Segregation and Poverty

a. Segregation and the Civil Rights Movement

The poverty and

de facto

racial segregation in which defendants have lived have their immediate roots in the nineteenth century, as the American South coped with the economic and social transformations wrought by the Civil War, the abolition of slavery, and the gains made by African Americans during Reconstruction. Under the protection of the federal government, the condition of newly freed African Americans improved. Michelle Alexander,

The New Jim Crow: Mass Incarceration in the Age of Colorblindness

29 (2010). Racial oppression returned as the federal government indicated an unwillingness to protect African Americans, troops were withdrawn from southern states, and courts issued decisions validating racial segregation as lawful.

Id.

at 80-35; Lawrence M. Friedman,

A History of American Law

382 (3d ed. 2005)

(“History”)-,

Herbert Hill,

Black Labor and the American Legal System: Race, Work, and the Law

12-14 (1985 Univ. of Wisc. Press) (1977).

The Jim Crow system compelled segregation and oppression of African Americans. In the South they were put to work in quasi-servitude under the sharecropping system. Nicholas Lemann,

The Promised Land: The Great Migration and How It Changed America

6, 18-20 (1991); Friedman,

History, supra,

at 321. They were prohibited from holding many jobs, particularly in the skilled trades, or from joining labor unions. Hill,

supra,

at 12-25. They were forced to live, work, and conduct their daily business under rules of rigid racial separation. Friedman,

History, supra,

at 383-84. Criminal vagrancy laws were enforced, ensuring that African Americans continued to work for the benefit of White employers. Those who were convicted of crimes were forced to work for little or no pay as prisoners — after leased out by white employers. Douglas A. Blackmon,

Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II

7-8 (2008); Alexander,

supra,

at 31. African Americans were further suppressed through a terrorist campaign of lynchings, bombings, and mob violence. Alexander,

supra,

at 30; Lawrence M. Friedman,

Crime and Punishment in American History

187-91 (1993)

(“Crime”). See also

Orlando Patterson,

Black Americans,

Understanding America: The Anatomy of an Exceptional Nation

385 (Peter H. Sehuck & James Q. Wilson, eds., 2008) (describing the Jim Crow period as a “seventy-five year disaster: a vicious system of terror during which some five thousand African Americans were slaughtered, many of them ritually burnt alive”).

The Jim Crow

system

— de

facto

and

de jure

racial segregation and political and civic disenfranchisement — remained intact for over half a century, due in large part to the complicity of the federal government.

See, e.g.,

Michael G. Long,

Marshalling Justice: The Early Civil Rights Letters of Thurgood Marshall

72-73 (2011) (criticism by Thurgood Marshall, in a 1940 letter to President Franklin Roosevelt, of the Federal Housing Administration’s embrace of racially restrictive covenants and its refusal to insure loans to African Americans buying -homes in White areas);

id.

at 74-75 (criticism by Thurgood Marshall, in a 1940 letter to Secretary of the Navy, Frank Knox, complaining of segregation in the United States military).

Jim Crow was dismantled from the 1940s through the 1960s, as courts and

*632

federal lawmakers began to recognize the necessity of meeting widespread demands of African American citizens for equality.

E.g., Shelley v. Kraemer,

334 U.S. 1 , 68 S.Ct. 836 , 92 L.Ed. 1161 (1948) (holding that state court enforcement of racially restrictive covenants violated the Equal Protection Clause). Resisted by citizens of all backgrounds were attempts by segregationists, through both legal and extralegal channels, to enforce demeaning control. By the mid-1960s, with some school desegregation following

Brown v. Board of Education,

347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954), and with the Voting Rights Act and the Civil Rights Act having been passed, the movement for equal legal rights and equal opportunities began to achieve substantial success. Alexander,

supra,

at 35-38;

see generally

Jack Greenberg,

Crusaders in the Courts: Legal Battles of the Civil Rights Movement

2004 (recounting the role of the NAACP Legal Defense Fund in civil rights litigation);

Jack Greenberg, Brown v. Board of Education: Witness to a Landmark Decision

(2004) (chronicling the litigation of Brown).

b. Urbanization and Unemployment

Concurrent with the dismantling of the Jim Crow system was the migration of African Americans from the rural South to urban centers across the United States. Lemann,

supra,

at 6.

See also

Patterson,

supra,

at 381 (“As late as 1940, over a half of the black population was still rural (52.4 percent); within a decade, 62 percent was urban, and by 1960 nearly three in every four”).

African Americans migrated to northern cities in part to escape racial persecution and in part for jobs. Jackson,

supra,

at 113. The decline of the sharecropping system and the advent of chemical herbicides and the mechanical cotton picker had reduced the demand for farm labor in the South. Lemann,

supra,

at 70. Northern cities offered the lure of well-paying industrial jobs.

Id.;

Patterson,

supra,

at 381. During the 1940s and 1950s, the result of this migration was a far higher standard of living in urban areas than African Americans had experienced in the rural South. William Julius Wilson,

When Work Disappears: The World of the New Urban Poor

53-54 (1996).

See also id.

at 26-27 (“The traditional American economy featured rapid growth in productivity and living standards.... In this system plenty of blue-collar jobs were available to workers with little formal education.”).

Economic gains for African Americans in the industrialized North were, however, limited. “[I]n 1939 half of all Negro wage earners in New York were receiving less than $850 per year.” Robert A. Caro,

The Power Broker: Robert Moses and the Fall of New York

491 (Vintage ed. 1975) (1974). “40 percent of New York City’s African American population in 1940 remained on relief or dependent on federal funds for temporary work relief.” Jackson,

supra,

at 114. Despite the need for labor to support the war effort, some factories excluded Black workers entirely.

See id.

Subsequently, unemployment worsened. In the 1950s, the unemployment rate for African Americans in New York City was twice that of Whites.

Id.

In 1965, it was observed that African American unemployment, particularly in northern urban areas, had been at “disaster levels” for thirty-five years, with the exception of the World War II and Korean War years. United States Dep’t of Labor Ofc. of Pol’y Planning & Res.,

The Negro Family: The Case for National Action

20 (photo, reprint 2011) (1965) (emphasis removed).

See also id.

at 26 (“The most conspicuous failure of the American social system in the past 10 years has been its inadequacy in providing jobs for Negro youth. Thus, in January

*633

1965 the unemployment rate for Negro teenagers stood at 29 percent. This problem will now become steadily more serious.”);

Kemer Report, supra,

at 13 (“Between 2 and 2.5 million Negroes — 16 to 20 percent of the total Negro population of all central cities — live in squalor and deprivation in ghetto neighborhoods.”);

id.

(“[D]espite continuing economic growth and declining national unemployment rates, the unemployment rate for Negroes in 1967 was more than double that for whites.”).

Unemployment in large cities was cited by the presidentially appointed Kerner Commission as a primary cause of the wave of rioting in African American neighborhoods in the late 1960s.

Kemer Report, supra,

at 1, 24. Other identified causes of disorder included pervasive discrimination and segregation; the exodus of White residents from inner-city areas and in-migration of African Americans; and the frustration of hopes of advancement that had been raised by the Civil Rights Movement.

Id.

at 10.

Conditions worsened after the 1960s. Just as the promise of work in the industrial north brought African Americans in large numbers to northern cities in the Great Migration, the closing of factories contributed to the partial unraveling of African American communities.

See

Lemann,

supra,

at 201 (“From 1960 to 1994, manufacturing employment increased nationally by 3 per cent but fell in New York, Chicago, Los Angeles, Philadelphia, and Detroit, and later the drop in urban unskilled manufacturing jobs became more precipitous.”); William Julius Wilson,

supra,

at 31 (“The number of employed black males ages 20 to 29 working in manufacturing industries fell dramatically between 1973 and 1987 (from three of every eight to one in five).”).

Much of the new job growth in recent decades has occurred in high-technology fields that are inaccessible to workers with limited education and training.

Id.

at 29. Most jobs for workers with limited skills are not in manufacturing but in the service sector, which hires more women than men.

Id.

at 27. Typically, these jobs are located in suburban or exurban areas far from inner-city neighborhoods, and are sometimes inaccessible by public transportation.

Id.

at 37-41; David Hilfiker,

Urban Injustice: How Ghettos Happen

9 (2002).

See also

Alfonso Castillo,

MTA Plans to Cut Most of LI Bus Routes,

Newsday, Mar. 2, 2011, at 2 (reporting service cuts that would leave certain [low income] neighborhoods with no access to public transportation).

2. Government Efforts to Alleviate Poverty and Poor Living Conditions

a. Public Housing

NYCHA was organized in the 1930s with the hope of “eliminating] the crime, illness, poverty, and moral decay bred by slums[.]” Jackson,

supra,

at 954. The earliest NYCHA housing developments were low-rise buildings provided for families with moderate incomes; the destitute were ineligible. Like the neighborhoods in which they were located, these developments were racially segregated.

Id.

Building of high-rise housing projects began in 1939.

Id.

Under a slogan of “slum clearance,” blocks of low-income housing in old, poorly maintained tenements were razed and replaced with “superblocks” of high-density buildings with small, cheaply constructed apartments. Nicholas Dagen Bloom,

Public Housing that Worked: New York in the Twentieth Century

129-132, 142-43 (2008); Caro,

supra,

at 611; Jackson,

supra,

at 954-55. Tenants, particularly African Americans and Puerto Ricans, were evicted with little notice and little hope of finding decent

*634

housing elsewhere. Caro,

supra,

at 968-976, Jackson,

supra,

at 955. The methods of slum clearance were criticized for uprooting communities and disrupting the fabric of city neighborhoods.

E.g.,

Jane Jacobs,

The Death and Life of Ch"eat American Cities

4, 270-72 (1961).

By the 1960s, after many White, middle-class New Yorkers migrated to suburban areas, housing projects were inhabited mostly by poor African Americans and Hispanics. Jackson,

supra,

at 915;

See also id.

at 344 (“Rhetorically, the war on poverty was made to sound more sweeping than it really was, and so set itself up to seem as if it had ended in defeat when it didn’t vanquish all poverty.”). Government intervention did succeed in making a lasting difference benefiting upwardly mobile, middle-class African Americans. Hilfiker,

supra,

at 76 (“[M]any war on poverty programs were successful by almost any measure.”); Lemann,

supra,

at 201;

id.

at 219 (“The black middle class grew faster during the Great Society period than at any other time in American history.”).

A significant portion of the federal welfare system was overhauled in 1996. AFDC had for years utilized a number of controversial provisions discouraging work or marriage. “Essentially all work income was deducted from [AFDC] benefits, and mothers going to work also lost Medicaid and childcare benefits, making it almost impossible to transition from welfare to work. Since a marriage partner’s income was deducted from benefits, it was better to keep the relationship informal and not get married.” Hilfiker,

supra,

at 88. Under the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), enacted in 1996, AFDC was replaced with a new program — Temporary Assistance for Needy Families (TANF). Eligibility for TANF benefits was made contingent on meeting work and work preparation requirements. Recipients were allowed to receive cash assistance for no more than two to five years over their lifetimes; childless individuals were allowed only three months of food stamps every three years.

Id.

at 88-90. PRWORA appears not to have substantially reduced poverty. Forty percent of families who left the welfare rolls had neither work nor other cash assistance. In a three-city study, 93 percent who were dropped from the welfare rolls due to sanctions remained in poverty.

Id.

at 95-96.

