“LOCKING UP THUGS IS NOT VINDICTIVE”
“How long have you been a lawyer?” Tasha Willis’s question, posed at our first meeting, was a fair one, even if I was not eager to answer it. Ms. Willis had been assigned to me in 1996, the day after I advanced to Felony II Low, a docket consisting mostly of drug-selling and gun possession cases. My promotion was hardly dazzling: lawyers at the D.C. Public Defender Service (PDS) rose automatically, on a fixed calendar. Our first year was in juvenile court, our second was in adult misdemeanors, and then we moved to lower-level felony cases like Ms. Willis’s. So when I answered her question—“I’ve been practicing for two years now”—her face fell. I could see that my limited experience was of little comfort.1
But no matter her doubts, Ms. Willis was stuck with me. As with all our clients, she was unable to afford a “paid lawyer,” the term our clients invariably used to refer to private counsel. When this label was used, the word “paid” was often drawn out, in part unconsciously, owing to southern influences on D.C. speech, but also in part deliberately, to emphasize the grandeur of any lawyer who could demand a fee. We public defenders, by contrast, had a rather less glamorous reputation. Movies and television shows portrayed us as overworked, inefficient, and, worst of all, resigned, freely provided by the government yet woefully unable to help. But PDS had been established in the 1960s to serve as a national model of indigent defense, and my colleagues and I refused to fit the media stereotype: we cared down to our toes about the inequities of the criminal justice system. We were prepared to devote our days, nights, and weekends to our clients. If anything, we used our low status as motivation. “The best representation money can’t buy,” we’d say around the office, joking only in tone.
Ms. Willis didn’t know any of this, and her low expectations gave me the opportunity to surprise. “Our clients have always gotten the worst of everything,” a senior lawyer had told my cohort of ten new lawyers during training two years earlier. “Bad teachers. Dismissive social workers. Crap housing. No jobs or shitty jobs.” We were in the PDS conference room that day, a dilapidated space in the bowels of a mostly abandoned courthouse. (When my mom visited our office, she surveyed the peeling paint, frayed carpets, and walls covered with left-leaning posters and said, “I love it. Reminds me of SNCC.”) Our trainer continued, “And now you come along. Of course they will assume the worst!” There were murmurs of assent throughout the room. “But they deserve better. They deserve what society has never offered, not one single time. And your job is to give them that, to give them what any of us would want if we had a loved one facing trial—your job is to give them the best.” Yes, yes, yes, I thought, joining my classmates in pounding our desks in agreement.
The speech worked: I left training ready to run through walls for my clients. But when I visited Ms. Willis in her basement apartment a few months after I took her case, it seemed as if hard work wouldn’t be enough. She had been arrested after an undercover officer, approaching her on the corner of Seventh and T Streets, had purchased $10 worth of heroin with a specially marked bill. After leaving the corner, the officer identified Ms. Willis to a uniformed colleague, who made the arrest and brought her to jail. The prosecution’s evidence was certainly damning—when the police searched Ms. Willis, they found the marked bill. She knew she needed a good lawyer, and I couldn’t help but feel discouraged by her initial disappointment at my novice status. But the thing that really got me down—that made me fear my best would not be good enough—was the sentence Ms. Willis now faced.
When I started working as a public defender, in the fall of 1994, I would occasionally ask friends, family members, or even people I had just met at a party to guess how much prison time a person might serve for a particular crime. “What should the maximum sentence be,” I would begin, “for selling a small amount of a hard drug, like heroin or cocaine?” Most answers fell somewhere between probation and a few months in jail; even my strictest respondents advocated a year of incarceration, two at the most. In each case, after receiving an answer, I would motion upward with my thumb, again and again, until the number strained, broke, and moved far beyond the limits of reason. For a first-time offender, D.C. law stipulated a maximum of thirty years in prison. For someone with a prior conviction—someone like Ms. Willis, who, five years before, had been caught selling $20 worth of heroin—a guilty verdict could mean up to sixty years behind bars.2 Whomever I was speaking to would invariably be shocked—but then, after an uncomfortable silence, someone would introduce a more upbeat topic. To those I cornered at parties, D.C.’s sentencing system may have been appalling, but it was still just a thought experiment, not a tangible reality.
With Ms. Willis, however, there was nothing abstract about our talk. She was in her mid-forties, so the sixty-year maximum sentence for selling a $10 bag of heroin would amount to life in prison. We were sitting in her kitchen, where she was making beef stew. I accepted her offer of a bowl, and it was delicious, but I didn’t eat enough to satisfy her. “Attorney Forman, you need to eat; no woman is going to want a skinny man.” I had known this was coming. Ms. Willis was only about fifteen years older than I was, but she invariably had motherly advice to offer.
We laughed for a bit about my food choices—she was appalled to learn that I thought rice and beans plus salad constituted dinner—but before long we had to turn to a graver topic. I had come to explain the government’s offer: if Ms. Willis pleaded guilty to an attempted heroin distribution charge, the prosecutor would cap allocution at five years (i.e., the prosecutor would recommend that the judge impose no more than a five-year sentence with the possibility of parole). Though judges were not bound by these suggestions, the judge assigned to our case was known to go along with the government’s recommendations.
Ms. Willis wanted to know whether I thought this was a good deal. I said yes, because a trial would be risky, and if we lost, the consequences would be severe. Of course, not even D.C.’s harshest judge would assign the full sixty years for a case like this—but still, every so often a judge did go ballistic on some poor soul. Ten- and fifteen-year sentences were rare, but not unheard of, in low-level drug cases involving repeat offenders.
When I was done with my spiel, Ms. Willis sat quietly, looking not at me but at the white wall behind me. It was a longer silence than I was comfortable with. But just as I was about to ask her if she understood or if she had questions, she leaned forward and looked me square in the eye and said, “I don’t want that plea offer. I want a better one.” I started to respond that this was the best deal I could get, but Ms. Willis shook her head quickly, almost as if she knew what I was going to say before it came out of my mouth. “Tell the prosecutor, or the judge, or whoever,” she continued, “that I don’t need to go to jail.” Her voice was firm and free of doubt. “Attorney Forman, tell them I can’t leave my mom for five years. Tell them I need a drug program.” Ms. Willis didn’t lower her eyes when she was done speaking. It was clear that she wasn’t asking me to do anything. She was telling me. As I listened to her, I couldn’t help but think that in a different world, she would have made an excellent attorney herself.
