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interview: michael s. gelacek


photo of michael s. gelacek

Gelacek served on the U.S. Sentencing Commission from 1990 until 1998, and served as its Vice Chair from 1994-98. Currently, he is practicing law in Washington, D.C. During his tenure, the Sentencing Commission issued a recommendation that penalties for crack and powder cocaine be equalized to remedy what many saw as an unfair disparity in sentencing. Congress rejected this recommendation. This is the edited transcript of an interview conducted in 2000.
In 1986, what was happening with cocaine and crack?

You had people talking about the allegedly tremendous amount of violence surrounding the crack cocaine traffic. You had a hysteria built up that politicians have to respond to. And they did. Their response was to turn to tougher sentencing. Look at quantities of drugs and try to disassociate what was actually going on from the quantities. What we wound up with was an awful lot of people going to jail. And that's still going on. . . .

There was a lot of association of crack to violence. But when we looked at it, what we found is what's true with any new drug that comes on the market. The violence that's associated with the drug is not people who use the drug going out and committing crimes on innocent bystanders, although some of that occurs. Most of the violent crimes associated with crack cocaine had to do with setting down trafficking patterns, and who was going to stand on what street corner. Once that settled out, the violence died down.

There was a lot of bad information that went around, and it all hit at the same time. And the media was part of that; the politicians were part of it. Everybody was part of it. There was a genuine concern, with a lot of bad information. What I fault the politicians for is, now that they know the facts, now that they've looked at the outcome, they won't do anything about it, and it's just not fair. Crack cocaine penalties and sentences surrounding them are not fair.

How were crack sentencing guidelines developed?

If you go back and look at the Congressional Record, you'll see that they tossed around all kinds of numbers for ratios. They ultimately settled on a 100-to-1, and I don't remember where that came from. I think they plucked it out of the sky. They talked about 20-to-1, 50-to-1, 25-to-1. In the initial ratios between powder and crack cocaine, no one talked about 100-to-1. That came about as a one-upsman contest between the House and the Senate--who could be tougher on crack cocaine. And they both proved they could be very tough.

What was the goal of mandatory minimums?

If you talk to people in the federal judiciary, there was a tremendous amount of resistance to mandatory minimums and sentencing reform in the judiciary. Judges will tell you, "Look, I'm fair in the way I sentence people. It doesn't make any difference whether you're black or white." And to a large extent, that was true.

Our response to everything is, 'Put somebody in jail.'  There are better ways alternatives to incarceration that we ought to try. . . . There was a cultural bias in sentencing in this country. That's what led to sentencing reform. Reform took the course of mandatory sentencing--mandatory minimums, everybody goes to jail. We wanted honesty in sentencing. We wanted the public to no longer worry about how long somebody actually went to jail for if they got a ten-year sentence, they did ten years. What we wound up with is a sentencing system that's based on quantity and conspiracy in the drug area, and that leads to enormously lengthy sentences. You can go to jail for life in this country very easily. . . .

Where we've taken drug penalties is absurd, in my estimation. It's not fair. We've gone to punishment as a first resort in this country. It ought to be the last resort. The last thing we should do is take someone's freedom away from them. I know they committed a crime. I know they're criminals, but we don't need to lock up everybody that's involved in the drug trade. They're not a danger to society. There are ways to deal with some of these people other than locking them up.

We know treatment works. We don't spend a lot of money on treatment. We know that education works. We don't spend a lot of money on education. One thing we know that doesn't work is incarceration. We don't cure anybody by putting them in jail. All we do is take them off the streets. It's a pretty effective deterrent for one individual, and it makes people feel safer about whether or not that person is going to be back in their community, but it doesn't change anything.

You could sit around in a social setting at a bar with your friends and find yourself taking a ride from a friend of a friend, who happens to have 50 kilos of cocaine in his trunk that you know nothing about. You get stopped because the DEA or someone's been watching this individual. And, lo and behold, you're in the car with your friend and the driver, and there's 50 kilos of cocaine in the trunk. Now, you didn't have anything to do with it. You didn't even know it was there. But the way the sentencing system in this country works, we give people credit for substantial assistance to the authorities. The driver's going to say that you were part of the conspiracy, because he's going to want to do everything he can do to reduce his sentence. Your friend will probably claim you were a part of it if he knew about it or she knew about it. You're left holding the bag. And if you're holding a bag for 50 or more kilos of cocaine in this country, you're going to go to jail for a long, long period of time....

· For more about the process by which drug defendants bargain to decrease their sentences by providing law enforcement with information on the drug trade, see the web site for FRONTLINE's "Snitch."

What is an example of the effect of mandatory minimums?