New anti-poverty programs today are targeted at unemployed men. “Many of today’s antipoverty programs focus ... on single mothers and their children. Although men obviously play important roles in these families and their communities, they are often excluded or overlooked by efforts to encourage poor mothers to transition from welfare to work or to improve the life-chances of poor children.” Margery Austin Turner

Lynette A. Rawlings, Urban Inst.,

Overcoming Concentrated Poverty and Isolation: Lessons from Three HUD Demonstration Initiatives

33 (2005).

3. Economic and Social Conditions of Those in Defendants’ Position

The problems associated with poverty, segregation, and lack of jobs for low-income African Americans, particularly males, continue.

*636

a. Racial Segregation

Persistent

defacto

racial segregation remains a fundamental aspect of life for low-income African Americans. “[Although legalized segregation has long been abolished and antiexclusionary laws strictly enforced, the great majority of blacks still live in highly segregated communities.” Patterson,

supra,

at 376.

[Ajlmost 60 percent of blacks would have to move to realize a distribution across neighborhoods that reflected their actual proportion of the population.... Both the level of segregation and the extent to which it is changing vary considerably by region. The highest segregation rates in metropolitan areas are surprisingly in the “liberal” regions of the Northeast and Midwest ... [including] New York[.]

Id.

at 395. Cf.

Kerner Report, supra,

at 13 (stating that in 1960, 86 percent of African Americans would have had to move in order to create an unsegregated population distribution).

To a significant degree, this lack of integration results from the segregated conditions in public housing. William Julius Wilson,

supra,

at 48 (“[P]ublic housing ... has isolated families by race and class for decades, and has therefore contributed to the growing concentration of jobless families in the inner-city ghettos in recent years.”).

b. Poverty and Unemployment

The economic situation of low-income, poorly educated African Americans in defendants’ position has deteriorated in relation to both poor Whites and middle- and upper-class Blacks. Patterson,

supra,

at 392. While the African American middle class has grown substantially over the past decades, a third of African Americans remain in the lowest economic quintile, compared to about 18 percent of Whites.

Id.

at 390-91 (citing 2006 United States Census figures). Income inequality by race is underscored by disparity within the lowest income quintile; the average Black household in this category earns $7,869, compared to $16,440 for White households.

Id.

at 391.

African Americans from inner-city communities who enjoy economic success are likely to leave their neighborhoods for more affluent communities. Elijah Anderson,

Code of the Street: Decency, Violence, and the Moral Life of the Inner City

145 (2000) (“Because of all the vice and crime in the neighborhood, those who can leave tend to do so, isolating the very poor and the working poor even more.”).

Accord

William Julius Wilson,

supra,

at 46.

See also

Lemann,

supra,

at 347 (“The impressive record of black success in America’s cities since the 1960s has been almost entirely bound up with leaving the ghettos rather than improving them[.]”).

Many experts agree that a key cause of poverty among African Americans is unemployment and under-employment. Statistics underestimate unemployment partly because the criminal system and large-scale incarceration result in taking sentenced men like defendants out of the labor market.

The overall rate [of black unemployment and underemployment] has remained twice that of whites from the early 1970s, even while falling to historic lows of under 10 percent in the late 1990s and again in 2006 when it stood at 8.8 percent, compared with the white rate of 3.8 percent. But an increasing proportion of the impoverished are working people who, because of inadequate skills and education, cannot earn enough to rise above the poverty line. And general unemployment rates conceal the exceedingly high youth unemployment rate of 37 percent among young black men.

*637

The true rate ... is even higher because it neglects the substantially lower labor force participation rate among young black men and the astonishingly high proportion of young black men in prison or jail, who are not included in the employment figures.

Patterson,

supra,

at 398.

The blighted hopes of low-income African American families have been exacerbated by the recent economic crisis and its effect on employment. “ ‘The impact is potentially devastating on black families in the city. This has kicked more black families into poverty, families who were clinging to working-class lives.’ ” Ryan Strong & Lore Croghan,

‘Labeled, Judged’ & Can’t Find a Job: Black New Yorkers Hit Hard by Unemployment,

N.Y. Daily News, Dec. 14, 2010, at 4 (quoting Michelle Holder, Cmty. Serv. Soc. of New York).

See also

Erik Eckholm,

Recession Raises Poverty Rate to a 15-Year High,

N.Y. Times, Sept. 16, 2010, http://www.nytimes. eom/2010/09/17/us/17poverty.html (“The share of [United States] residents in poverty climbed to 14.3 percent in 2009, the highest level recorded since 1994. The rise was steepest for children, with one in five affected.”) (citing data from the United States Census Bureau).

Cf.

Hon. Carolyn Maloney, Chair, U.S. Cong. Joint Econ. Comm., 111th Cong.,

Income Equality and the Great Recession

2 (2010),

available at

http://jec.senate.gov/public/? a=Files.Serve&File_id=91975589-257c403b-8093-8f3b584a088c (“Between 1980 and 2008, [the share of total national income accrued by the wealthiest 1 percent of households] rose from 10.0 percent to 21.0 percent, making the United States ... one of the most unequal countries in the world.”).

For African American men living in New York City, the unemployment rate doubled between 2006 and 2009. The 2009 rate was 17.9 percent, compared to 6.3 percent for White men. Strong & Croghan,

supra,

at 4. For African American men aged 16 to 24, the unemployment rate from January 2009 through June 2010 was 33.5 percent, and the labor force participation rate was 38 percent. Steven Greenhouse,

Study Shows Depth of Unemployment for Blacks in New York,

N.Y. Times, Dec. 13, 2010, http://economix. blogs.nytimes.com/2010/12/13/study-showsdepth-of-unemployment-for-blacks-in-new-york/.

See also

Motoko Rich,

New New Jobs as Jobless Rate Rises to 9.8%,

N.Y. Times, Dec. 3, 2010, http://www.nytimes. com/2010/12/04/business/economy/04jobs. html?ref=motokorich (“More than 15 million people are out of work, among them 6.3 million who have been jobless for six months or longer.”).

The cost of joblessness is not merely economic. Its psychological and sociological effects are devastating.

[W]ork is not simply a way to make a living and support one’s family. It also constitutes a framework for daily behavior and patterns of interaction because it imposes disciplines and regularities. Thus, in the absence of regular employment, a person lacks not only a place in which to work and the receipt of regular income but also ... a system of concrete expectations and goals. Regular employment provides the anchor for ... daily life. It determines where you are going to be and when you are going to be there. In the absence of regular employment, life, including family life, becomes less coherent. Persistent unemployment and irregular employment hinder rational planning in daily life, the necessary condition of adaptation to an industrial economy.

William Julius Wilson,

supra,

at 73.

See also id.

at 75 (“The problems associated with the absence of work are most severe

*638

for a jobless family in a low-employment neighborhood because they are more likely to be shared and therefore reinforced by other families in the neighborhood!/]”).

c. Health Problems

Adverse health effects of life in inner-city neighborhoods were memorialized by the Kerner Commission. “The residents of the racial ghetto are significantly less healthy than most other Americans. They suffer from higher mortality rates, higher incidence of major diseases, and lower availability and utilization of medical services. They also experience higher admission rates to mental hospitals.”

Kerner Report, supra,

at 269. This situation is reflected in the instant case among defendants suffering from asthma, depression, trauma, and deep psychological problems.

Racial disparities in health persist. “Infants born to black women are 1.5 to 3 times more likely to die than infants born to women of other races/ethnicities.” Thomas R. Frieden, Director, Ctrs. for Disease Control & Prevention,

Foreword, Morbidity and Mortality Weekly Report: CDC Health Disparities and Inequalities Report,

Jan. 14, 2011, at 1,

available at

http://www.cdc.gov/mmwr/pdf/other/su 6001.pdf. African Americans account for about 45 percent of people diagnosed with HIV in the United States. Ctrs. for Disease Control and Prevention,

HIV among African Americans

1 (2010),

available at

http://www.cdc.gov/hiv/topics/aa/pdflaa.pdf (reporting 2006 data). Blacks also suffer higher rates of heart disease, stroke, high blood pressure, and preventable hospitalizations. Frieden,

supra,

at 1. The asthma rate among African American children is 60 percent higher than the rate for White children. Angela Zimm,

Children Sicker Now than in Past, Harvard Report Says,

Bloomberg, June 26, 2007, http://www. bloomberg.eom/apps/news?pid= newsarchive&sid=a8jD2znv51pU.

Difficulties of life in public housing are closely linked to psychological problems, including depression.

Public housing households are some of the poorest households in the United States, and the concentration of problems that many residents experience in addition to high levels of crime — poor nutrition, obesity, low social capital, illiteracy, racial segregation — have been linked to poor mental health, including high levels of depression and other mental illnesses!/]

Caterina G. Roman

Carly Knight, Urban Inst.,

An Examination of the Social and Physical Environment of Public Housing in Two Chicago Developments in Transition

1 (2010),

available at

http:// www.urban.org/uploadedpdf/412134-chicago-public-housing.pdf.

See also id.

at 22 (“[Economic stressors, which include threats of eviction, not being able to pay bills, or buy food for oneself, [are] associated with depression.”). African Americans are more than four times more likely than Whites to be diagnosed as schizophrenic, apparently due in part to misdiagnosis of depression. Shankar Vedantam,

Racial Disparities Found in Pinpointing Mental Illness,

Wash. Post, June 28, 2005, http:// www.washingtonpost.com/wp-dyn/content/ article/2005/06/27/AR2005062701496.html.

d. Family Structure

A high percentage of African Americans are raised in families headed by single females. “An almost equal number of black families are headed by a single female (44.7 percent) as a married couple (46.5 percent) compared with white families, 82 percent of which are headed by a married couple and only 13 percent by a single woman, or Hispanics, among whom the rates are 71 and 20 percent, respectively.” Patterson,

supra,

at 402.

*639

Much of the decline in family structure can be attributed to unemployment and underemployment. Studies have demonstrated a close correlation between the income of young African American men and their likelihood of being married. William Julius Wilson,

supra,

at 95. “As jobs become scarce for young black men, their success as breadwinners and traditional husbands declines. The notion is that with money comes control of the domestic situation.” Anderson,

supra,

at 175.

See also

Michael C. Lu, et al.,

Where is the F in MCH? Father Involvement in African American Families,

20 Ethnicity

Disease S2-49, S2-49 (2010) (“[C]hildren growing up in father-absent families are at greater risk for various educational or behavioral problems and poorer developmental outcomes, even after controlling for parental education, income and other factors.”); Kenneth W. Griffin, et al.,

Parenting Practices as Predictors of Substance Use, Delinquency, and Aggression Among Urban Minority Youth: Moderating Effects of Family Structure and Gender, 14

Psych,

Addictive Beh. 174, 174 (2000) (“[Rjesearch has shown that youth from single-parent families often have higher rates of problem behaviors including substance use, aggression, school dropout, and teenage pregnancy.”) (citations omitted).

e. Undereducation

African American children remaining in ghetto neighborhoods have demonstrated a marked lack of academic preparation relative to students of other racial groups. Boys lag behind Hispanic students and far behind White students in ways that cannot be explained satisfactorily by poverty alone. Trip Gabriel,

Proficiency of Black Students Is Found to Be Far Lower than Expected,

N.Y. Times, Nov. 9, 2010, at A22 (reporting results from a 2010 study by the Council of the Great City Schools). “Only 12 percent of black fourth-grade boys are proficient in reading, compared with 38 percent of white boys, and only 12 percent of black eighth-grade boys are proficient in math, compared with 44 percent of white boys.”

Id.