But I doubted her speech would work as well in the prosecutor’s office as it did in her kitchen. It’s not that I thought she was wrong—according to her court records and personal statements, she was most definitely an addict. The problem was that I had already told all this to the prosecutor. Her name was Bernice Lester, and she was one of the good ones, a friendly African American woman who had been in her job only slightly longer than I had been in mine. Nine months earlier, in a different case, Bernice had used her discretion to permit one of my clients to avoid prison and enter a diversion program.
This time, in her office just a few blocks from PDS, Bernice had listened to my pitch as I described Ms. Willis’s pathway to addiction. Ms. Willis had worked for the post office before suffering a serious back injury when she tried to lift a package meant for two to carry. No matter how much pain medicine she took, it never seemed enough, and over time she became hooked on pills and, eventually, heroin. She lost her job and fell deeper and deeper into her addiction.
As I was finishing my appeal, Bernice looked through the stack of case folders on her desk, found the one marked United States v. Tasha Willis, and promptly shook her head. “No,” she said, skimming the first page in the file, “I just can’t. My office won’t do it—she’s got priors and already had two chances at drug programs. Programs don’t work for her.”
This answer—that drug programs “don’t work” for a defendant—was a common one among prosecutors, and it always infuriated me. Anybody who has ever been addicted, loved somebody with an addiction, or studied addiction knows that many people relapse multiple times before getting clean for a sustained period.3 “So what?” I demanded, leaning forward, my voice sounding angrier than I had intended. Bernice just looked at me, her smile fading fast. It would have been a good time to hit the wrap-it-up button. But I pressed ahead, my voice filled with righteous indignation. “How come with drug programs, we act as if one or two chances is all you should get? How come we don’t treat prison the same way?”
After all, I pointed out, Ms. Willis had already served one mandatory prison sentence, with no treatment, and had gone back to using and small-time selling as soon as she got out. And yet, I said, our system never treated the failure of prison as a reason not to try more prison.
Bernice was unmoved. “There are already long waiting lists for the few programs around,” she told me, “and they should go to people who haven’t had a chance before.” So that was it. No drug treatment program for Tasha Willis. Five years in prison was the best Bernice could, or would, do. Her last words couldn’t have been clearer: “Tell your client to take the deal or we go to trial.”
* * *
The severe penalty that Tasha Willis faced was the result of decisions that D.C. had made fifteen years before, when city politicians and voters dramatically toughened criminal sentencing in the District. Two prominent figures had campaigned for this policy change: John Ray, a lawyer who had recently been elected to the city council, and Burtell Jefferson, who had just stepped down from his position as police chief. Their goals were to increase the maximum sentences for selling drugs and to implement mandatory minimum sentences for certain drug and gun crimes. Their efforts helped establish a national precedent for punitive sentencing, and at the same time served as an example of America’s failure to consider alternative responses to the ravages of drug addiction.
Ray and Jefferson launched their campaign at a time when almost everyone agreed that D.C.’s drug laws needed updating. Since 1938, offenders in D.C. had faced a one-year maximum sentence for drug crimes, with a ten-year maximum for a second offense.4 The law did not distinguish between substances—heroin, cocaine, and marijuana were all treated equally—nor did it distinguish between possession and sale.
By the late 1970s and early 1980s, pressure was growing to do something to make these laws tougher. Despite the city council’s 1975 decisions to keep marijuana criminalized and to prohibit gun possession, drugs and crime had continued to decimate the city—especially its poor and working-class black neighborhoods. The complaints seemed to come from everywhere, but nowhere more vociferously than the neighborhoods of Shaw, U Street, and Columbia Heights. These once-vibrant communities had been devastated by the riots following the assassination of Martin Luther King, Jr., in 1968. Most businesses never reopened, and in the 1970s, many residents began to denounce what a coalition from the Fourteenth Street neighborhood called the “open and notorious” drug markets flourishing in public spaces.5 Council member John Wilson, who had led the fight for gun control five years earlier, complained that at the corner of Tenth and O Streets, “droves of drug dealers, sometimes numbering fifty to one hundred, can be regularly seen stopping cars and passersby.”6 About a mile north, narrow one-way Chapin Street was home to passels of young dealers flagging down cars and soliciting pedestrians with impunity. According to one resident, the block had become “the McDonald’s of the marijuana business.”7
It is hard to overstate just how dire the situation was, or just how widespread the outrage. Children were often invoked as the drug trade’s victims. “I try to keep my kids in the back of the house,” complained one Chapin Street resident, “so they don’t see the kids selling pot in the front.”8 Gloria Cole, an antidrug activist in Southeast D.C., worried that these dealers would lure children into the trade. “I’ve told the youngsters a million times not to go up there,” she said, referring to a neighborhood drug trafficking hot spot, but “they go anyway because it’s something different to see. It’s like an all-night parade.”9 When the D.C. Board of Education member Frank Smith visited Cleveland Elementary School, in the heart of Shaw, he had to brave a throng of drug buyers and sellers before he could go inside. “There were so many young men between the ages of 18 and 32 in the one block around the school that I was frankly frightened to enter the building,” he recounted.10
D.C. residents were forced to take matters into their own hands. In Capitol View, an African American community in the far eastern part of the city, residents adopted a variety of protective measures, from the mundane to the exotic. One concerned citizen reported keeping a pet fox to ward off intruders. Another resident had, in his own words, “brought home from overseas a wild bird that will attack a human.”11
However bizarre these improvised strategies may appear in retrospect, their adaptive breadth reveals just how scared and vulnerable people felt. The angriest residents went on offense. Tony Hillary, chairman of the Advisory Neighborhood Commission in Adams Morgan, was a librarian by day and leader of a “citizens patrol group” by night.12 Hillary and his fellow vigilantes took to the streets, determined to combat heroin dealing as well as the burglaries, assaults, and rapes that the drug trade spawned.13 He carried a loaded handgun during these patrols, in open defiance of D.C.’s gun ban. He viewed his group as securing the kind of safety that the city’s police force had failed to provide. “The police say, ‘Close your eyes and the neighborhood will change,’” Hillary declared. “Well, I can’t close my eyes. It’s time we took retaliatory measures.”14 When asked about his intentions, he warned, “We’re going to shoot to kill.”15
Librarian and anticrime activist Tony Hillary, standing by his front door at 1422 Harvard Street, NW (The Washington Post)
Although Hillary took his dissatisfaction with law enforcement to the extreme, his dim view of the criminal justice system was far from unique. Complaints fell roughly into two camps. First, people lambasted what they viewed as lackadaisical street-level enforcement by the police. Often, these complaints were racially inflected, as when the Shaw activist Ibrahim Mumin argued that overt street dealing “wouldn’t be tolerated in Georgetown and other [predominantly white] communities.”16 In a letter to the city council, another Shaw resident called the continued drug presence on Fourteenth Street “prejudicial and shameful.” Drug deals “are made in the presence of policemen,” the author wrote. “There is no congregation of this sort in predominantly white areas of the city.”17 The Afro-American editorial board joined the chorus. “Some lawmen may be sharing in the narcotics profits,” they wrote, “or are looking the wrong way because it is too much trouble to do their jobs.” Fearing that “the hard won gains of the civil rights movement are being flushed down the drain by the persistent prevalence of narcotics in our communities,” D.C.’s leading black paper called the unchecked drug market “[a] new kind of slavery.”18
The court system was the second target of complaints. Some of the objections to excessive leniency focused on the release of suspects after their arrest and before trial. In February 1979, for example, when Burtell Jefferson addressed the D.C. Federation of Civic Associations, a collection of neighborhood organizations in historically black neighborhoods, the group was in the midst of a campaign urging judges and prosecutors to keep more people in jail while awaiting trial.19 “Too often,” the Afro wrote, “breaking the law has meant nothing to would-be criminals because they felt they would be ‘back on the street’ within a few hours after an arrest.”20 Others complained about the short prison sentences—or probation with no prison time—imposed after conviction. Still others focused on a parole system that released people too early and too easily. While distinct, these three concerns were variations on a theme: revolving door justice.
