Drug justice

Powder cocaine is the drug of choice among the yuppies; crack cocaine is popular on the poor side of town. The disparity in how criminals are punished for using either drug is vast—and controversial.

Criminal-defense attorney Shari Rusk began what would end up being about a 15-hour workday with her usual morning eye-opener, a four-shot espresso at the Starbucks Coffee shop across the street from the federal courthouse building. She would spend much of that day in the federal offices housed there, but for now she had a few minutes to chat with a group of women who also were getting their morning caffeine fix. One of the women was Anne Pings, a federal prosecutor who also spends most of her 9-to-5 in the towering federal building on I Street.

In six days, Rusk and Pings were destined to be adversaries in a San Francisco courtroom, arguing opposite sides in a nationally watched case known as U.S. v. Starks. Pings would represent the federal government, and Rusk would represent a convicted crack-cocaine dealer in a case whose outcome had the potential to significantly change federal criminal law throughout the country by eliminating a punishment disparity that critics say is racist because it results in more severe penalties for crack users than for powder-cocaine users. Twenty years of studies and statistics show that crack users are mostly black and that powder-cocaine users are primarily white.

But on this morning in downtown Sacramento, Rusk and Pings were essentially co-workers, casually talking shop before clocking in.

Rusk agreed to let SN&R spend part of this day with her. When she sat down at a Starbucks table, she was carrying the requisite leather attorney’s satchel bulging with files, with the daily paper jammed in the top, which she set on the floor as she pulled up a chair. She explained that she was running slightly behind schedule because she was up late the night before tending to her 1-year-old daughter, who was running a fever.

After coffee, Rusk crossed the street to the courthouse and spent the rest of the day in a seemingly never-ending stream of meetings with clients, federal prosecutors and investigators. She met with one client who broke down in sobs while describing her assault by an accused pimp. She got a phone call telling her another court-assigned client was threatening suicide. She had a meeting with investigators in a high-profile eco-terrorism case in which she represents one of the three youths charged with conspiring to blow up the Nimbus Dam.

But the argument she’d soon make in the cocaine sentencing case remained at the top of her mind.

The Starks case will challenge key aspects of the controversial 1986 Anti-Drug Abuse Act, a federal law that created a 100-to-1 quantity ratio between the amount of crack and powder cocaine needed to trigger certain mandatory minimum sentences for drug trafficking. The law results in crack users and dealers receiving much harsher penalties than users and dealers of powder cocaine.

In a 2002 report, the U.S. Sentencing Commission, an agency of the federal government, recommended that Congress change the law to lessen the crack/powder disparity. The commission also acknowledged the racial implications of the existing law. “While the commission conceded that it is difficult to empirically study this issue, approximately 85 percent of the offenders sentenced for crack cocaine violations are black (in the year 2000) and that this leads to, at the very least, a perception that the crack/powder disparity is racially motivated,” the commission report said.

For years, Rusk has argued in numerous cases that the 100-to-1 disparity is unfair and unconstitutional, but her protestations have fallen on deaf ears. But a new ruling from the U.S. Supreme Court last year opened the door for a possible revision to the crack/powder sentencing issue. And, by a twist of fate, she ended up with one of the first cases on the subject to percolate up through the court system from the local, district-court level to the 9th Circuit U.S. Court of Appeals.

It is a case she has impatiently waited for most of her career to take on.

Crime and punishments
The case that may help end what many legal authorities believe is 20 years of unfair and racially biased criminal-justice law began in Sacramento almost three years ago, in the parking lot of the Target department store at the corner of Broadway and Riverside Boulevard. On July 29, 2003, police arrested Antonio Starks there after he sold more than 240 grams of cocaine base, better known as crack, to a police informant.

Because Starks had made other sales to the same informant over a four-month period, he was charged with four counts of possession of cocaine base with the intent to distribute. Because Starks could not afford to hire an attorney, the federal court assigned Rusk to represent him, and Rusk negotiated a plea bargain with the prosecutor, Anne Pings. Under the terms of the deal, Starks agreed to plead guilty to one count of conspiracy to sell crack, and Pings agreed to forgo pursuing an extra 20-year sentence that could have applied to the case. Starks initially was scheduled to be sentenced by federal district-court Judge William Shubb on January 12, 2005. But on that same morning, the U.S. Supreme Court issued a ruling in the case U.S. v. Booker. The Booker ruling changed the way federal criminal defendants, including Starks, were sentenced.