It has been suggested that the undereducation of many African American

*640

males may result in part from parenting practices.

Id.

Many African American students attend racially segregated schools. “A half-century after the Court’s decision in Brown, approximately 40% of black and Latino students attended schools with 90-100% minority enrollment, and more than one-in-six black children attended schools made up of 99-100% minority students.” Matthew Scutari, Note,

“The Great Equalizer”: Making Sense of the Supreme Court’s Equal Protection Jurisprudence in American Public Education and Beyond,

97 Geo. L.J. 917 , 920-21 (2009). Racial integration in schools rose through the 1970s but has fallen steadily since 1988.

Id.

at 921 . In New York City, African American students are more likely than White students to attend poorer performing schools.

See

New York City Indep. Budget Ofc.,

Demographics, Performance, Resources: Schools Proposed for Closing Compared with Other Schools

5 (2011),

available at

http://www.ibo.nyc.ny.us/ iboreports/schoolclosingjan2011.pdf (reporting that twenty-five underperforming New York City schools proposed for closing by the New York City Department of Education were 52 percent African American and 3 percent White, while the average city school was 31 percent African American and 14 percent White).

The failures of our school system are demonstrated by our high schools’ unacceptably high dropout rates. In many areas with concentrated populations of low-income families from racial minorities, “up to half of all high school students drop out and up to half of these dropouts are simply idle, neither joining the work force nor seeking further education. Entire communities are thus being shut off from full participation in American society.” Robert Balfanz,

Can the American High School Become an Avenue of Advancement for All?,

19 Future of Children 17, 31 (2009).

Over the past three decades, high schools have shifted toward a universal college preparation curriculum intended to bolster the nation’s sagging performance relative to other countries. Valerie E. Lee

Douglas D. Ready,

U.S. High School Curriculum: Three Phases of Contemporary Research and Reform,

19 Future of Children 135, 142, 144-45 (2009); Balfanz,

supra,

at 25. The move to a college preparatory curriculum has coincided with a decrease in the prevalence of vocational and technical training programs to prepare high school students to enter the skilled trades. Balfanz,

supra,

at 26. Today, fewer than 3 percent of high school students attend vocational or technical schools, and the average student earns only 3.5 credits in vocational coursework.

Id.

A significant campaign to reform urban public schools continues. Numerous initiatives have been pursued: reliance on high-stakes testing to develop data with which to evaluate student progress, school performance, and teacher effectiveness; recruitment of young, highly educated people to become teachers and administrators; de-emphasis of tenure in favor of retention of teachers based on merit; reliance on mathematics and reading, often to the exclusion of science, social studies, physical education, art, and extracurricular activities; longer school days; promotion of parents’ ability to choose schools for their children; creation of quasi-autonomous charter schools, managed and funded to varying degrees by corporations and nonprofit organizations; contracting of public school teaching and administration to private companies; the closing of “failing” schools and dismissal of their administrators and faculty; and dividing large neighborhood high schools into small schools,

*641

often organized around a theme.

See generally, e.g.,

Diane Ravitch,

The Death and Life of the Great American School System: How Testing and Choice are Undermining Education

(2010).

There is little evidence to date that these initiatives have worked significant salutary effects for children with histories like those of the instant defendants.

See id.

at 225-229; Robert J. Samuelson,

School Reform’s Meager Results,

Wash. Post, Sept. 6, 2010, http://www.washington post.com/wp-dyn/content/article/2010/09/05/ R2010090502817_pf.html (“[N]o one has yet discovered transformative changes in curriculum or pedagogy, especially for inner-city schools, that are ... easily transferable to other schools, where they would predictably produce achievement gains.”); Gabriel,

supra

(quoting Michael Casserly, Council of the Great City Schools) (“ ‘[T]here’s not a lot of research to indicate that [strategies such as opening charter schools, closing underperforming schools, and attempting to boost teacher quality] produce better results.”).

Some school reforms may be jeopardized by reductions in school spending to respond to increasing fiscal pressures.

See

Thomas Kaplan,

As Schools Face Cutbacks, a Debate Over What’s Fair,

N.Y. Times, Feb. 14, 2011, http://www.nytimes. com/2011/02/15/nyregion/15schools.html (quoting Billy Easton, Alliance for Quality Educ.) (“‘The governor’s budget hurts school kids across the board, because the cuts are enormous, and they are much larger in poor districts than rich districtstJ’ ”).

Much school reform is focused on developing advanced skills and increasing college matriculation and graduation rates. Andrew Hacker,

Where Will We Find the Jobs?,

N.Y. Rev. Books, Feb. 24, 2011, http://www.nybooks.com/articles/archives/ 201 l/feb/24/where-will-we-find-jobs/; Lawrence Mishel,

The Overselling of Education,

Am. Prospect, Feb. 28, 2011, http:// www.prospect.org/es/articles?article=the_ overselling_of_education. There is, however, little evidence that a broad increase in college education will foster economic growth or reduce unemployment or income inequality. Mischel,

supra

(“[T]he wages of all college graduates have been flat over the last 10 years, with those for men having markedly declined____ A major increase in the supply of college graduates would ... drive down the wages of all college graduates!.]”);

id.

(“Wage gaps are primarily driven by increased inequalities among workers with similar educations ... rather than by differences across education groups.”).

Many social problems appear to be beyond the reach of educational reforms alone.

Cf.

Joie Tyrell,

Dividing by Three to Multiply Grads,

Newsday, Sept. 27, 2010, at A10 (quoting Prof. Alan Singer, Hofstra Univ.) (“ ‘[School administrators] keep looking for solutions within the schools because no one wants to address the underlying problem of racial isolation and segregation.... There are no miracle solutions____Kids will do better in schools when their lives are better.’ ”). It appears that instead of pursuing reforms focused on preparing children for college, “[t]he key challenge is to provide good jobs[.]” Mishel,

supra.

f. Social Values

In place of steady jobs and the values and satisfactions that those jobs inculcate, low-income African Americans in urban neighborhoods are left with an economic desperation that can lead to antisocial behavior. Anderson,

supra,

at 145. “[W]hen jobs disappear and people are left poor, highly concentrated, and hopeless, the way is paved for the underground economy to become ... an unforgiving way of life organized around a code of

*642

violence and predatory activity.”

Id.

at 325.

A high premium is placed upon self-defense and “respect.” Children are conditioned by their families and friends, perhaps more so than in middle-class and wealthy settings, to assert themselves physically to prevent or avenge perceived insults or abuse.

Id.

at 70-71. Generated among many young people is a constant competition for status and physical dominance acted out on street corners and other gathering places.

Id.

at 76-79. Some young males, particularly those who are engaged in crime, present themselves as ready to confront and fight anyone. This may reflect a sort of fatalism, as those without hopes for a long-term, positive future adopt the view that they must accept whatever misfortune may befall them, even death; the outcome is out of their hands.

Id.

at 136. To such young people, momentary gratification is more reliable than future benefits.

Adverse factors in low-income, urban neighborhoods appear to affect boys and girls differently. “[A] boy is under constant pressure to demonstrate his masculinity in destructive ways (chief among them, joining a gang) and doesn’t have a parent of the same sex around, as girls do.” Lemann,

supra,

at 299.

g. Prevalence of Crime

For many boys, the cumulative result of poverty, racial segregation, antisocial ethics, and fatherlessness is often crime. “Their career ‘choices’ and their major life changes largely result from, and are coextensive with, their background and the disturbed family systems in which they were raised and/or currently reside. Persons who grew up in severely distressed households learned strategies that leave them ill-equipped for conventional society.” Bruce D. Johnson, et ah,

Crack Distribution and Abuse in New York,

11 Crime Prevention Stud. 19, 26 (2000).

Accord

Glenn C. Loury,

Crime, Inequality & Social Justice,

Daedalus, Summer 2010, at 136-37 (“The factors that lead young people to crime — the ‘root causes’ — have long been known: disorganized childhoods, inadequate educations, child abuse, limited employability, delinquent peers. These are factors that also have long been more prevalent among the poor than the middle classes[.]”).

Lack of male parental guidance is a known, significant contributor to crime.

With the father absent and the mother working, many ghetto children spend the bulk of their times on the streets ... of a crime-ridden, violence-prone and poverty-stricken world. The image of success in this world is not that of the “solid citizen,” the responsible husband and father, but rather that of the “hustler” who promotes his own interests by exploiting others. The dope sellers ... are the “successful” men because their earnings far outstrip those [of] men who try to climb the economic ladder in honest ways.

Young people in the ghetto are acutely conscious of a system which appears to offer rewards to those who illegally exploit others, and failure to those who struggle under traditional responsibilities. Under these circumstances, many adopt exploitation and the “hustle” as a way of life____

Kerner Report,

supra,

at 262.

Cf.

Michelle Little & Laurence Steinberg,

Psychosocial Correlates of Adolescent Drug Dealing in the Inner City: Potential Roles of Opportunity, Conventional Commitments, and Maturity,

43 J. Res. in Crime & Delinq. 357, 378 (2006) (“[Adolescents who sold the most drugs were more likely to live in contexts characterized by high physical and social disorder, low parental monitoring, high rates of parental

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substance use and abuse, and high levels of peer deviance. These results highlight the converging influence of broader socioeconomic factors[.]”).

The lure of reliable, easy income through the sale of drugs is particularly appealing to many young people living in poverty. Bruce D. Johnson, et al.,

supra,

at 41. “For many impoverished young black men of the inner city, the opportunity for dealing drugs is literally just outside the door.” Anderson,

supra,

at 114.

See also

Rozanne Marel, et al.,

Drug use Trends in New York City,

in Nat’l Inst, on Drug Abuse,

2 Epidemiological Trends in Drug Abuse: Proceedings of the Community Epidemiology Work Group

180-82 (2006),

available at

http://drugabuse.gov/ PDF/CEWG/Vol2_106.pdf (stating that the street sale of powder cocaine and crack occurs primarily in low-income African American and Hispanic communities, while in other areas drugs are distributed by delivery or from dealers’ homes); Xiaoming Li, et al.,

Exposure to Drug Trafficking Among Urban, Low-Income African American Children and Adolescents,

153 Arch. Pediatrics & Adol. Med. 161, 161 (1999) (reporting estimate that 6 to 9 percent of nine- to fifteen-year-olds in low-income, urban settings are involved in the drug trade). Drug organizations often recruit from networks of trusted family and friends. Bruce D. Johnson, et al.,

supra,

at 32. Young people may also align themselves with gangs in order to avoid ostracism and violence.

At the age of eight or nine, boys ... will begin to receive the attentions of gang recruiters. They are asked to prove their fitness for gang membership by stealing, selling drugs, and ... denouncing the authority of[ ] their mothers ... all of which are signs of their having attained manhood; if they don’t join, they are taunted, provoked, and sometimes beaten.

Lemann,

supra,

at 296 (describing gangs in a Chicago public housing development).

Young people are also lured to drug gangs by the dubious promise of economic gain. “[Mjany young adults who would prefer to avoid drug sales find that such illicit distribution is the only economic activity available to them. Their participation ... is typically a sporadic and intermittent way to earn some limited income.” Bruce D. Johnson, et al.,

supra,

at 41. The primary economic motivation appears to be the hope of attaining the financial rewards enjoyed by upper-level personnel in a drug hierarchy. Steven D. Levitt

Sudhir Alladi Venkatesh,

An Economic Analysis of a Drug-Selling Gang’s Finances,

115 Q.J. Econ. 755, 757 (2000). Many work as street-level sellers of drugs in retail quantities, serving a role roughly equivalent to that of a store clerk. Bruce D. Johnson, et al.,

supra,

at 29. They work part-time for little compensation and often supplement their income by working in low-skilled jobs for legitimate businesses. Levitt & Venkatesh,

supra,

at 771 (stating that rank-and-file members in a Chicago drug gang earned below the minimum wage). In part, this is due to the “minimal skill requirements of the job [of drug dealer] and the presence of a ‘reserve army’ of potential replacements^]”

Id.

at 771. Unable to afford separate residences, rank-and-file members often live with family members.