The Curry case in Washington. A young man who was a basketball player got involved in a situation where he had absolutely no idea what was going on. Knew virtually nothing, and he's a little bit intellectually challenged. He got involved with some people that were trafficking in narcotics. When that conspiracy was broken up by the authorities, he got the full weight of all the drugs involved and is doing some 20, 25 years in the federal jail now.

It's a sad story, because he really didn't know what was going on. He did the stupid thing; people do stupid things. You shouldn't have to go to jail for 20 years for being stupid. . . . Look at how we deal with murderers and everybody else in this country. Violent offenders get out quicker than low-level drug dealers do. That's not right. . .

I can't tell you the number of politicians that I've sat with who, in the privacy of their office will say, "This is just not right. We know it's not right. But, politically, there isn't a whole lot we can do about it because everybody wants to be tough on crime. Until the public attitude changes, we're not going to change." I just wish there was more courage involved in the drug area because we need to change this. . . .

Whoever's got a lawyer or whoever has some street sense, there's a race going on to see who can get to the prosecutor first to roll over on as many people as they can, because they're going to get the biggest break. They might not even go to jail. The real reason why quantity-driven guidelines and conspiracy laws are absurd is because it focuses law enforcement's attention on the lowest level of the drug trade, the guy standing on the street corner. And law enforcement will tell you that, "Well, that's why we arrest those people, because we want to work our way up the chain." That's okay, if you want to do that. But the penalties ought to be based upon what your role in the conspiracy was. If you're just dealing in two or three nickel bags, that's what you ought to be charged with. That's what you ought to be penalized for. . . . The Sentencing Commission did a public opinion survey, three years ago, maybe. We found that people wanted to be tough on crime but what they thought was tough and what the guidelines was tough were two different things, particularly in the drug area. . . .

What is your assessment of the costs of the current prison situation?

The prison population is out of control. We can't build jails fast enough. The cost is astronomical. What's scary about the prison problem in this country is that it's becoming a business. We're putting prisons online every month in this country. Sooner or later, the public is going to understand that it costs a tremendous amount of money to keep these people in jail for long periods of time. . . . Law enforcement does not focus on people who traffic in powder cocaine. They're still not going to be out chasing around the suburbs or the boardrooms of corporate America or anyplace else. . . .

The other thing we know is that treatment works in the drug area. But our response is, "Lock 'em up." Our response to everything is, "Put somebody in jail." There are better ways to go about it, and there are cheaper ways to do it. There are alternatives to incarceration that we ought to try. . . .

Is our treatment of drug offenders related to race?

The commission issued a report that said that there was no intent to create a racial impact. There is a racial impact. It is discriminatory. Ninety-five percent of the people that go to jail for trafficking in crack cocaine are either black or Hispanic. The majority of them are black, probably ninety percent of them. And there's another five percent that are Hispanic. And I want to tell you, if it were the other way around, if ninety-five percent of the people doing five years or more in jail for trafficking in crack cocaine were Caucasian, we wouldn't be sitting here talking about it, because the law would have never passed in the first place or it would have been gone a long time ago. . . . You don't have to be a rocket scientist to figure out that there is a racial overtone. And we haven't done anything to change that. I don't think Congress sat down and said, "This'll really impact on the black and Hispanic community." But the fact remains that it does.

There's a logical reason for that. It's the best use of their resources. If you can go to an urban area and go to a narcotics trafficking area and make ten arrests in one night, that's what you're going to do. You're not going to go out to Great Falls, Virginia. There's just as much drugs in suburban America and rural America as there is anyplace else. But where you have to spend months trying to figure out where those drugs are and who's dealing in them and chasing around to different people's homes, it costs a lot of money in resources to do that. So nothing will change. . . .

What was the Sentencing Commission's recommendation for crack sentencing?

The commission recommended that we equalize penalties for crack and powder cocaine. That would have meant that if you trafficked in 500 grams of powder, you get five years. If you trafficked in 500 grams of crack you get five years. Same ratio.

How rare is it for Congress to overturn a commission's recommendation?

It's only been done once. Of all the amendments that have been sent to Congress--and there have been some 500 or 600 amendments to the guidelines since their inception--they've only rejected them once. . . . They were willing to step on our suggestions in changing the crack cocaine penalties. It only happened once, and probably will never happen again because they leave the amendment process pretty much alone and accept the view of the Sentencing Commission. That's why they put those people in place. This one was just so politically charged that they didn't feel they could go along with it. . . .

It's significant that Congress rejected the amendments in the crack cocaine area, because they'd never done it before. They allowed the Sentencing Commission to function as a body of experts and bring that expertise to bear upon the system. . . . By rejecting the Commission's recommendations in the crack cocaine area, in many ways, it becomes a useless exercise, because the message that is sent is, you guys are okay in the sentencing area as long as we agree with what you're doing. Well, sometimes you have to be in front of the train. Sometimes you have to lead the public's opinion instead of reacting to it. . . .

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