Today, with so much attention paid to the severity of our criminal justice system, it is difficult to imagine a time when prison doors were seen as anything but locked. But in the mid- to late 1970s, the phrase “revolving door justice” became a commonplace. The term was especially popular with conservative politicians and publications: U.S. News & World Report ran a 1976 cover story titled “‘Revolving Door’ Justice: Why Criminals Go Free,” focusing especially on D.C. courts. But the three words gained currency across the political spectrum.21 In 1975, for example, Ted Kennedy, the liberal senator from Massachusetts, published an op-ed in The New York Times arguing that “‘revolving door’ justice convinces the criminal that his chances of actually being caught, tried, convicted and jailed are too slim to be taken seriously.” As a result, Kennedy continued, “Our existing criminal justice system is no deterrent at all to violent crime in our society.”22
(U.S. News & World Report, May 10, 1976)
To many African American observers, the revolving door was discriminatory: it spun fastest for the criminals who victimized blacks. “The poor and the uninformed are easy to prey upon, and the courts don’t give a damn about the victims,” wrote Carl Rowan, one of the nation’s most prominent African American columnists, in a piece titled “Locking Up Thugs Is Not Vindictive.” The courts, indifferent to the plight of black victims, “let the perpetrators of unconscionable violence go free to terrorize minority communities again and again.”23
* * *
In the spring of 1981, David Clarke, chair of the Judiciary Committee of the D.C. Council, submitted a proposal for strengthening the District’s sentencing guidelines for drug offenses. His solutions largely mirrored those that had been adopted by the federal government and many states: he wanted to separate drugs into classes and distinguish between possession and sale, generally reducing penalties for the former but increasing them for the latter. Clarke, who had fought so hard for marijuana decriminalization a few years earlier, was no drug warrior. But he was a politician, and he knew that the mood in the city, and trends in the nation, were all pushing toward longer sentences. So in place of the one-year maximums that had been the law since 1938, Clarke proposed a maximum penalty of ten years for the sale of heroin and five years for the sale of cocaine (he kept the one-year maximum for marijuana).
This wasn’t enough for Burtell Jefferson; the police chief supported raising the ceiling for drug sentences higher than Clarke had proposed, and he wanted to raise the floor, too. The appeal of mandatory minimums to police officers is not difficult to understand when we consider the judicial system from their vantage point. Where lawyers and judges see due process, many officers see a series of incoherent, permissive decisions that conspire to undo the hard, often dangerous work that produced an arrest in the first place. A prosecutor might drop a case because of a legal technicality; a judge might release a defendant on bail, and that defendant might immediately resume dealing drugs on the same corner where he was arrested; a jury might find reasonable doubt, even when presented with strong evidence; and for the rare defendant who does get convicted, a judge might opt for probation, which, no matter how onerous the conditions, invariably reads to the arresting officer as a slap on the wrist. “Our hands are tied by the criminal justice system,” complained MPD lieutenant Kenneth Brown. “How do you think we feel when we arrest a joker today and he’s back on the street tomorrow?”24 Mandatory minimums might not be a panacea, but from the police officer’s perspective, they were a valid and necessary response to rising crime.
(U.S. News & World Report, May 10, 1976)
No matter how strongly Jefferson believed in mandatory minimums, however, he could not vote on council legislation. Luckily, he met somebody who could: John Ray, an ambitious thirty-seven-year-old council member who had run for mayor once and was considering another shot. The two men were natural allies: both valued reserve over flash and hard work over talk.