Id.

The career of a drug dealer is often short. Dealers often cycle in and out of the drug trade and the legitimate job market. John M. Hagedorn,

Homeboys, Dope Fiends, Legits, and New Jacks,

32 Criminology 197, 205 (1994). For those who do not ascend in a gang’s hierarchy, there may be little motivation to remain.

See

Levitt & Venkatesh,

supra,

at 757. Drug

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dealers face a high risk of injury or murder, particularly when rival gangs battle for control of the drug market.

Id.

at 784 (observing that the members of a studied gang who were active in the gang continuously over a four-year period had about a 25 percent chance of death). Because of the lack of legally enforceable contracts or property rights in the trade, violence is often a drug organization’s only recourse to settling disputes.

Id.

at 780.

4. Victims of Crime

The costs of the crimes engaged in by young people in impoverished communities are borne primarily by their neighbors. “[BJlacks are disproportionately

victims

of crime.... Most crime is neighborhood crime; blacks trapped in ghettos are the most vulnerable people in society. Two blacks are likely to fall victim to robbery, vehicle theft, or aggravated assault for every white; the black homicide rate is more than six times as great as the white rate, and has been so for over fifty years.” Friedman,

Crime, supra,

at 379.

See also

Clyde Haberman,

In the Bronx, Looking in the Mirror for Blame, and Solutions, on Gun Violence,

N.Y. Times, Sept. 28, 2010, at A25 (“[I]n [a Bronx neighborhood,] as elsewhere in the city, no one is a greater threat to life and limb for young black and Hispanic men than other young black and Hispanic men.”).

Guns are carried for protection as well as aggression, leading to fatalities when a transient conflict flares suddenly into gunfire. The combination of young men and readily available guns is deadly. “Teenagers with guns, especially rapid-fire assault weapons, increase the danger in these neighborhoods. Adolescents are generally less likely to exercise restraint than mature adults are. Armed with deadly weapons, youngsters are tempted to solve temporary problems in a very permanent fashion.” William Julius Wilson,

supra,

at 60-61.

See also id.

at 61 (“The sharp growth in the number of teenage male homicide victims is directly related to the sudden rise in the number of young male killers.”).

Guns and drug violence contribute to a climate of terror.

[Respondents [to a survey of ghetto residents in Chicago] revealed that the increase in drug trafficking heightened feelings that their neighborhoods had become more dangerous. As a consequence, many residents retreated to the safety of their homes. “More people are dying and being killed,” reported one respondent. “There are many drugs sold here every day. It’s unsafe and you can’t even go out of your house because of being afraid of being shot.” Another stated, “I stay home a lot. Streets are dangerous. Killings are terrible. Drugs make people crazy.” Similar sentiments were voiced by other residents who felt trapped. One put it this way:

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“It’s scary to see these people. I’m afraid to go outside.”

William Julius Wilson,

supra,

at 59-60.

See also

A1 Baker,

Street Stops by the Police Hit a New High,

N.Y. Times, Feb. 22, 2011, http://www.nytimes.com/ 201 l/02/23/nyregion/23stop.html (reporting that 600,601 stops were made by New York City police in 2010, more than in any year since such stops were first counted in 2002). In 2009, guns were discovered in 0.15 percent of all such stops, and 13 percent of stops resulted in arrests. Baker & Rivera,

supra.

D. Anti-Drug Abuse Act of 1986

The Anti-Drug Abuse Act of 1986 (“1986 Act”), by which the penalties bearing on this case were enacted, was passed during an election-year push to respond to what was perceived as a dangerous spread of drugs, particularly crack cocaine. Sentencing provisions concerning crack cocaine have been repeatedly challenged in court on racial disparity grounds and upheld. Amelioration in 2010 by congressional amendment was limited. This punitive scheme is one manifestation of an ongoing pattern of racial disparity in the enactment and enforcement of drug laws continuing to the present.

1. Historical Drug Sentencing Laws

The 1986 Act follows a long tradition of anti-drug laws enacted, at least in part, with discriminatory design. Throughout the twentieth century, drugs have been linked to the racial fears of White Americans. “[Whites in the American] South feared that Negro cocaine users might become oblivious of their prescribed bounds and attack White society.” David Musto,

The American Disease: Origins of Narcotic Control

7 (1973).

Accord

James A. Iniciardi,

The War on Drugs IP. The Continuing Epic of Heroin, Cocaine, Crack, Crime, AIDS, and Public Policy

82, 148 (1992).

If cocaine was a spur to violence against whites in the South, as was generally believed by whites, then reaction against its users made sense. The fear of the cocainized black coincided with the peak of lynchings, legal segregation, and voting laws all designed to remove political and social power from him.... [E]vidence does not suggest that cocaine caused a crime wave [in the early 1900s] but rather that anticipation of black rebellion inspired white alarm. Anecdotes often told of superhuman strength, cun

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ning, and efficiency resulting from cocaine. One of the most terrifying beliefs about cocaine was that it improved pistol marksmanship.... These fantasies characterized white fear, not the reality of cocaine’s effects, and gave one more reason for the repression of blacks.

Musto,

supra,

at 7.

Cf.

Tom Feiling,

Cocaine: How the White Trade Took over the World

29 (2009) (quoting Harry J. Anslinger, first head of the United States Bureau of Narcotics) (“ ‘[R]eefer makes darkies think they’re as good as white men.’ ”).

The extent of cocaine use by African Americans was over-reported in the early twentieth century. Musto,

supra,

at 7. Forgotten today is its popularity in the late nineteenth century as an over-the-counter tonic, addiction cure, hay fever remedy, and soft drink ingredient for the middle and upper classes.

Id.

at 7; Iniciardi,

supra,

at 6-7.

See also id.

(describing the use and promotion of cocaine by Sigmund Freud and Pope Leo XIII,); Musto,

supra

at 7 (discussing the drug’s endorsement by William Hammond, former surgeon general of the United States Army).

Racially motivated prohibition of cocaine a century ago was but one of a series of drug prohibitions in American history prompted in part by fears of and distaste for distinct ethnic or racial minority groups. “Fear that smoking opium facilitated sexual contact between Chinese and white Americans was also a factor in its total prohibition. Chicanos in the Southwest were believed to be incited to violence by smoking marihuana.... Alcohol was associated with immigrants crowding into large and corrupt cities.” Musto,

supra,

at 244-45.

2. Congressional Awareness of Racial Disparity

It should have been anticipated that most of those sentenced under the crack laws would be low-income African Americans. Materials inserted in the congressional record stated that “[m]ost of the dealers [of crack] ... are black or Hispanic.” 132 Cong. Rec. S00000-22 (daily ed. June 17, 1986) (statement of Sen. Lawton Chiles) (quoting Paul Blythe,

Buying Rocks Easy,

Palm Beach Post & Evening Times).

See also id.

(“Haitians also comprise a large number of those selling cocaine rocks, authorities said.... Whites rarely sell the cocaine rocks.”);

id.

(“Less than a block from where unsuspecting white retirees play tennis, bands of young black men push their rocks on passing motorists, interested or not.”); 132 Cong. Rec. S00000-22 (daily ed. June 17, 1986) (statement of Sen. Lawton Chiles) (quoting Paul Blythe,

It’s Cheap, It’s Available and It’s Ravaging Society,

Palm Beach Post & Evening Times) (“Even though sellers usually set up shop in primarily black neighborhoods, their customers tend to be white.”); 132 Cong. Rec. S00000-22 (daily ed. June 17, 1986) (statement of Sen. Law-ton Chiles) (quoting Paul Blythe,

It Takes All Types,

Palm Beach Post

Evening Times) (“Although police said most dealers are black, cocaine rocks are sold in all types of neighborhoods by all types of people.”); 132 Cong. Rec. S7123-01 (daily ed. June 9, 1986) (statement of Sen. Paula Hawkins) (quoting Tom Morganthau, et al.,

Crack and Crime,

Newsweek, June 16, 1986, at 16) (discussing crack house dealers “recruited from poor Haitian and American black kids in New York”);

id.

(quoting Peter McKillop,

An Inferno of Craving, Dealing and Despair,

Newsweek, June 16, 1986, at 18) (describing a “big-shouldered Trinidadian” selling crack).

3. Procedural Irregularities in Legislative History

The Anti-Drug Abuse Act of 1986 was enacted with unusual haste. It was passed without many of the formalities that nor

*647

mally accompany important legislation, such as subcommittee hearings, markups of bills, and amendments passed at the committee level. Testimony of Eric E. Sterling, President, Crim. Justice Pol’y Found., Before U.S. Sent’g Comm’n on Proposed Guideline Amendments for Public Comment 2 (Mar. 22, 1993) (“Sterling Testimony”).

The 1986 Act was expedited through Congress. As a result, its passage left behind a limited legislative record. While many individual members delivered floor statements about the Act, no committee produced a report analyzing the Act’s key provisions.... Apparently because of the heightened concern [arising from media coverage of crack], Congress dispensed with much of the typical deliberative legislative process, including committee hearings.

Of particular relevance to this report, the legislative history does not include any discussion of the 100-to-l powder cocaine/crack cocaine quantity ratio

per se.

U.S. Sent’g Comm’n,

Special Report to Congress

— Cocaine

and Federal Sentencing Policy

117 (1995),

available at

http:// www.usse.gov/Legislative_ancLPublic_ Affairs/Congressional_Testimony_and_ Reports/Drug_Topics/199502_RtC_ Cocaine_SentencingJPolicy/ (“1995 U.S.S.C. Report”). Drug quantities triggering mandatory minimum sentences were determined based on anecdotal evidence, not statistical data. Sterling Testimony at 2-3. There was little input into the process from administrative agencies with relative expertise or from the public.

Id.

4. Departures from Established Penal Policy

The newly adopted mandatory minimum sentences for crack cocaine represented a significant departure from explicitly established policy. Statements by lawmakers indicated that Congress intended that five-year mandatory mínimums be targeted at “middle-level dealers,” while ten-year sentences be given to “kingpins” and “masterminds.”

E.g.,

132 Cong. Rec. S. 13741-01 (Sept. 30, 1986) (statement of Sen. Biden).

By setting the quantity thresholds for crack at five and ten grams, however, the legislation imposed unusually harsh punishment on low-level street dealers. “Five grams of crack cocaine is indicative of a retail or street-level dealer rather than a mid-level dealer.” U.S. Sent’g Comm’n,

Report to the Congress: Cocaine and Federal Sentencing Policy

8 (1997) (“1997 U.S.S.C. Report”) at 5. Because the quantity thresholds were set so low, “[f|ully two-thirds of the Federal crack offenders are street-level dealers compared to 29% of the powder cocaine offenders.” Testimony of Alfred Blumstein, Nat’l Consortium on Violence Res., Before the United States Sentencing Comm’n 5 (Nov. 14, 2006) at 5.