Sacramento attorney Shari Rusk represents a convicted crack-cocaine dealer in a case with the potential to change federal criminal law.

Photo By Stephen James

Because of the potential ramifications of the Booker ruling, Shubb rescheduled Starks’ sentencing and asked Pings and Rusk to submit new written proposals as to how they felt Starks should be punished in light of the Booker decision, which literally had thrown into turmoil criminal-sentencing policy across the country. Since the mid-1980s, the punishment of federal criminal defendants had been determined using mandatory federal sentencing guidelines—essentially a fixed sentencing formula that determined the appropriate prison sentence for a given crime. The purpose of the controversial guidelines was to ensure that punishments were uniform throughout the country, and judges were given little, if any, leeway to impose a sentence that deviated from the prescribed specifications.

“Most federal judges don’t like the sentencing guidelines, and some have resigned over it,” Rusk explained. “Even fairly right-wing Republicans have complained because it takes away their judicial discretion and forces them to sentence under this formula that might not fit the case.”

Before entering private practice in 1999, Rusk spent seven years in the federal defenders office in Sacramento and one year of that as a consulting attorney to the U.S. Sentencing Commission. As soon as it was announced, Rusk felt that the Booker ruling could have far-reaching implications. “It turned out that the federal sentencing guidelines resulted in much harsher sentences than were imposed before the guidelines, so it’s really been a bad system,” she said. In the Booker case, the Supreme Court ruled that the federal sentencing guidelines were unconstitutional because they allowed a judge to increase a prison sentence using factors that weren’t decided as true or untrue by a jury, or confessed to by a defendant. The court concluded that the sentencing guidelines should be considered advisory instead of mandatory, which meant that federal judges now had leeway to impose a wider variety of sentences tailored to the unique circumstances of each case.

On March 23, 2005, Starks’ rescheduled sentencing hearing began with Shubb foreshadowing that his decision about how to punish the defendant wasn’t going to be the quick process normally used on a defendant who had pleaded guilty. Starks, who was being held in the county jail, was brought into the courtroom. “Why don’t you have Mr. Starks take a seat for now, because we may spend a little time here,” Shubb said, according to the transcript of the hearing. Shubb opened the discussion with the prosecution and defense attorneys by acknowledging that the punishment options in the case would have to be looked at using the new standards required by the Booker case. This meant that reducing the crack/powder sentencing disparity from 100-to-1 to 1-to-1 or anything in between could be considered as a factor in deciding on the prison sentence. Both attorneys had submitted written arguments detailing why they believed Shubb should or shouldn’t deviate from the sentencing guidelines. The judge said he had read the submissions but that he was disappointed with the prosecutor’s argument.

“I was hopeful of getting a little more background from the government as to the reasons for these disparities,” he said. “The first part of the government’s memorandum seems to amount to a lecture on why judges should be faithful to the guidelines, and the second part is pretty much a summary of the findings from the legislative history as to the reasons for punishing crimes involving crack cocaine more harshly than powder cocaine.” The legislative history Shubb referred to consisted of the 20-year-old justifications that Congress gave for enacting the original 1986 law, which the judge knew had been called into question in the intervening years. Shubb seemed surprised that the government offered nothing new and implied that he was more persuaded by Rusk’s arguments that Starks should be sentenced to less time in prison than the guidelines called for. “All of the discussion favors the defense argument,” he said.

Shubb went on to say he had carefully reviewed a similar case from a federal district court in Wisconsin that had been decided just three weeks earlier. In that case, U.S. v. Smith, the defendant was convicted of possession with intent to distribute more than 50 grams of cocaine base and faced an initial prison sentence of 121-151 months. Taking into account a number of factors, including the defendant’s cooperation with the government, family and community ties, and employment history, Judge Lynn Adelman sentenced Smith to 18 months in prison and five years of probation. In her written ruling, Adelman did an exhaustive analysis of the history and current status, after the Booker case, of the crack/powder disparity issue and based her sentence, in part, on a 20-to-1 ratio instead of 100-to-1. “[After the Booker case] district courts need no longer blindly adhere to the 100-to-1 guideline ratio,” she wrote.