Raised by his grandmother in rural Georgia, in a two-bedroom house that had to accommodate fifteen family members, Ray woke up daily at six a.m. to work the cotton and tobacco fields and tap pine trees for turpentine. He never met his father, and his mother had been forced to move to Florida in search of work. But Ray flourished. In 1961, he graduated from Herctoma High School; of the thirty-five students who had been in his first-grade class, he was the only one to graduate on time, and he did so as both class president and valedictorian. In an earlier era—even just a decade or two earlier—being smart and disciplined would not have been enough to overcome the grinding racism of rural Georgia. But Ray had been born just as the Jim Crow regime was beginning to crack. Ray joined the Air Force after graduation; from there, he made his way to D.C., where he attended George Washington University for both college and law school. (While earning his law degree, he spent a summer working for former Supreme Court Justice Abe Fortas, who later hosted Ray’s wedding at his home, even playing the violin during the ceremony.) Before long, Ray began collecting the marks of success in law: a clerkship with Judge Spottswood W. Robinson III on the U.S. Court of Appeals, a stint as legal counsel for Senator Ted Kennedy, and a position as attorney adviser in the Department of Justice’s Office of Legal Counsel. In 1978, he entered electoral politics, securing an at-large position on the city council (and unseating, in the process, none other than Doug Moore, the black nationalist anti-marijuana crusader and gun rights advocate).25
Ray had not campaigned on an anticrime platform, but in 1981, when he reviewed Clarke’s proposed reforms, he found them too weak to solve the city’s crime problem. Ray wanted to raise the statutory maximums even higher: whereas Clarke had proposed a maximum of ten years for selling heroin, five years for cocaine, and one year for marijuana, Ray argued for fifteen for heroin, ten for cocaine, and three for marijuana.26
But raising the maximums was not enough, Ray believed, because judges would still have the leeway to hand out probation. Like Jefferson, Ray wanted to freeze the revolving door, and throughout the spring of 1981 he offered a series of amendments to do just that. At the heart of Ray’s plan were longer maximum sentences and mandatory minimum sentences for gun and drug offenses: five years’ mandatory time for committing a crime with a gun, four years for selling heroin, and two years for selling cocaine. Much like Doug Moore, whose arguments against marijuana decriminalization were rooted in a race-conscious defense of the black community, John Ray advocated mandatory minimums in the language of racial and class justice. “Black crimes against blacks get very low sentences,” Ray noted, citing NAACP and Urban League research in his critique of the existing system. “Black crimes against whites get very big sentences, and low-status whites get longer sentences than higher-status whites.” These disparities existed in drug cases, too, Ray said. The rich drug defendant escapes unscathed, “while the poor lad on the street is put away in Lorton [D.C.’s prison].”27
When Ray spoke to civic and church groups, he was met with nodding heads and murmured assent. But apart from Jefferson, the city’s leaders remained skeptical of mandatory minimum sentencing. On March 12 and 13, the council held hearings on the proposals from Clarke and Ray, and the tough-on-crime legislator was met by a phalanx of opposing witnesses. Edward Hailes, the president of the local NAACP chapter, stressed that despite the group’s outrage over crime (the chapter had recently launched a “War on Crime” after the brutal slaying of one of its members), the NAACP nonetheless viewed mandatory minimums as too blunt a response. Ray’s solution was “a club,” Hailes argued, and he recommended that the council instead “use a scalpel—a scalpel of justice to cut crime out of the community.”28 The Washington Urban League’s president, Jerome Page, told council members that harsher punishments would not solve D.C.’s crime problem; he urged the council to focus instead on root causes. Criticizing proposals for “stiffer penalties, longer sentences, and more incarceration,” Page said that these “all seem to discount the importance of community-based crime prevention efforts, and the conditions of poverty that are so much a part of the crime problem.”29 Even those tasked with public safety, such as the Corporation Counsel for D.C., the Department of Corrections, and the Board of Parole, also urged the council to reject mandatory minimums, citing the likely strain on the District’s already overextended correctional resources.
But of all the witnesses who testified against Ray’s bill, the most unlikely, and potentially consequential, was Charles Ruff. As U.S. Attorney for the District of Columbia,30 Ruff (who would go on to serve as White House counsel under President Bill Clinton) argued that mandatory sentences would clog the system and impose unjust penalties on defendants who deserved leniency. “Picture the case of your mother or sister who is charged with an offense,” Ruff said to the council. “Don’t you want the prosecutor to have the discretion to say your sister is a special person, and hers is a one-time offense?”31 The rhetorical question infuriated Ray, who, in response, called it “hogwash.” For Ray, prosecutorial discretion was the cause of injustice, not the solution to it. Too often, he said, those with means or connections got a break, while “those who are poor, those who are black, are the ones who end up with the tough sentences.” Ruff, in turn, forcefully rejected Ray’s claim: “I think there is no evidence—none—that there is any discrimination in sentencing between the black man and the white man.”32
This remarkable standoff does not fit our standard narrative about the politics of punishment. Here, in 1981, and three years before the federal government would pass its own set of mandatory minimums, we find John Ray, a black politician born under Jim Crow, demanding mandatory sentences on the grounds that they would be fairer to blacks—and facing stern opposition from a white federal prosecutor. Ruff’s opposition—and the fact that the Department of Justice allowed him to testify against the proposal—highlights the extent to which Ray and Jefferson were at the forefront of a revolution in American criminal justice.33
Ray and Jefferson expected mandatory minimum sentences to be a tough sell, and they were right. On May 19, when the council passed new drug legislation, it overwhelmingly rejected the proposal for mandatory minimums.34
Nonetheless, the two men had achieved something important. While the opposition had homed in on their mandatory minimum proposals, they had quietly won something just as significant. The legislation contained the higher maximum sentences that Ray and Jefferson had called for—not the ones in Clarke’s original proposal. Now, for example, a first-time offender charged with selling heroin would face a fifteen-year maximum, no matter the amount of the sale. Moreover, although the council had rejected their calls for mandatory minimums, Ray and Jefferson believed that D.C.’s residents might reach a different conclusion—and the initiative process, which allowed citizens to vote directly on a ballot measure, would give them a chance to find out. The fight was far from over.
* * *
Ray and Jefferson had counterparts in cities across the country; many of the earliest crusaders for tougher drug laws were African Americans. In New York City, as we have seen, a coalition of Harlem activists demanded an increased police presence and stiffer penalties from the courts.35 While heroin was the object of community outrage in New York, in Los Angeles it was phencyclidine, more commonly known as angel dust or PCP. The drug, which had first arrived in Los Angeles in the mid-1960s, exploded in popularity over the next decades. In 1979, the LAPD made 3,905 PCP-related arrests—sixteen times the number it had made just four year earlier.36 The crisis was covered extensively by the city’s leading black newspaper, the Los Angeles Sentinel.