A resulting incongruity was that the mandatory minimum sentences for low-level crack dealers, who manufactured or sold the drug at “the lowest levels of the drug distribution system,” were often harsher than sentences for the higher-level dealers of powder cocaine, the drug from which crack is made. United States Sentencing Comm’n,

Fifteen Years of Sentencing: An Assessment of How Well the Federal Criminal Justice System Is Achieving the Goals of Sentencing Reform

132 (2004) (“2004 U.S. S.C. Report”).

See also id.

(“High penalties for relatively small amounts of crack cocaine appear to be misdirecting federal law enforcement resources away from serious traffickers and kingpins toward street-level retail dealers[.]”). The anomaly has distorted drug sentencing. “This disparity means that a

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major supplier of powder cocaine may receive a shorter sentence than a low-level dealer who buys powder from the supplier but then converts it to crack.”

Kimbrough v. United States, 552

U.S. 85, 95, 128 S.Ct. 558 , 169 L.Ed.2d 481 (2007) (citing 1995 U.S.S.C. Report 193-94).

5. Racially Disparate Impact

Overwhelming data, analyses, and judicial findings support the conclusion of a disparate racial impact in the mandatory minimum sentences for crack cocaine. Although the disparity has somewhat narrowed in the past two decades, it remains stark. In 2009, federal crack offenders were 79 percent African American, 10 percent White, and 10 percent Hispanic.

See

Table A below.

Table A: Race of Those Sentenced for Federal Crack Offenses

_1992 2000 2006 2009

White 3.2% 5.6% 8.8% 9.8%

African

American 91.4% 84.7% 81.8% 79.0%

Hispanic 5.3% 9.0% 8.4% 10,3%

* U.S. Sent’g Comm’n,

Report to Congress: Cocaine and Federal Sentencing Policy,

16 (2007); U.S. Sent’g Comm’n,

Overview of Federal Criminal Cases: Fiscal Year 2009

6 (2010)

(“2009 Fiscal Year

Report”).

Racial disparities exist for powder cocaine offenses as well, but they are less striking. Federal powder offenders were 28 percent African American, 17 percent White, and 53 percent Hispanic.

See

Table B below.

Table B: Race of Those Sentenced for Federal Powder Cocaine Offenses

_1992 2000 2006 2009

White 32.3% 17.8% 14.3% 17.1%

African

American 27.2% 30.5% 27.0% 28.0%

Hispanic 39.8% 50.8% 57.5% 53.2%

* Id.

The racial disparity in sentencing bears no apparent relationship to the race of the consumers whose demand for drugs drives their distribution.

While 65% of the persons who have used crack are white, in 1993 they represented only 4% of the federal offenders convicted of trafficking in crack. Eighty-eight percent of such defendants were black. During the first 18 months of [Federal Sentencing Guidelines] implementation, the sentencing disparity between black and white defendants grew from preguideline levels: Blacks on average received sentences over 40% longer than whites.... The Sentencing Commission acknowledges that the heightened crack penalties are a “primary cause of the growing disparity between sentences for Black and White federal defendants.”

United States v. Armstrong,

517 U.S. 456, 479-80 , 116 S.Ct. 1480 , 134 L.Ed.2d 687 (1996) (Stevens, J., dissenting) (citations omitted).

See also

1997 U.S.S.C. Report,

supra,

at 8. (“[N]early 90 percent of the offenders convicted in federal court for crack cocaine distribution are African-American while the majority of crack cocaine users is white.”).

Invidious racial disparity in crack cocaine sentences has made a substantial contribution to the racial disparity in incarceration generally. “This one sentencing rule contributes more to the differences in average sentencing between African-Americans and White offenders than any possible effect of discrimination.” 2005 U.S.S.C. Report 132.

See also

Douglas C. McDonald & Kenneth E. Carlson,

Why Did Racial/Ethnic Sentencing Differences in Federal District Courts Grow Larger under the Guidelines?,

6 Fed. Sent’g Rep. 223, 225 (1994) (stating that the crack sentencing ratio is the primary reason that African

*649

American offenders’ average prison sentences are longer than those of White offenders).

Based upon their experience and the statistics, courts have observed “[t]he overwhelmingly disparate impact that crack cocaine sentences have had on young black men in America.”

United States v. Wideman,

No. 05-10357, 187 Fed.Appx. 758, 760 (9th Cir.2006).

See also

Hon. William K. Sessions III,

At the Crossroads of the Three Branches: The U.S. Sentencing Commission’s Attempts to Achieve Sentencing Reforms in the Midst of Inter-Branch Power Struggles

3 (forthcoming 2011 from J.L. & Pol’y),

available at

http:// papers.ssrn.com/sol3/papers.cfm?abstract_ id=1773045 (stating that the federal prison population increased 76 percent between 1999 and 2010 resulting in a 37 percent overcapacity). In state prisons, the number of annual prison admissions increased 18 percent between 2000 and 2008. Linh Vuong, et al.,

The Extravagance of Imprisonment Revisited,

Judicature, Sept.-Oct.2010, at 71.

From 1925 to 1973, about 110 people were incarcerated in the United States for every 100,000 members of the population. Joan Petersilia,

When Prisoners Come Home: Parole and Prisoner Reentry

21 (2003). The rate increased dramatically beginning in the 1970s, as lawmakers and courts responded to high crime rates and

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the seeming failure of rehabilitative measures by relying on lengthy sentencing as the primary tool to deter crime and incapacitate criminals.

Id,.;

Perkinson,

supra,

at 331-39; James Austin, et al., JFA Inst.,

Unlocking America: Why and How to Reduce America’s Prison Population

4 (2007). “From 1980 to 2008, the U.S. incarceration rate climbed from 221 to 762 per 100,000. In the previous five decades ... [it] had been stable at around 100 per 100,000.” Bruce Western & Becky Pettit,

Incarceration and Social Inequality,

Daedalus, Summer 2010, at 9.

See also

Perkinson,

supra,

at 6 (“Between 1965 and 2000, the U.S. prison population swelled by 600 percent[.]”).

The high United States incarceration rate is unparalleled internationally. Our national prison population of 1.6 million people is the world’s largest — larger even than that of China, an authoritarian nation with three times our population.

See

James Austin,

supra,

at 3. The national rate of incarceration, 737 per 100,000 persons, exceeds that of Russia, which imprisons 581 per 100,000.

Id.

This rate is far higher than those of peer nations with democratic, market-based economies. Such countries incarcerate between 63 and 196 people per 100,000, Nicola Lacey,

American Imprisonment in Comparative Perspective,

Daedalus, Summer 2010, at 103, a rate comparable to that of the United States for much of the twentieth century. Among our peer nations, the second-highest rate is found in New Zealand, which incarcerates 196 per 100,000 people.

Id.

The increased prison population is due in large part to longer sentences.

For the same crimes, American prisoners receive sentences twice as long as English prisoners, three times as long as Canadian prisoners, four times as long as Dutch prisoners, five to 10 times as long as French prisoners, and five times as long as Swedish prisoners. Yet these countries’ rates of violent crime are lower than ours, and their rates of property crime are comparable.

James Austin, supra, at 4.

See also id.

at 3 (stating that between 1990 and 1997, the prison population increased 60 percent even though admissions increased by only 17 percent).

The length of sentences is often a product of mandatory minimum sentencing statutes.

Since 1991, the number of criminal statutes which have mandatory minimum sentences has increased by more than 78%. There are now over 170 provisions which bear mandatory minimum sentences. Twenty-eight percent of the federal criminal cases subject to the sentencing guidelines in 2009 involved statutes that carried mandatory mínimums. That figure increases to 40% of the docket if immigration cases are excluded.

Sessions,

supra,

at 39.

Cf.

Harcourt,

Illusion, supra,

at 198 (“In 2009, one of every eleven state and federal prisoners was serving a sentence of life imprisonment[.]”).

Mandatory minimum sentencing deviated from the common law tradition of granting courts discretion to sentence criminals based on the varying circumstances of their backgrounds and offenses.

See United States v. Polouizzi,

687 F.Supp.2d 133, at 167-86 (EDNY 2010) (discussing wide sentencing discretion afforded to judges and juries at the founding of the Republic). Mandatory minimum sentences have been sharply criticized since at least the 1960s. Am. L. Inst., Model Penal Code: Sentencing § 6.06 rep. note d, at 31-32 (Tentative Draft No. 2, 2011) (not yet adopted) (collecting sources critical of mandatory minimum sentenc

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ing);

id.

§ 6.06 cmt. a, at 19 (“[T]here is no current mechanism in American law more misconceived than mandatory minimum penalty laws.”).

Our emphasis on lengthy sentences began, in part, as a response to the high crime rates of the 1960s and 1970s, when the rehabilitation of criminals and attempt to address the root causes of crime were increasingly seen as futile endeavors.

See, e.g.,

James Q. Wilson,

Lock ’Em Up: And Other Thoughts on Crime,

N.Y. Times Mag., Mar. 9, 1975, at 11 (“Considering that our society is in the grip of a decade-old crime wave ..., it is strange that we should persist in the view that we can find and alleviate the ‘causes’ of crime, that serious criminals can be rehabilitated, ... and that prosecutors and judges have the wisdom to tailor sentences to fit the ‘needs’ of the individual offender.”);

id.

at 46 (“Wicked people exist. Nothing avails but to set them apart from innocent people.”).

While the movement to mass incarceration was prompted largely by concerns with violent crime, much of its focus is on nonviolent activities, particularly drug offenses. In 2008 and 2009, only about 8 percent of federal prisoners were serving time for violent crimes.

See

Heather C. West, et al., Bureau of Justice Stat., U.S. Dep’t of Justice,

Prisoners in 2009

33 (2010),

available at

http://bjs.ojp.usdoj.gov/ content/pub/pdfi'p09.pdf. Over half were incarcerated for drug offenses.

Id.

Convictions for drug offenses are the single most important cause of the explosion in incarceration rates in the United States. Drug offenses alone account for two-thirds of the rise in the federal inmate population and more than half of the rise in state prisoners between 1985 and 2000. Approximately a half-million people are in prison or jail for a drug offense today, compared to an estimated 41,400 in 1980 — an increase of 1,100 percent.

Alexander,

supra,

at 59.

See also

Perkinson,

supra,

at 335 (stating that between 1982 and 1988, the number of federal drug prosecutions increased 99 percent, while nondrug prosecutions increased only 4 percent).

Today’s high incarceration rate bears little relationship to the prevalence of crime. “[T]he crime decline of the 1990s did coincide with a large increase in the prison population. But the large crime

increase

during the preceding period coincided with an even bigger jump in imprisonment, and incarceration rates continued to climb after 2000 even though crime rates were relatively static[.]” Cook

Ludwig,

supra,

at 64 (emphasis in original).

2. Racial Disparity

Excessive incarceration has disproportionately affected African Americans. “Today, a generation after the triumphs of the civil rights movement, African Americans are incarcerated at seven times the rate of whites, nearly double the disparity measured before desegregation.” Perkinson,

supra,

at 3. Racial disparities in investigation, prosecution, and sentencing have long existed in the United States.

[Throughout the twentieth century, both before and after developments in civil rights, blacks have been arrested, convicted, and jailed entirely out of proportion to their share of the population. Southern chain gangs ... were, to all intents and purposes, gangs of black semislaves. [Bjlacks still constitute far more than their share of the prison population; they have done so for decades. Since 1933, the federal government’s

Uniform Crime Reports

have kept track each year of the race of men and women arrested for serious crime. Blacks were arrested at a higher rate than whites even at the start; in 1940, 17 blacks per 1,000 were arrested, and only 6 whites.