Adelman meticulously recounted the origin of the law, noting that since it was enacted in 1986, the primary reasons for the law originally espoused by Congress have been disproved outright or shown to be exaggerated. “Even the expert who testified before Congress before it adopted the 100-to-1 ratio acknowledged the absence of reliable evidence indicating that crack was more addictive or dangerous than powder. Since then, other prominent experts have opined that crack is not more dangerous than powder—in fact, the converse may be true—and that crack is not physically more addictive, though it is possibly psychologically more addictive. The Commission’s most recently obtained evidence confirms that the disparity in penalties is disproportionate to any reasonable assessment of crack’s harmful effects,” Judge Adelman wrote.

The 100-to-1 ratio
Shubb seemed persuaded by the analysis of his peer, which was unrelenting in taking the disparity issue to task. “Courts, commentators and the Sentencing Commission have long criticized this disparity, which lacks penalogical or scientific justification and creates a racially disparate impact in federal sentencing,” Adelman wrote. Adelman pointed out that because the law was rushed through Congress after the sudden death from a cocaine overdose of basketball star Len Bias, it was even difficult to determine what Congress originally had intended.

“The legislative history, such as it is, contains no rationale for the 100-to-1 ratio; legislators suggested other ratios—50-to-1 and 20-to-1—but Congress rejected them. A former staff member of the House Judiciary Committee characterized the process as ‘the crassest political poker game,’ ‘I’ll see your five years and I’ll raise you five years,’” she wrote, citing research from a 1996 law-review article. Adelman also noted that research by the U.S. Sentencing Commission found that the law did not ensnare high-level drug traffickers as originally intended, but instead mostly impacted street-level dealers.

“The result is that local-level crack dealers get average sentences quite similar to intrastate and interstate powder cocaine dealers; and both intra- and interstate crack dealers get average sentences that are longer than international powder cocaine dealers,” she wrote. “As is now notorious, the guidelines create a 100-to-1 ratio between crack and powder cocaine,” she said. “In other words, the guidelines treat possession of 50 grams of crack cocaine the same as they treat possession of 5000 grams (5 kilograms) of powder cocaine.” Judge Shubb appeared to concur with Adelman’s logic and result. “Judge Adelman has a very well-reasoned discussion supporting her conclusion to sentence the equivalent of a ratio of 20-to-1 rather than a ratio of 100-to-1,” he said.

Pings, however, was insistent and stuck to her claim that modifying a sentence solely because of the 100-to-1 sentencing disparity would be contrary to the intent of Congress when it enacted the law and that in order to deviate from the sentencing guidelines, a judge would have to have a unique reason that would apply only to one defendant at a time. “It should be an individualized reason that has to do with the defendant and the case that’s before the court at this time,” she said. “It should not be a blanket reason that the guidelines are wrong.”

Rusk countered that there were individualized factors in the case, such as Starks’ family responsibilities, which included providing for his fiancée and 8-year-old daughter. In her written argument to the judge, Rusk recounted her client’s childhood growing up in a home where both his parents were cocaine abusers who were incarcerated when Starks was about 14 years old. “By age 15, he was placed in a group home through the juvenile court system. The young Mr. Starks was whipped with belts and extension cords as a form of discipline,” she wrote. “Unsurprisingly, out of this environment Mr. Starks was ultimately convicted of selling cocaine base to an informant.” Rusk also pointed out that Starks, who was 28 years old at the time of the hearing, had not been arrested since 1999 and had never had an offense involving a weapon or assaultive behavior.

Pings came back with her own individualized factors, reminding the judge that the defendant had had 12 prior criminal cases from the age of 12 to 22, including two and possibly three for selling crack. “This is not a defendant who this is his first chance, this is his second chance, this is his third chance,” she said. “He’s been selling crack cocaine since the age of 14. This is the type of defendant that deserves the harsh punishment, not the type of defendant that deserves the exception,” she said. In her written argument, Pings said that if the judge deviated from the guidelines in the Starks case, he would have to do it in every case. “Unless the court is prepared to reduce the sentence of every crack cocaine defendant, it would be logically inconsistent to do so in this one case,” she wrote.

Law-school professor Mark Osler, a former federal prosecutor representing the American Civil Liberties Union, came all the way from Texas to help Rusk argue the drug-sentencing case.

Courtesy Of Mark Osler

Shubb agreed with the prosecutor on several points. “The defendant’s criminal background is deplorable,” he said. “He is not deserving of special treatment that others engaged in the sale of crack cocaine do not get.” The judge indicated that he was nonetheless troubled by the basic crack/powder-cocaine disparity issue and the class and racial baggage that came with it. “Powder cocaine is the drug of choice among yuppies, dot-comers, and movie stars in Beverly Hills, whereas crack cocaine is the drug of choice in the ghetto,” he said. Shubb said that if he diverted from the sentencing guidelines and the 100-to-1 ratio in the Starks case, it would in fact be appropriate to do the same for the defendants in similar cases.