California State Assemblywoman Maxine Waters, a black woman representing the 48th District, took the lead in the fight against PCP.37 Waters, formerly a partner in a public relations firm, had been elected to the California State Assembly in 1976.38 Her district, which included a portion of South Central Los Angeles, was among those hit hardest by PCP, and she was a regular presence at anti-PCP community rallies. “Waters Attacks PCP,” ran a Sentinel headline in March 1978; the article quotes her as saying, “We must take a hard-line approach to those convicted of selling and manufacturing this deadly chemical.” That spring, she introduced a bill to increase the maximum penalties for the manufacture or sale of PCP—with “manufacture” including the possession of certain chemical precursors—from two to four years to three to five years.39 Her proposal received overwhelming support and became law in April 1978.40
But Waters’s bill did little to ease the crisis. Because the PCP trade was so lucrative—an initial investment of $1,000 could result in profits of up to $25,000 for a local dealer—PCP seemed unstoppable. Especially in the projects of South Central L.A., PCP continued its march. In the fall of 1979, the Sentinel somberly declared, “L.A. Becomes PCP Capital of the World.”41
(Los Angeles Sentinel, October 9, 1980)
As use of the drug escalated, so did the Sentinel’s response: the paper moved from journalism to activism. In September 1980, the editors published “An Open Letter to PCP Dealers & Other Dogs!” on the front page. Rejecting the notion that drug dealing was a nonviolent crime, they declared:
[Y]ou are guilty of murder, rape, theft, robbery, matricide, patricide, fratricide, and every other crime committed by any human being under the influence of PCP … [Y]ou will have to stand before a tribunal for your crimes. It will not be a court of law. There will be no prosecutor or defense attorney. And there will be no official sentencing date, nor will there be a probation department report. The community has already judged you guilty and the only thing left is for the sentence to be carried out.
No punishment was too harsh: PCP dealers, according to the Sentinel’s editors, deserved to be “tarred and feathered, burned at the stake, castrated, and any other horrendous thing which can be imagined.”42 The letter was signed “The Los Angeles Sentinel and the rest of the Black Community.”
Castration, of course, was not a viable option—but mandatory minimum sentences were legally possible, and the Sentinel’s writers strongly endorsed them. In the eyes of the columnist Ed Davis, for example, Assemblywoman Waters’s bill wasn’t tough enough. In a 1980 column headlined “Pushers: The Grandfathers of PCP Crimes,” Davis advocated a twenty-five-year mandatory sentence for selling the drug. “This Grandfather crime brings about the myriad of acts of violence in the Black community,” he wrote: “man beating wife, mother killing child, son attacking father, self-defense shootings, PCP user driving automobile into buildings and other acts of aggression.”43 Davis’s argument—that drug dealers were directly responsible for the collateral damage in their communities—was a familiar and resonant one in black neighborhoods across the country, and it goes a long way toward explaining why so many blacks were in favor of harsher drug punishments.
Alongside its calls for tougher laws, the Sentinel also urged community action. In an editorial headlined “Sentinel Declares World War III on PCP,”44 the paper’s executive editor, James H. Cleaver, wrote that the PCP epidemic “represented the worst invasion since Hitler marched into Poland.” No longer content with simply documenting and denouncing the havoc wrought by PCP, he urged the black community to rally at open-air drug markets, which he said operated with grotesque impunity across the city. “The areas where PCP is constantly sold will have to be literally closed down,” Cleaver wrote. His message to the city’s black residents was unequivocal: “If you are not a part of the solution then YOU are a part of the problem.”
Between 1980 and 1982, black Los Angelenos heeded the call, gathering by the hundreds—sometimes even by the thousands—to hear clergymen, musicians, and politicians rail against the scourge of PCP. One of the rally regulars was Johnnie Cochran, the county’s first black assistant district attorney. Cochran, who would later became famous for his defense of O. J. Simpson, called PCP a “brain altering and brain destroying” drug. Its purveyors, he declared, “should be dealt with swiftly, surely and in those instances where facts warrant it—harshly.”45
For Cochran, the PCP epidemic was part of a broader crisis in black communities: crime, and the tendency he saw among blacks to excuse it. That so much of this crime was perpetrated by blacks upon other blacks only made matters worse. In Houston, Brooklyn, and other cities, black newspapers reporting on rising homicide rates isolated the problem as one of “Black on Black crime.” The most prominent use of the term came from the national magazine Ebony, which devoted its 1979 annual special issue to the topic. In his publisher’s note, John H. Johnson wrote that although “this is an issue we wish we didn’t have to publish,” the magazine had no choice because “Black on Black crime has reached a critical level that threatens our existence as a people.”46
In 1980, after the National Bar Association (the nation’s leading organization of black lawyers) devoted its annual conference to the question of black-on-black crime, Johnnie Cochran urged other blacks not to be “apologists for the crime in our communities.”47 Getting tough, he believed, required two changes: judges must hand out longer sentences, up to and including the maximum, and legislators must stiffen the available penalties.48
* * *
“In January 1982, John Ray launched a bid for the mayor’s office, challenging the incumbent, Marion Barry. Though this campaign never gained momentum, shortly thereafter he announced another one—a ballot measure for mandatory sentences—that would. The provisions of Ray’s ballot measure, which would be voted on in September, were similar to those in his original proposal. For individuals convicted of committing a violent crime while armed with a gun, the mandatory minimum would be five years in prison for a first offense and ten years for all subsequent offenses. For individuals convicted of selling drugs, the minimum would vary according to the substance: four years for heroin, two years for cocaine, and one year for marijuana (but in the case of marijuana, only if the person had sold very large amounts).49 The ballot initiative, known as Initiative 9, contained an exemption for addicts. It allowed judges to waive the mandatory minimums for addicts who sold to support their habit, as long as it was the person’s first conviction for selling drugs. Under D.C. law, an initiative required fourteen thousand signatures to appear on the ballot; Ray and his supporters collected more than twenty-four thousand.50 The majority of these signatures, they claimed, came from Wards 5, 6, and 7—areas that included many of the city’s black middle- and working-class neighborhoods.”51
Ray still had his ally Burtell Jefferson. The police chief had retired in 1981 and a year later assumed the leadership of Citizens for Safer Streets, a group supporting Ray’s proposal. Beyond Jefferson, however, a broad coalition rose up in resistance. From elected officials such as Marion Barry and Walter Fauntroy, the D.C. delegate to Congress, to race-conscious civic organizations such as the NAACP, the Urban League, and the National Conference of Black Lawyers, to progressive groups such as the National Lawyers Guild, the local branch of the American Federation of Government Employees, the Gay Activists Alliance, the National Moratorium on Prison Construction, the League of Women Voters, and the ACLU, the civic and legal elite was united in opposition.52 Even Charles Ruff, who had stepped down from his role as U.S. Attorney in October 1981, continued to voice his opposition, publishing an article in The District Lawyer raising doubts about the initiative.53 Stanley Harris, whom President Reagan had appointed as Ruff’s replacement, added his own criticism, saying that while the U.S. Attorney’s offices supported mandatory sentencing “in appropriate and carefully defined circumstances,” Initiative 9 “is not crafted in such a way as to meet our concerns.”54 If Initiative 9 was a recapitulation of Ray’s original proposal, its detractors’ arguments were a restatement of earlier objections: mandatory minimums, they claimed, would create a massive backlog in the courts, eliminate judicial discretion, overcrowd jails, and, most important, fail to reduce crime rates.