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Arrest rates for both races have skyrocketed since 1933, but the gap remains, and it gets if anything wider. The figures for blacks are, indeed, staggering. ... In 1978, 35 whites out of every 1,000 were arrested, and almost 100 out of every 1,000 blacks — nearly one out of ten.

Friedman,

Crime, supra,

at 377-78.

See also

Thorsten Sellin,

The Negro Criminal: A Statistical Note,

140 Ann. Am. Acad. Pol.

Soc. Sci. 52, 59 (1928) (“The Negro is not only convicted more frequently than whites, but he seems to receive the heavier sentences”).

Race-based differences in incarceration continue today.

Other than sheer scale, [the] most salient feature [of prisons in the United States] is the heavy racial and ethnic imbalances among those incarcerated. Roughly 60 percent of the nations’ prisoners are either African American or Hispanic. The current black-male imprisonment rate stands at nearly 7 times the rate for whites, while the Latino rate is 2.5 times the white rate. Today, 1 of every 100 adults is held in prison on any given day, including 1 of every 15 black males between the ages of 20 and 50. The U.S. Justice Department estimated that the lifetime likelihood of serving a state or federal prison term for a white male born in 2001 was 6.6 percent, while for a black male child it was a staggering 32.2 percent.

Am. L. Inst., Model Penal Code: Sentencing xx-xxi (Tentative Draft No. 2, 2011) (not yet adopted).

See also

Patterson,

supra,

at 398-99 (stating that in 2005, 25 percent of the United States prison population was African American men between the ages of twenty and thirty-nine); Western & Petit,

supra,

at 11 (reporting a 68 percent risk of imprisonment for African American male high school dropouts born from 1975 to 1979, versus 28 percent for Whites of the same demographic). If African Americans and Latinos were sentenced at the same frequency at which Whites are sentenced, the American prison population would be cut in half.

See

James Austin,

supra,

at 8. African American men with little schooling are more likely to be incarcerated than employed. Western & Pettit,

supra,

at 12. “The main sources of upward mobility for African American men — namely, military service and a college degree — are significantly less common than a prison record.”

Id.

at 11.

Racial disparity in incarceration is particularly stark with regard to drug crimes. Between 1983 and 1987, African Americans and Whites were incarcerated for such offenses in roughly equal numbers. Petersilia,

supra,

at 29. Between 1983 and 1998, the population of African Americans imprisoned for drug offenses increased twenty-six times, compared to an eighteenfold increase for Hispanics and a sevenfold increase for Whites.

Id.

at 28 (citing Michael Tonry,

Malign Neglect: Race, Crime, and Punishment in America

(1995)). African Americans comprised only 11 to 12 percent of the United States population during this period.

Id.

at 28.

Among those convicted of drug offenses, racial disparities exist in both the likelihood of imprisonment and the length of imprisonment. 2004 U.S.S.C. Report 122 (“The odds of a typical Black drug offender being sentenced to imprisonment are about 20 percent higher than the odds of a typical White offender, while the odds of a Hispanic drug offender are about 40 percent -higher.”);

id.

at 123 (“The typical Black drug trafficker receives a sentence about ten percent longer than a similar White drug trafficker. This translates into a sentence about seven months longer.”).

Cf. id.

at 129 (African Americans

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are less likely than defendants of other races to receive downward departures under the sentencing guidelines).

The disproportionate imprisonment of African Americans far exceeds other statistics related to poverty. “[A]t roughly seven to one, the black-white ratio of male incarceration rates dwarfs the two to one ratio of unemployment rates, the three to one nonmarital child-bearing ratio, the two to one black-white ratio of infant mortality rates, and the one to five ratio of net worth.” Loury,

supra,

at 137.

It has been persuasively argued that the enactment of harsh sentencing schemes has been motivated in part by racial animus.

Empirical research has established that support for highly punitive policies correlates with the tendency to think that Blacks have inherently criminal tendencies. The pattern is consistent at the state level: The size of a state’s Black population is a stronger prediction of the prison population and its propensity to adopt the death penalty than its rate of violent crime.

Doris Marie Provine,

Unequal Under the Law: Race in the War on Drugs

102 (2007) (citations omitted).

3. Consequences

a. Inmates, Families, and Communities

Incarceration affects the lives not only of prisoners but of those around them. Families of prisoners face higher rates of divorce, separation, domestic violence, and developmental and behavioral problems among children than the families of non-prisoners. Western & Pettit,

supra,

at 15. Prisoners’ children may experience numerous consequences of incarceration, including loss of contact with the incarcerated parent, strained relationships with caregivers, a diminished sense of stability and safety, economic insecurity, social stigma, shame, increased risk of drug involvement, and susceptibility to adverse peer pressure and risky behavior.

See generally

Patricia Allard & Judith Greene, Justice Strategies,

Children on the Outside: Voicing the Pain and Human Costs of Parental Incarceration

(2011),

available at

http://www. justicestrategies.org/sites/default/files/ publieations/JS-COIP-l-13-ll.pdf. These children are at “greater risk of diminished life chances and criminal involvement, and at a greater risk of incarceration as a result.” Western & Pettit,

supra,

at 16.

As with incarceration itself, these adverse effects are multiplied when racial disparity is taken into account. In 2008, 11 percent of African American children had lived with a parent being locked up, compared to 1.75 percent of White children.

Id.

at 16. High incarceration affects communities as well. Disadvantaged communities are more likely to send more persons to prison, increasing their likelihood of becoming even more troubled in the future.

See

Robert J. Sampson & Charles Loeffler,

Punishment’s Place: The Local Concentration of Mass Incarceration,

Daedalus, Summer 2010, at 20. “[T]he combination of poverty, unemployment, family disruption, and racial isolation is bound up with high levels of incarceration even when adjusting for the rate of crime that a community experiences.”

Id.

at 21.

b. Collateral

Beyond separating convicts from their families and the work force, incarceration imposes numerous collateral consequences. “In every state and under federal law, there are hundreds of collateral consequences that apply automatically or on a discretionary basis, to people convicted of crimes. Most of these apply for life ... and can never be removed, or can be relieved only through virtually unavailable

*654

methods like a pardon from the President[.]” Gabriel Chin,

The Constitution in 2020 and the Secret Sentence: Rethinking Collateral Consequences,

Balkinization (Sept. 30, 2010), http://balkin.blogspot.com/ 2010/09/constitution-in-2020-andsecret. html (hyperlink omitted).

Consequences imposed by law include “ineligibility for federal welfare benefits, public housing, student loans, and employment opportunities, as well as various forms of civic exclusion, such as ineligibility for jury service and felon disenfranchisement.” Michael Pinard,

Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity,

85 N.Y.U. L. Rev. 457 , 459 (2010). Felon disenfranchisement laws, which have their roots in attempts by Whites to suppress African American votes in the late nineteenth century, bar 13 percent of African American men from casting ballots. Erika Wood, Brennan Center,

Restoring the Right to Vote

6-7 (2d ed. 2009),

available at

http://brennan.3cdn.ne1/5c8532e8l34b 233182_z5m6ibvln.pdf. Ex-convicts’ difficulties in finding work are discussed in detail below.

Other handicaps limit felons’ ability to rehabilitate themselves in more tangible ways. Ineligibility for federal student loans may bar those convicted of drug offenses, even misdemeanors, from attending college or pursuing vocational training after release.

See

Pinard,

supra,

at 514. Drug offenders are ineligible in many states for receipt of federal welfare benefits.

Id.

at 494. Felons are ineligible for receipt of public housing assistance for five years after their release from prison, and private landlords routinely, and lawfully, discriminate against applicants based on criminal history. Alexander,

supra,

at 141 — 42.

The cumulative effect of such adverse consequences is to render an ex-convict a social pariah.

[I]t is legal to discriminate against ex-offenders in ways, it was once legal to discriminate against African Americans. Once you’re labeled a felon depending on the state you’re in, the old forms of discrimination ... are suddenly legal. As a criminal, you have scarcely more rights and arguably less respect than a black man living in Alabama at the height of Jim Crow.”

Michelle Alexander,

The New Jim Crow: How Mass Incarceration Turns People of Color into Permanent Second-Class Citizens,

Am. Prospect (Jan.-Feb.2011), at A19-20. Prior incarceration is a greater predictor of low upward mobility among low-income men than failure to complete high school or very low levels of cognitive ability. Western & Petit,

supra,

at 14-15.

Beyond the direct and indirect consequences of imprisonment, the convict upon reentry must still face those problems that complicated his life before imprisonment but that remain unresolved: poverty; dysfunctional family relationships; addiction to drugs, alcohol, or gambling; and limited education and vocational skills.

c. Fiscal

Mass incarceration imposes serious costs upon the wider society. “As of 2006, the U.S. imprisoned over 1.6 million of its people at a cost of $69 billion, an increase in cost of over six times during the prior quarter century.” Vuong,

supra,

at 70.

See also

Western & Pettit,

supra,

at 18 (reporting the annual cost of imprisonment as $70 billion); Perkinson,

supra,

at 343 (“[B]y 2000, states were spending nearly $40 billion on corrections, one of every fourteen general revenue dollars.”). The average cost of incarcerating an inmate for a year was $22,650 in 2001, the latest year for which national data is available.

*655

Vanessa Gregory,

Indefensible,

Am. Prospect (Jan.-Feb.2011), at All; 'Harcourt,

Illusion, swpra,

at 202.

Carrie Johnson,

Budget Crunch Forces a New Approach to Prisons,

Nat’l Pub. Radio, Feb. 15, 2011, http://www.npr.org/2011/02/15/ 133760412/budget-crunch-forees-a-new-approach-to-prisons (quoting Adam Gelb, Pew Ctr. on the States) (“It costs 23 times as much to have somebody behind the walls as it does in the community[.]”). Expenditures for corrections account for as much as 10 percent of state budgets. Harcourt,

Illusion, supra,

at 199. In Connecticut, Delaware, Michigan, Oregon, and Vermont, more state money is spent on corrections than on higher education.

Id.

(citing 2007 data).

Much of the cost of incarceration is due to the imprisonment of nonviolent offenders. If the number of such inmates were cut in half, taxpayers would be saved an estimated $16.9 billion annually. Valerie Wright, Sentencing Project,

Deterrence in Criminal Justice: Evaluating Certainty v. Severity of Punishment

8 (2010),

available at

http://www.sentencingproject.org/doc/ Deterrence% 20Briefing% 20.pdf.

4. Alternatives

a. Generally

Concerns about strained state budgets and prison overcrowding have prompted lawmakers to reconsider lengthy incarceration as the preferred response to crime. Carrie Johnson,

supra.

Some reforms are designed to eliminate or shorten sentences, often by increasing judicial discretion. Between 2000 and 2002, more than two dozen states implemented sentencing reforms, “eliminating mandatory minimums, accelerating parole, or expanding [prison] alternatives like drug treatment.” Perkinson,

supra,

at 344.

But see

Heather Gillers,

Daniels-Backed Prison Reform is Dealt a Blow by Prosecutors,

Indianapolis Star, Feb. -15, 2011, http://www.indystar. com/fdcp/?1299882692541 (reporting that legislation in- Indiana designed to reduce incarceration due to budgetary pressures was amended at the pressure of state prosecutors to include a provision that would result in longer sentences). A provision that would eliminate all mandatory minimum sentences is included in a draft of the Model Penal Code. Am. L. Inst., Model Penal Code: Sentencing § 6.06(3) (Tentative Draft No. 2, 2011) (not yet adopted) (“The court is not required to impose a minimum term of imprisonment for any offense under this Code.”).