But further complicating Shubb’s decision was the fact that both attorneys had stated, as diplomatically as possible, that they intended to appeal any ruling not in their favor to the judge’s boss, the 9th Circuit. Confronting the inevitable appeal of his yet-to-be-made decision, Shubb indicated he would impose the sentence the prosecution wanted and await the outcome of an appeal by the defense. But his frustration and reservation with the decision showed. “I don’t know what the 9th Circuit is going to do, and it doesn’t make much difference what this court says,” he said. “I urge the defendant to appeal from this sentence … and the 9th Circuit may consider whether this court would properly and lawfully be permitted to deviate from the sentencing guidelines simply because it disagrees with the reasonableness of those guidelines.”

If the higher court agreed with the defense’s argument, Shubb knew it would send the case back to him for re-sentencing, and he indicated that he would then recalculate Starks’ sentence using the analysis and rationale that Judge Adelman had used in the Wisconsin case. “[I] would conclude, as did Judge Adelman … that the 100-to-1 ratio is not reasonable,” he said. A ratio of less than 100-to-1 would have lessened Starks’ time in prison by about 31 months, according to Rusk. “[Starks] wanted to fight for those 31 months,” she said. More importantly, a ruling using a lower ratio would set a benchmark that could be used in future cases, she said.

Shubb then sentenced Starks to 151 months in federal prison, followed by 60 months of parole, known formally in the federal system as supervised release. “It is the Court’s intention to authorize Mr. Starks to appeal from his sentence,” the judge emphasized a final time. “If you cannot afford the costs of an appeal, you’ll be permitted to proceed without the payment of costs,” he told the defendant.

Rusk took the judge up on his offer and filed the appeal in the 9th Circuit less than a week later.

No leg to stand on
Rusk submitted her written arguments to the 9th Circuit in January and began preparing the oral argument she would give to the three-judge panel that would hear the case in June in San Francisco. She was confident that the 100-to-1 sentencing law, which she said even many federal prosecutors privately concede is unfair, finally would be corrected. “So, after years of [prosecutors] saying, ‘Yeah, it’s unfair, but that’s the guidelines,’ well, now the guidelines aren’t mandatory, and now [prosecutors] say, ‘That’s OK. Impose 100-to-1 sentence anyway.’ So, I don’t really think they have a leg to stand on,” she said.

The American Civil Liberties Union (ACLU) got involved in the case and submitted a friend-of-the-court brief to the 9th Circuit in support of Rusk’s client. The ACLU brief was written by Baylor Law School professor Mark Osler, a former federal prosecutor turned academic who also agreed to help with the oral argument in the case. In their brief, Osler and the ACLU argued that after the Booker case, Shubb had the authority to deviate from the mandatory guidelines and the 100-to-1 ratio in determining Starks’ punishment—and that if the 9th Circuit affirmed the judge’s decision, it effectively would create a new law limiting the power of all lower-court judges in the nine-Western-state jurisdiction of the 9th Circuit to exercise their own judgment and deviate from the sentencing guidelines. Osler and the ACLU had submitted similar briefs in four other crack-cocaine cases that had reached federal appellate courts in other circuits at roughly the same time.

Pings and the federal government took a different approach. In their written brief, they urged the 9th Circuit to deny the appeal without even considering the sentencing arguments, because in the original guilty plea deal with Starks, the defendant had waived his right to appeal the conviction. In general, all federal plea agreements contain boilerplate language restricting a defendant’s ability to appeal a sentence after a guilty plea. But since Shubb had encouraged and explicitly authorized Starks’ appeal to the higher court, Rusk considered the government’s argument to be the legal equivalent of a hail-Mary pass. She submitted a written reply to Pings’ brief, pointing out that the appeal restriction in the plea-bargain agreement was unenforceable because Shubb had consented to the appeal, and even Pings had tacitly agreed to an appeal of the sentence, since she had never raised the issue at the sentencing hearing. Pings told SN&R that she couldn’t comment on the case, but she did say that she was surprised that the ACLU had gotten involved in a case involving a local drug dealer with a long record.