That spring and summer, the two sides engaged in a protracted duel, making their cases with pamphlets, speeches, radio appearances, and visits to neighborhood forums.55 Ray’s and Jefferson’s message was exceedingly simple: Crime is out of hand, so we must get tough. In addition to stopping the “revolving door,” Ray argued, mandatory minimums would deter crime by sending the message that drugs and guns would no longer be tolerated.56 “Most of our citizens believe punishment does deter crime,” Ray said two weeks before the vote, recognizing the intuitive appeal of this logic. They were “responding to what they view as a reasonable approach.”57
Opponents of Initiative 9 struggled to make their case equally compelling. Though their ranks included many high-profile figures, theirs was an uphill battle. Unlike an open-ended legislative session, a ballot initiative entailed an up-or-down vote, meaning that Initiative 9’s opponents could not present an alternative to Ray’s proposal: their only option was to point out the bill’s flaws. And their uninspiring slogans—which included the near rhyme “Thumbs down on Nine. It won’t stop crime”—offered little hope to besieged communities.58
Indeed, in the months following the passage of D.C.’s 1981 antidrug bill (the one that passed without Ray’s proposed mandatory minimums), the situation had not improved. In August 1981, three months after that bill’s passage, Juan Williams, then a writer for The Washington Post, published an op-ed titled “Heroin in My Neighborhood.” The piece described the open-air drug market on Seventh and S Streets—a corner not far from where my client Tasha Willis would be arrested for selling heroin almost fifteen years later. “By 6:00 pm the crowd of about 300 is swarming: swollen, scarred junkies waiting for dealers; minor-league drug dealers waiting for a drop from a bigger dealer, ‘the candy man’; and the part-time junkies, driving by, looking for a dealer they recognize so they can start their weekend of wasting away a little early.” Williams, who lived nearby, had witnessed increasingly radical measures to clear the block. Since users and dealers often stashed their supplies under car tires, the police had adopted the strategy of opening fire hydrants and flooding the gutters to wash away drugs and syringes. The strategy was quickly abandoned because it evoked memories of policing during the civil rights movement, when southern officers blasted demonstrators with water hoses. But Williams criticized the MPD’s decision to terminate the floods. “With that crowd, that blight, in your neighborhood, near your wife and child, you lose all concern for appearances,” he wrote. His top priority, by a wide margin, was making the neighborhood safe: “If water gushing down the streets will stop the drug deals and make the small-time thieves, punks and crazies go elsewhere, then turn on the hydrant, chief.”59
Ray capitalized on the collective anger of citizens like Williams, shrewdly taking his campaign to the middle of known drug markets. In the spring of 1982, for example, as the campaign was heating up, Ray traveled to one of the city’s most notorious open-air markets, at 14th and W Streets, for a press conference announcing the release of a position paper on crime.60 There, in plain view of some crowd members, a drug dealer completed a transaction.61 By venturing into these areas, Ray dramatized the fight over public space that had been lost to the drug trade.
Another impromptu moment from that same press conference allowed Ray to powerfully defuse one of the primary objections to Initiative 9. In the middle of the event, a man in sunglasses began heckling Ray. “Selling drugs, selling socks, selling dogs. Man has got to feed his family!” he shouted. “Why don’t y’all get them some jobs?” But Ray was ready for this root-cause argument, retorting that the drug dealer was effectively poisoning his “black brothers and sisters.” The notion of the drug dealer as race traitor, established in the 1970s by black nationalists like Hassan Jeru-Ahmed, was an especially visceral one, particularly for poor and working-class blacks who bore daily witness to the devastation of addiction. So when the heckler called this rebuttal “irrelevant,” suggesting that Ray’s privilege kept him from understanding the plight of the black poor, Ray seized the opportunity to deploy his own biography. “Let me say that my grandmother, grandfather went through life and had a very hard time,” he said, reminding the man—and the listening crowd—that he had grown up “dipping turpentine” in the backwoods of Georgia. “We went through a depression and they didn’t sell drugs to their sisters and brothers, didn’t sell drugs to young people,” Ray said. “I don’t care who you are, there is no excuse for selling drugs.”62
In the weeks leading up to the vote, the political battle intensified. Ray and Jefferson heightened their visibility, campaigning for their initiative by walking from one murder scene to another, thereby making a political spectacle not only of the city’s crime problem but also of their committed response. As election day approached, the campaign for mandatory minimums looked to be gaining steam—a poll conducted two weeks before the vote suggested that 71 percent of registered voters favored the measure—and Ray and Jefferson got more good news when the National Rifle Association lent its last-minute support. The NRA dispatched its members across the city to distribute fifty thousand pamphlets encouraging citizens to “Vote Prison Time for Violent Crime.”63
On September 14, 1982, a warm, late-summer D.C. day, voters went to the polls. It was a blowout. Initiative 9 prevailed in all eight of the city’s wards, from the affluent Ward 3, home to the majority of D.C.’s whites (67 percent in favor), to Ward 5, a set of mostly black, mixed-income neighborhoods (75 percent), to Ward 8, the low-income, overwhelmingly black area east of the Anacostia River (75 percent). Overall, the proposal passed with a dominating 73 percent of the vote.64
Mandatory minimums also won approval across economic classes. The city’s eight wards are further subdivided into voting precincts containing just a few thousand voters each. Initiative 9 was favored by voters in 136 of the city’s 137 precincts, receiving its highest vote margins in some of the city’s poorest pockets and those hardest hit by the drug traffic. In fact, the only precinct in which the initiative failed to win a majority of votes was in the Palisades, a wealthy, mostly white neighborhood bordering Georgetown and the Potomac River.65
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When the vote was reported, Jefferson expressed hope that the victory “was a message to those persons committing crimes that they can expect swift and certain punishment.”66 But in the years to follow, despite the sponsors’ hopes, D.C. crime would only get worse. After an initial dip in the vote’s immediate aftermath, the homicide rate would explode later in the decade. As for drugs, prices remained stable and overdose fatalities continued to rise, climbing from 41 in 1979 to 155 in 1985.67
But if the initiative left the city’s drug market unaltered, it succeeded wildly in reshaping the application of criminal justice. In the two years following Initiative 9’s passage, as the system absorbed the law’s incentives, drug prosecutions skyrocketed nearly 300 percent, from 838 in 1982 to 2,277 in 1984.68 Other changes were equally profound. In 1980, for example, only 3 percent of drug arrests were for sales, while 97 percent were for possession. Over the next four years, however, sales arrests increased by a factor of fifteen, to 45 percent, leaving only 55 percent for possession.69
At first blush, these numbers might suggest that police were arresting a different group of people—sellers, not users. In fact, the same people were being arrested, but now prosecutors were charging them with the more serious offense. Before Initiative 9, the maximum penalty for possession had been the same as the maximum penalties for sale and for possession with intent to distribute (PWID). Under that system, prosecutors had no incentive to take a case that was on the borderline between possession and possession with the intent to distribute and charge PWID. But now, under the new system, someone convicted of PWID faced up to fifteen years in prison, with a minimum sentence of two or even four years, depending on the drug. As a result, prosecutors began charging defendants with PWID indiscriminately, even in cases when an arrestee had only $50 to $100 worth of drugs on her person (i.e., the amount a heavy user could consume in a day or two). The new guidelines also changed the average defendant’s strategy: the prospect of a fifteen-year sentence dramatically increased the pressure to plead guilty and take a deal. Even the police force modified its tactics, increasingly conducting buy-bust operations like the one that, almost fifteen years later, would catch Tasha Willis.