In New York, a recent rescission of the vicious Rockefeller drug laws eliminated mandatory minimum prison sentences for first-time and many second-time nonviolent drug offenders and some drug-related property offenses, such as third-degree burglary. Noeleen G. Walder,

One-Year-Old Reform Saves 1, 000 Drug Offenders from Prison, According to Preliminary Estimates,

N.Y.L.J. (Oct. 14, 2010), at 1. Courts may order drug treatment instead of imprisonment for many drug and property crime offenders, even over the objection of prosecutors.

Id.

Mandatory minimum sentences for certain felonies have been reduced from three years to two. Adrienne Austin,

supra,

at 12 (citing S. 56, 231st Legis. Sess. (N.Y. 2009)).

Numerous states have shortened or eliminated mandatory minimum sentences and allowed greater judicial discretion. Adrienne Austin,

supra,

at 12-13, 15-16 (citing H.B. 210, 142d Gen. Assemb. (Del. 2003) (decreasing mandatory minimum sentences for drug trafficking crimes and increasing the quantity threshold for crack-related offenses from five to ten grams); S.B. 1722, 110th Reg. Sess. (Fla. 2009) (requiring non-prison sentences for certain third-degree felons unless a risk of public endangerment is found); H.B. 1892, S.B. 358 112th Gen. Assemb., 1st Reg.

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Sess. (Ind. 2001) (eliminating mandatory mínimums for certain nonviolent drug offenses, allowing judges to sentence offenders to home detention or work release, providing for drug treatment as an alternative to prison for some offenders, and exempting certain drug offenders from the state’s “three strikes” scheme); H.B. 372, 2009 Reg. Sess. (Ky. 2009) (authorizing time served on parole to be credited toward a total sentence, except for violent offenders, registered sex offenders, or parole violators convicted of new felonies); H.B. 225, 35th Reg. Sess. (La. 2009) (expanding from two to four years the period that a felon may be sentenced to house arrest instead of incarceration); Mich. Pub. Acts 665, 666, 670 of 2002 (eliminating most mandatory minimum sentences for drug offenses and eliminating a separate sentencing scheme for drug offenders); S.F. 802, 1st Reg. Sess. of 86th Leg-is. Sess. (Minn. 2009) (authorizing courts to disregard mandatory minimum sentences for individuals convicted of fifth-degree drug felonies); A.B. 239, 75th Reg. Sess. (Nev. 2009) (limiting “habitual offender” status, which requires a five-year mandatory minimum sentence, to offenders with prior felony convictions); S.B. 1866, 86th Legis. Sess. (N.J. 2009) (authorizing courts to waive or reduce mandatory minimum sentences for drug offenses within 1,000 feet of a school); S.B. 39, Gen. Assemb. (R.I. 2009) (removing mandatory minimum sentences for two categories of drug offenses and reducing maximum sentences from fifty years to twenty years and from life to thirty years); S1154,118th Sess. Gen. Assemb. (S.Car. 2010) (eliminating mandatory minimum sentences for simple drug possession and eliminating a powder/crack sentencing disparity); H.B. 2073, 85th Legis. Assemb. (S.Dak. 2010) (allowing courts to suspend any portion of a sentence); H.B. 2338, 57th Legis., Reg. Sess. (Wash. 2002) (expanding opportunities for drug offenders to receive treatment instead of imprisonment)).

Some states have enacted laws expanding opportunities for inmates, particularly nonviolent ones, to qualify for early release, often based on their successful completion of programs such as training or counseling. Adrienne Austin,

supra,

at 13-15 (citing S.B. 1476, 48th Legis., 2d Reg. Sess. (Ariz. 2008); H.B. 1351, 1st Reg. Sess., 67th Gen. Assemb. (Colo. 2009); S.B. 193, 150th Gen. Assemb., Reg. Sess. (Ga. 2009); S.B. 14, 2007 Sess. (Kan. 2007); S.B. 2136, 2008 Reg. Sess. (Miss. 2008); A.B. 510, Seventy-Fifth Reg. Sess. (Nev. 2007); H.B. 4, 2007 Sess. (Penn. 2008); S.B. 292, 2009-10 Reg. Sess. (Vt. 2009); A.B. 500, 99th Legis. (Wis.2009); S.F. 32, 59th Legis. (Wyo. 2008)).

Cf.

Second Chance Act of 2007, Pub. L. 110-199, § 231 (g), 122 Stat. 657 (providing for a pilot program of home detention of certain elderly offenders who have completed ten years or 75 percent of their prison terms).

In general, reforms reducing the length of prison sentences are not expected to affect deterrence. Wright,

supra,

at 9.

b. Non-incarceratory Sentencing

As prison sentences are reduced or eliminated, non-incarceratory methods of rehabilitation can be used and improved to minimize the risk of recidivism. Systems of probation, parole, and supervised release have proven to be effective when violations are met with swift, consistent, and predictable negative consequences.

See

Mark A.R. Kleiman,

Smarter Punishment, Less Crime,

Am. Prospect, Jan.Feb. 2011, at A5 (discussing a probation enforcement program for drug offenders in Hawaii).

“Problem-solving” or “behavioral” courts may order nonviolent offenders to undergo drug and alcohol treatment, counseling, or

*657

other programs as an alternative to incarceration. In some circumstances, charges are dismissed when a convict has successfully complied with such a regimen. Sasha Abramsky,

May It Please the Court,

Am. Prospect (Jan.-Feb. 2011), at A14. Crucial to post-release programs is job training to equip ex-convicts for lawful work.

See

Adam Serwer,

Permanent Lockdoum,

Am. Prospect (Jan.-Feb. 2011), at A16. Nonincarceratory methods have proven effective when used in a coordinated fashion.

By combining punishment and rigorous court monitoring with essential services like drug treatment, counseling, and job training, problem-solving courts have successfully reengineered how courts respond to societal dysfunction, especially low-level, nonviolent crime. These courts have a demonstrated record of reducing recidivism and forging better outcomes for offenders, victims, and communities.

Hon. Jonathan Lippman,

Chief Judge Judith S. Kaye: A Visionary Third Branch Leader,

84 N.Y.U. L. Rev. 655 , 658 (2009).

But see

Hon. Kevin S. Burke,

Just What Made Drug Courts Successful?,

36 New Eng. J. on Crim. & Civ. Confinement 39, 51 (2010) (arguing that drug courts may coerce defendants, including victims of racial profiling, to accept guilty pleas); Nat’l Assn’ of Crim. Defense Lawyers,

America’s Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform

22-24 (2009), available at http:// wwwl.spa.american.edu/justice/documents/ 2710.pdf (criticizing problem-solving courts’ tendency to direct resources to nonviolent, first-time offenders instead of higher-risk offenders).

Technological advances promise useful innovations in non-incarceratory sentencing, either after or in lieu of a custodial sentence. Electronic monitoring of ex-convicts’ movements helps keep convicts confined to their homes and other permissible locations and enables probation officers and police to locate them quickly when they stray-and to swiftly detect any crimes they may commit.

See

Graeme Wood,

Prison Without Walls,

Atlantic, Sept. 2010, at 88. Biological monitoring systems detect alcohol use and could be used to identify the abuse of other drugs or the presence of elevated tension.

Id.

at 96 . Such tools promise the effective control of criminals at much lower cost and without subjecting them to the anti-rehabilitative aspects of prison life.

Id.

at 88, 96 . Because would-be coconspirators may realize that associating with an electronically monitored convicted felon increases the likelihood of their own detection and capture, such tools may dissuade criminal conspiracies involving monitored ex-prisoners.

5. Effectiveness in Reducing Crime

a. Rehabilitation

The effectiveness of prisons as places for maximum rehabilitation is called into question by high rates of recidivism. “More than 40 percent of murders and robberies are committed by people on probation, parole, or pretrial release.” Kleiman,

supra,

at A5. A 2002 study of 272,111 former state prisoners in fifteen states indicated high rates of recidivism within three years of release from prison: 68 percent were rearrested for new offenses, almost exclusively felonies and serious misdemeanors; 52 percent were returned to prison for new offenses or technical violations; 47 percent were convicted of new offenses; and 25 percent were resentenced to prison for new offenses. Patrick A. Langan & David J. Levin, Bureau of Justice Stat., Dep’t of Justice,

Recidivism of Prisoners Released in 1991

1 (2002),

available at

http://bjs.ojp. usdoj.gov/content/pub/pdf/rpr94.pdf (reporting results for prisoners released since 1994). Thirty percent of ex-convicts were

*658

arrested for a serious offense in the first six months after release.

Id.

at 3.

Demographic data correlate with higher risks of recidivism. In the 2002 study, men were more likely to be rearrested than women (68 percent versus 58 percent) and African Americans more than Whites (73 percent versus 63 percent).

Id.

at 7. The risk of recidivism is inversely correlated with age; prisoners released as teenagers were those most likely to be rearrested or reconvicted within three years, and those released at the age of forty-five or older were the least.

Id.

at 7. The highest rearrest rates were seen for those initially convicted of property offenses: 74 percent.

Id.

at 8. Prisoners convicted of violent crimes and drug crimes had lower rearrest rates: 62 percent and 67 percent, respectively.

Id.

The ability to relate such factors to recidivism risks has led some to suggest strong reliance on them in determining the length of prison sentences.

See

Am. L. Inst., Model Penal Code: Sentencing § 6B.09 cmt. A at 56 (Preliminary Draft No. 5, 2007) (not yet adopted) (citing Stephen D. Gottfredson & Laura J. Moriarty,

Statistical Risk Assessment: Old Problems and New Applications,

52 Crime

Delinq. 178, 192 (2006)) (“Risk assessment may be defined as predicting who will or will not behave criminally in the future.”). It has been argued that these instruments can reduce prison populations by allowing the release of inmates who pose little risk to the public. Bernard E. Harcourt,

Risk as a Proxy for Race

1 (U. Chi. L. Sch., John M. Olin Law and Economics Working-Paper No. 535, Public Law and Legal Theory Working Paper No. 323),

available at

http://papers.ssrn.com/sol3/papers.cfm? abstractid=1677654&download=yes (“Risk”). The reliability of risk assessment tools may be undermined by faulty assumptions.

See generally, e.g., United States v. C.R.,

No. 09-CR-155, draft op., at 243-297 (E.D.N.Y. Mar. 10, 2011) (discussing the limitations of risk assessment tools in detecting the danger to the public posed by some classes of child pornography offenders). From the 1920s to the 1970s, race and nationality were explicitly relied upon in making such determinations. Harcourt,

Risk, supra,

at 4-5. Racial disparity continues today through the use of prior criminal history as a tool for determining sentence length.

Id.

at 8. Criminal history may be a reflection less of a defendant’s risk of recidivism than of disparities in investigation, arrest, prosecution, and sentencing.

Except for the incapacitation effect of incarceration, there is little apparent correlation between recidivism and the length of imprisonment. Those who serve five years or less in prison have rearrest rates of 63 to 68 percent, with no discernible pattern relating to sentence length. Langan

Levin,

supra,

at 11. A 2002 study did note a lower rearrest rate-54 percent-among those who served more than five years.

Id.

No conclusions regarding these longer sentences can be drawn because the report did not differentiate among them by length.

See id.

It appears that among low-risk offenders, recidivism may to a limited extent be fostered, not prevented, by lengthy imprisonment.