But when the oral arguments began on the morning of June 13, what Rusk had assumed would be a long-shot argument by Pings became the main issue. “It was very disappointing,” said Rusk. “All [the judges] seemed to care about was the appellate-waiver issue; they really didn’t seem to care about the meat and potatoes at all.” At an oral argument, each side is usually given 20-30 minutes to argue its case, but it first must address any questions presented by the judges, and any time it takes to answer those questions is deducted from the time allotted for the attorney to argue the case. After all the time she’d spent preparing to argue the 100-to-1 disparity issue, Rusk didn’t get the chance. “[The judges] used up more than my time asking about the appellate waiver, without even getting to the real issues, so that sucked,” she said.

Osler was surprised, too. “I think that the judges on that panel had a lot of questions about an issue that I didn’t anticipate they’d have questions about, which is the waiver issue,” he said. The professor was able to use his allotted oral-argument time to talk about the crack/powder disparity issue. But he didn’t want to speculate on how the judges might rule. “I’m kind of hesitant to say anything about something that’s under review by the judges right now,” he said.

Although the 9th Circuit isn’t expected to issue a ruling for several weeks, Rusk anticipates that the court will side with the government and deny the appeal because of the waiver issue. She suspects that that was its intent even before the oral arguments took place and that it never intended to sincerely consider the disparity issue, an approach she characterized as intellectually dishonest. If the court issues the decision she expects, she will file another appeal, requesting an additional review by all the judges of the 9th Circuit.

Rusk has had cases reach the appellate level before and seems to be taking the expected rejection in stride, although she feels annoyed that Osler’s time and effort were essentially wasted.

“It doesn’t look like they read the reply brief, much less the [ACLU] brief that Osler worked so hard on,” she said. “He came all the way from Texas to argue this thing, and we met the night before and were really psyched about it,” she said. She feels the affront reflects poorly on the professionalism of the judges. “Why have this guy fly out from Texas and do a [friend-of-the-court] brief if they really don’t care about the issue?” Osler has now argued the same issue with other attorneys before federal appellate-court judges in three different jurisdictions, and he was impressed by Rusk. “I’d say that having had these three cases in the court of appeals in the last couple of weeks, she was the most engaged and informed of the defense attorneys that I worked with,” he said. “She was certainly the most knowledgeable about the issues, the Booker [case] issues.” Rusk has a cousin in San Francisco and had brought her parents and her kids on the business trip. “I know that they were staying in the hotel with her,” Osler added. “I mean, I’ve got little kids, and I can’t imagine going to do an argument and being up with the kids all night. But she’s a special person.”

Back at the federal courthouse in Sacramento the week before her trip to San Francisco, Rusk left downtown and picked up her 5-year-old son on the way home. After dinner with her family, she went back to work at her home office, preparing for a bail hearing in the eco-terrorism case, tried to call her mentally disabled client who was threatening to kill himself, and did some last-minute research on the Starks case until 1:30 a.m. when she went to bed. She didn’t know then that her work on the case that she had hoped would help correct a nationwide criminal-justice-policy disgrace would instead get a hostile reception from the 9th Circuit.

An overachiever who graduated high school when she was 15 years old, Rusk has been waiting since the Reagan administration to see the 100-to-1 policy corrected. “From that time on, sensible people were trying to say, ‘Wait a minute. There’s no other situation in the history of drug prosecutions where there’s a 100-times-more-severe penalty for the same drug in a different form,’” she said. “I mean, you have to have powder to make crack; you rock it up. And then it turns out the people who are rocking it up tend to be minorities, and they’re getting these harsh mandatory minimums.”

She is also frustrated that judges, most of whom complained when they were told they would have to follow the sentencing guidelines 20 years ago, now seem reluctant to take back their ability to dispense punishment using their own professional judgment and discretion. “For the last 10 months since the Booker case, defense attorneys like myself have been arguing for lower sentences, and the government is acting like those guidelines are still mandatory,” she said. “It’s pretty hard to get through to judges that they actually have the power to do this.”

Legal experts have pointed out that current proposals in Congress designed to mitigate the so-called methamphetamine epidemic are significantly different from the laws passed in response to the crack epidemic of 20 years ago. A recent article in Congressional Quarterly Weekly explores the tacit racial implications, since crack is regarded as a black drug, and meth is regarded as a white drug, in the two approaches. Check the Sentencing Law and Policy blog for more info at http://sentencing.typepad.com/sentencing_law_and_policy/2006/06/noticing_differ.html.