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From the perspective of a present-day observer, the black community’s overwhelming support for Initiative 9 may appear astonishing. Mandatory minimums have come to epitomize everything that is wrong with America’s criminal justice system and with the tough-on-crime course we have charted over the last forty years. Their racial impact, first recognized by the United States Sentencing Commission in 1991, is now thoroughly documented.70 Attorney General Eric Holder cited mandatory minimums explicitly in his 2013 declaration, “Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.”71
And yet, when we take a historical perspective, the passage of Initiative 9 is easier to understand. The term “nonviolent drug offense,” ubiquitous today, was virtually unheard of in 1981. In the years leading up to Initiative 9, the link between drugs and violence had been so tightly drawn that many saw the two as interchangeable. The editors of the Los Angeles Sentinel, for example, promoted the widely held view that drug dealers were directly responsible for what their products did to customers and, by extension, for what those customers did to others. Ray implicitly relied on this view when he cited the crimes of D.C.’s addicts—who, by his estimate, annually stole property worth more than $300 million—as a reason to toughen penalties against distributors.72 Jefferson had done the same in 1980 when he pointed to the mounting violence between groups seeking to control the city’s drug markets.73 Other commentators, such as the Post’s Juan Williams, saw the drug trade’s occupation of public space as a form of violence in itself. In many cases, regardless of their specific rationale for making the drugs–violence connection, writers portrayed drug distribution as a violent crime: “It is just plain stupid to let someone on probation continue to roam free,” wrote Carl Rowan in 1976, “if he is accused anew of crimes like murder, rape, robbery, felonious assault, [or] narcotics peddling.”74 So when Ray and Jefferson decided to combine, in a single ballot question, mandatory minimums for drug selling and for possession of a gun during a crime, they did so based on the common assumption of equivalence between drugs and violence. What many today see as two separate (if interrelated) issues, they insisted were one.
Ray’s exchange with the heckler also reveals a key feature of the strategy that he and Jefferson adopted in their campaign for Initiative 9. The back-and-forth ended with Ray’s emphatic assertion, “There is no excuse for selling drugs.” But Initiative 9 was not asking voters whether they believed drug dealing was excusable; it was asking them to endorse mandatory prison terms. Ray and Jefferson succeeded by erasing the space between excuse and mandatory punishment, and by convincing voters to do the same. Ray’s response to the heckler effectively framed the crowd’s political choice: If they believed that taking over sidewalks to sell drugs to other black people was inexcusable, then mandatory minimums were the sensible answer. Once the issue was defined in those terms, the punitive response was hard to resist.
Opponents of Initiative 9, by contrast, failed to appreciate the exigencies of the moment. In his testimony against Ray’s proposal, for example, the Urban League’s Jerome Page had said, “Crime has always been a fact of life in our poorest neighborhoods,” and he predicted that it would remain a fact of life until the city addressed crime’s root causes: “poverty, discrimination, and lack of opportunity.”75 Most black voters agreed with Page on the importance of these battles—but poverty and discrimination weren’t going away anytime soon.76 In the meantime, a Board of Education member had publicly voiced his fears about entering an elementary school, an armed librarian was leading neighborhood patrols against drug dealers, and council members were deluged with pleas for relief from city residents afraid to walk in their own neighborhoods.
Ray and Jefferson knew that even in the most economically isolated pockets of black America, most people do not sell drugs or commit acts of criminal violence. So while Ray’s response to his heckler—“There is no excuse for selling drugs”—may have fit into an established pattern of middle-class blacks chastising poor blacks for their moral failings, his argument also appealed to working-class and poor blacks.77 Even neighborhoods portrayed by the media as “drug-infested” are always much more than just that: they are crowded, also, with mothers trying to avoid dealers while walking their children to school, small-business owners struggling to keep their stoops clear and their stores open, grandparents wondering what happened to the neighborhood they grew up in, pastors working to keep their congregants safe.78 These people were as indignant as anyone else about crime and public drug markets—perhaps even more so. They and their families were under immediate threat. Ray and Jefferson offered an answer, and in times of crisis, even a bad answer beats no answer at all.
All of which begs the question: What would the best answer have been? The drug trade—in particular the city’s open-air drug markets—had produced a state of emergency, and there was no doubt that addiction was driving crime. But this didn’t mean that addiction had to be labeled a criminal justice issue. What if, instead, D.C.’s leaders had called it a public health disaster?