Among low-risk offenders, those who spent less time in prison were 4% less likely to recidivate than low-risk offenders who served longer sentences. Thus, when prison sentences are relatively short, offenders are more likely to maintain their ties to family, employers, and their community, all of which promote successful reentry into society. Conversely, when prisoners serve longer sentences they are more likely to become institutionalized, lose pro-social contacts in the community, and become

*659

removed from legitimate opportunities, all of which promote recidivism.

Wright,

supra,

at 7;

but see

Langan

Levin,

supra,

at 11 (“No evidence was found that spending more time in prison raises the recidivism rate.”).

Because prisons are often located in rural areas, and because convicts’ families and friends have limited ability to travel, convicts’ relationships with people on the outside — the people most likely to motivate convicts to lead straight lives — may be eroded seriously during long terms of imprisonment.

See

Jeremy Travis, et al., Urban Inst. Justice Pol’y Ctr.,

Families Left Behind: The Hidden Costs of Incarceration and Reentry

1 (rev. ed. 2005)

available at

http://www.urban.org/ uploadedpdf/310882Jamilies_left_behind. pdf (reporting that incarcerated fathers and mothers are housed an average of 100 and 160 miles, respectively, from their children);

id.

(stating that over half of incarcerated parents report never receiving a personal visit from their children).

Programs such as those for drug and alcohol treatment, adult basic education, vocational training, and prison industries reduce recidivism by 8 to 15 percent. Petersilia,

supra,

at 17.

See also id.

at 34 (reporting a study of inmates in three states that found that those who underwent prison education programs were 23 percent less likely than other inmates to be re-incarcerated). Treatment for mental disabilities may have an even greater positive impact. Nearly a third of state prisoners and a quarter of federal prisoners suffer from a mental condition or physical impairment.

Id.

at 35. Ten percent of state prisoners and 5 percent of federal prisoners have a learning disability.

Id.

Among state prisoners, 19 percent are completely illiterate and 40 percent functionally illiterate, compared to 4 percent and 21 percent, respectively, of the nonincareerated population.

Id.

at 32. In 1999, 51 percent of released prisoners lacked a high school education, and 11 percent had an eighth-grade education or less.

Id.

Coinciding with the nationwide push for stiffer prison sentences since the 1970s has been a de-emphasis on the rehabilitation of criminals and a preference for lengthy incapacitation.

Id.

at 13. When rehabilitative measures were retained, it was often with the purpose of keeping inmates manageable, not in reducing recidivism.

Id.

The continued existence of programs effective at combating recidivism both for current and released prisoners may be threatened by budgetary pressures.

See

Kevin Johnson,

Budget Cuts Slice Programs for Ex-Inmates,

USA Today, Feb. 9, 2011, at 7A (reporting concerns that state government spending for parole and probation departments may be reduced, depleting resources for drug treatment, supervision of offenders, and housing and job assistance).

Recidivism may be promoted by the behavior traits prisoners develop while incarcerated. To survive, they “tend to develop characteristics institutionally selected for survival: circumspection, canniness, coldness, and cruelty.” Perkinson,

supra,

at 368. After release, the negative traits cultivated in prison may be received as virtues on the street. “[PJrison usually enhances one’s prestige on the street, particularly in terms of ... values like toughness, nerve, and willingness to retaliate for transgressions.” Anderson,

supra,

at 292.

b. Incapacitation

Some penologists have estimated that by incapacitating criminals, incarceration has caused between 10 and 25 percent of the decrease in violent crime rates of the 1990s. Marc Mauer,

The Impact of Mandatory Minimum Penalties in Federal

*660

Sentencing,

Judicature, July-Aug. 2010, at 7; Perkinson,

supra,

at 370. It is not known, however, whether this reduction through incapacitation is greater than what could have been accomplished through less restrictive measures, nor is there any indication that mandatory minimum sentences have appreciably affected the reduction. Mauer,

supra,

at 7.

To some extent, the greater effectiveness of prisons in preventing crime through incapacitation may be decreasing as a result of technology. Cellular telephones and Internet-capable “smart-phones” smuggled into prisons enable inmates to freely maintain contact with people on the outside. Kim Severson & Robbie Brown,

Outlawed, Cellphones are Thriving in Prisons,

N.Y. Times, Jan. 2, 2011, http://www.nytimes.com/2011/01/03/ us/03prisoners.html. Such devices are ubiquitous in some prisons, and they may be used by gang-affiliated prisoners to maintain contact with outside criminal networks and orchestrate violence and drug trafficking.

Id.

c. General and Specific Deterrence

A purpose of imprisonment is to deter people generally from engaging in crime. Another form of deterrence directed to this particular criminal who has violated the law — specific deterrence — is designed to prevent recidivism.

Compelling arguments have been made that the deterrent value of a sentence is highest when the chances of its being administered are high and the offender is able to rationally consider the consequences of his or her actions. It appears to be primarily in the certainty of punishment, not its severity, that deterrent power lies.

See

Steven N. Durlauf & Daniel S. Negin,

Imprisonment and Crime: Can Both be

Reduced?, 10 Criminology & Pub. Pol’y 13, 37 (2011); Wright,

supra,

1-2, 4-5.

General deterrence depends on potential offenders’ rational assessment of the likely costs and benefits of crime. Shawn D. Bushway

Peter Reuter,

Deterrence, Economics, and the Context of Drug Markets,

10 Criminology & Pub. Pol’y 183, 184 (2011). That the defendants in this case were rationally capable of making accurate cost-benefit assessments when they were young, before embarking on crime, seems doubtful.

Deterrent power of either type is reduced when potential offenders’ reasoning ability is impaired due to alcohol or drug use.

See

Wright,

supra,

at 2. It may be similarly affected among young people due to the natural rate of brain development.

See

B.J. Casey et al.,

The Adolescent Brain,

28 Developmental Rev. 62, 64 (2008) (“A cornerstone of cognitive development is the ability to suppress inappropriate thoughts and actions in favor of goal-directed ones, especially in the presence of compelling incentives.”);

United States v. C.R.,

No. 09-CR-155, draft op., at 375 (E.D.N.Y. Mar. 10, 2011) (collecting sources).

General deterrence particularly may be impaired when the perceived injustice of punishment damages the credibility of the justice system.

[Studies suggest] that knowledge of systematic injustice produced by the criminal justice system ... can have a range of deleterious effects on people’s attitudes and behavior. People are less likely to comply with laws they perceive to be unjust. They may also be less likely to comply with the law in general when they perceive the criminal justice system to cause injustice.... [In contrast,] if the criminal justice system reflects ordinary perceptions of justice, it can take advantage of a range of psycho

*661

logical mechanisms that increase assistance, compliance, and deference.

Paul H. Robinson, et al.,

The Disutility of Injustice,

85 N.Y.U. L. Rev. 1940 , 2016 (2010).

6. Employment and Social Integration of Ex-Prisoners

Employment is a crucial antidote for recidivism.

See

Jack McDonough & William D. Burrell,

Offender Workforce Development: A New (and Better?) Approach to an Old Challenge,

Fed. Probation, June 2008, at 71 (2008); Mark Sherman,

Reducing Risk Through Employment and Education,

Special Needs Offenders Bulletin, Jan. 2000, at 1-2. “Employment helps ex-prisoners be productive, take care of their families, develop valuable life skills, and strengthen their self-esteem and social connectedness.” Petersilia,

supra,

at 112. There are few reliable analyses of post-release employment,

id.

at 119, but the unemployment rate for former prisoners has been found to be as high as 50 percent within the first nine months of release, compared to an overall national unemployment rate of 9.4 percent.

See

Steven Greenhouse,

Job Placement, with a Record: States Help Find Work (and Hope) for Ex-Convicts,

N.Y. Times, Jan. 25, 2011, at B4 (“Job Placement”).

Ex-prisoners face numerous obstacles to employment. Statutes and licensing regulations bar felons from holding certain jobs. Petersilia,

supra,

at 113-15. “The most common types of jobs with legal prohibitions ... are in the fields of child care, education, security, nursing, and home health care[.]”

Id.

at 113. Many prohibitions are in areas with little connection to public safety.

Id.

at 114-15. In New York, as in numerous other states, drug offenders’ drivers’ licenses are revoked.

Id.

at 115. Ex-offenders have difficulty meeting requirements of bonding against theft, required in many service businesses.

Id.

at 114.

Employers are often reluctant to employ released prisoners. A survey conducted in four major United States cities indicated that 60 percent of employers who had recently hired low-skilled workers were unwilling to hire applicants with criminal records.

Id.

at 116. A record is often seen by employers as a negative reflection on employee trustworthiness; employers also fear that by hiring a convict they may expose themselves to liability for suits for negligent hiring.

Id.

at 116-117. Employers in the construction and manufacturing sectors are more likely to hire ex-convicts than those in businesses involving customer contact, child care, or elder care, but jobs in the former categories are diminishing.

Id.

at 118. Many of the areas in which released prisoners face significant obstacles to employment are those projected to show the greatest growth in coming years.

See

Hacker,

supra

(reporting that among the occupations projected to grow most significantly by the year 2018 are long-haul truck driver, security guard, receptionist, home health aide, nursing aide, orderly, and customer service representative).

Ex-convicts are often eligible for only temporary or seasonal work. Petersilia,

supra,

at 116. The jobs they are able to secure yield wages 10 to 30 percent lower than similar jobs held by those who have not been incarcerated.

Id.

at 119. Ex-offenders face additional competition for jobs as a result of welfare reform. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 instituted incentives for welfare recipients to join the work force; such recipients compete for the same low-skilled jobs as released prisoners.

Id.

at 120.

Obstacles beyond job availability exist. “Many offenders do not have the neces

*662

sary skills or experience to find, compete for, and secure legitimate, full-time employment, even if they are sufficiently motivated.” McDonough & Burrell,

supra,

at 72. Often, released prisoners are hindered by limited education and work experience, substance abuse, psychological and mental problems, residence in inner-city neighborhoods far from available jobs, social connections to criminals, and embedded patterns of behavior learned from the criminal world.

See

Petersilia,

supra,

at 40, 113.

Limited programs have been implemented to prepare released convicts for entry into the job market.

See

Greenhouse,

Job Placement, supra,

at B 1. In the federal court for the Eastern District of New York, the Probation Department offers a number of useful services to ex-convicts through an “Offender Workforce Development” program: counseling in seeking and retaining jobs; furnishing of clothing for work; and instruction and assistance in obtaining state identification cards and driver’s licenses, searching for job openings, networking, filling out job applications, writing résumés, and interviewing.

See

Michelle A. Powell,

Report on Workforce Development Initiatives in the Eastern District of New York

2-6 (2011). Probationers are eligible for subsidized training in such areas as food preparation, plumbing, pest control, and dental assistance through the New York City College of Technology in Brooklyn under the Second Chance Act of 2007, Pub. L. 110-199, 122 Stat. 657.

Id.

at 5 .

II. Law

A. Sentencing Rules

A sentencing court shall “state in open court the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553 (c). If the sentence is not of the kind prescribed by, or is outside the range of, the sentencing guidelines referred to in section 3553(a)(4), the court shall indicate the specific reasons for imposing a sentence different from the guidelines. 18 U.S.C. § 3553 (c)(2). These “reasons must also be stated with specificity in the written order of judgment and commitment.”

Id.

The mandatory nature of the guidelines has been excised, and they are now “advisory.”

United States v. Booker,

543 U.S. 220, 245-46 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005).