In 1977, the city’s Narcotics Treatment Administration (NTA) was equipped to treat just one-tenth of the addicts who needed help: 1,250 beds in a city with an estimated twelve thousand addicts.79 And yet, as the drug crisis deepened, the city mostly ignored the question of treatment. In the wake of Initiative 9, the number of beds remained frozen at a fraction of what was needed, and the programs designed to rehabilitate addicts—programs that were few and far between—were underfunded and of low quality. What if Ray and Jefferson had proposed a massive increase in treatment beds, as opposed to prison cells? What if they had worked to eliminate the waiting lists at all clinics and treatment facilities? What if the addict exception to mandatory minimums hadn’t been limited to a person’s first offense, but instead had recognized that many addicts would need multiple chances before getting clean? What if they had pressed for pre- and posttrial diversion programs so that judges could use the threat of prison to compel recalcitrant repeat offenders into treatment? What if police officers had been trained not to arrest addicts, but to refer them directly to treatment? None of this is impossible to imagine: several of these ideas had already been implemented in other cities, and several more have since been tested and proven effective.
The fact that no such proposals were made speaks volumes about the ways in which we as a society categorize drug use. In the debate over mandatory minimums, Ray and Jefferson treated D.C.’s drug epidemic as a law enforcement problem, while their opponents cast it as a symptom of poverty. But nobody approached it as a public health issue. In 1978, for example, Arthur Carter, the publisher of the Afro, wrote to David Clarke to complain about the used syringes in the alley behind the Afro’s building and about the “constant congregation of persons” at Twelfth and U Streets, near the paper’s front door. Clarke forwarded the letter to Jefferson, requesting that patrol officers give special attention to that corner.80 In response, Jefferson assured Clarke that the MPD would handle the problem, writing, “Aggressive investigation and enforcement action shall continue by the Drug Enforcement Unit, and uniformed patrols of the Third District will provide high visibility patrol to deter illegal activities.”81 Carter may have been a more prominent figure than most, but the contents of his letter—and Clarke’s response—were thoroughly typical: council members and their staffs received hundreds of such letters during the late 1970s and early 1980s, and even the most ardent opponents of mandatory minimums, including Clarke, would invariably respond by turning to the police department. (Jefferson would often reply to the council members, offering his assurances and occasionally even reporting the number of arrests and seizures the department had made.) By contrast, I have not found a single instance of a council member forwarding a letter to the head of the Narcotics Treatment Administration. The choice of which agency to call on might seem inconsequential, but the policy consensus it reflected and reinforced was of great import. When an urgent problem required a short-term solution, law enforcement was regarded as the only answer.
When we ask ourselves how America became the world’s greatest jailer, it is natural to focus on bright, shiny objects: national campaigns, federal legislation, executive orders from the Oval Office. But we should train our eyes, also, on more mundane decisions and directives, many of which took place on the local level. Which agency director did a public official enlist in response to citizen complaints about used syringes in back alleys? Such small choices, made daily, over time, in every corner of our nation, are the bricks that built our prison nation.
* * *
Ms. Willis rejected the plea offer. After trying and failing to secure a better one, I was left to prepare for trial. The situation seemed hopeless; I began walking from office to office, peddling my paperwork to senior lawyers, hoping they would find something I had missed. But no matter whom I buttonholed, from our trial chief to our training director, each conversation ended with some version of “Tell me again—what was that plea offer?”
On the morning of the trial, Ms. Willis and I sat outside the courtroom. Ms. Willis did not look well. I couldn’t be sure, and I didn’t know if anyone else would notice, but she appeared to be sleepy. Maybe she was just tired; maybe the stress of a looming court date had been keeping her awake at night. But nodding off was a sign of heroin use, and I certainly didn’t want her doing it in front of the judge. I brought up the plea offer one last time. As lethargic as she was, Ms. Willis stayed firm. She had not changed her mind.
The courtroom, when we finally entered, was brimming with defense lawyers and prosecutors who shuttled in and out negotiating last-minute pleas. The courtroom clerk called case after case, her voice flat and uninterested. Shortly after eleven a.m., after we had waited two hours, I heard her call Ms. Willis’s name. When we got to the defense table, the judge launched into the standard, all-but-scripted routine. The first step was establishing that all parties were present. After opening the case file, he turned to the prosecutor, Bernice Lester, and asked, “Is the government ready for trial?”
Unless an important witness had failed to appear or the prosecutor had suddenly noticed a glaring problem, the answer was typically yes. Sometimes prosecutors would reply, “Ready call,” which in courthouse lingo meant “We are ready in concept, and our witnesses are standing by the phone; we just need to call them over.” Defense lawyers hated “ready call”: we were convinced that the prosecution used it when they weren’t really ready but hoped to buy extra time to find a witness. It was a good strategy, if a manipulative one: in the face of this final bit of pressure, many of my clients caved.
But this time, I heard Bernice Lester say, “No, Your Honor.” She said nothing more. The government wasn’t ready.
I inhaled sharply. “Your Honor,” I said, operating by sheer reflex, “we move to dismiss for want of prosecution.” The judge granted the motion—the standard response when the prosecution offered no extenuating reason for being unprepared—and I immediately grabbed Ms. Willis’s elbow. I wanted to escort her out of the courtroom before our luck was somehow revoked. Ms. Willis moved slowly—a little too slowly, I thought—and I tried to help her along without revealing how desperate I was to escape. But I was just being paranoid: the clerk, the judge, and the prosecutor had already moved on. Before we made it to the door, another defendant was making his way to the counsel table, lawyer at his side. Nobody in the courtroom was thinking about Ms. Willis.
She was eager to go home, and I had another case to attend to in a courtroom down the hall. But there was time for a goodbye hug, and for Ms. Willis to remind me that she’d been right about the plea offer. She claimed she’d had a sense that the police weren’t going to show up. “Knew all along,” she said. I smiled, but I didn’t say the truth: we had no way of knowing why the case was dismissed. On that day, for whatever reason—a missed deadline, a lost folder, a police officer who overslept—Ms. Willis had won the dismissal lottery.
As she turned to leave, she looked at me one last time. “Don’t worry about me, Mr. Forman,” she said, reading my mind. “I’m going to get the help I need.” I really do think she believed those words. But I didn’t. Finding a treatment bed within the criminal justice system was hard enough; finding an affordable option outside the system was next to impossible. Poor people languished on waiting lists for years.
No: Ms. Willis would not get the treatment she needed. As I watched her walk down the hall and out of the building, I knew that what little D.C. had to offer her—what little America had to offer her—was back in that courtroom. And it was police and prison, not help.