William R. Underwood was a 17-year-old father living in New York City when former President Richard Nixon declared a “war on drugs.”
He admits he chose to sell drugs to earn a living – a move that at 34, landed him in federal prison to serve a life without the possibility of parole and a concurrent 20-year sentence for a violent drug offense.
“From the beginning of my incarceration, I was surrounded by other men of color serving lifelong and other extreme sentences, including for drug offenses – handed down under a mandatory minimum sentencing structure that never accounts for an individual’s growth, rehabilitation and transformation while incarcerated,” said Underwood, now a senior fellow with the Sentencing Project, at a House hearing on Thursday – the 50th anniversary of Nixon announcing the strict drug policy.
“10 years is long enough to be able to reevaluate someone’s growth and rehabilitation, and to begin to consider their release,” he added. Underwood, now 67, was granted a compassionate release in January. The judge, according to Underwood, ordered his release based on the person he has grown to be in the present, not by who he was 33 years ago.
Underwood’s testimony, along with that of seven other legal advocates and scholars at Thursday’s hearing, comes amidst several recent proposals on Capitol Hill to reform drug sentencing and address some of its historical racial inequities.
“While it’s called the war on drugs, its disparate impact over the decades has made clear that this is actually a war on the poor, a war on inner city youth, and a war on Black people and other communities of color,” Underwood wrote in his prepared remarks. “Life sentences do nothing to promote public safety, and only perpetuate cycles of poverty and trauma.”
“Congress must be bold to effectively repair the damage wrought by these overly excessive penalties,” Democratic Rep. Sheila Jackson Lee, the chair of the Judiciary Committee’s Crime, Terrorism and Homeland Security subcommittee, said during her opening remarks, referring to the Nixon policy.
Proposed bills to reexamine the drug laws and call for sentencing reform
Democratic Reps. Cori Bush of Missouri and Bonnie Watson Coleman of New Jersey introduced legislation Wednesday that calls for federally decriminalizing all drugs. The bill also proposes to hold sentencing review hearings for individuals convicted of certain drug offenses. The legislation would also put regulatory authority in the hands of the Health and Human Services Department, rather than the Department of Justice.
“A health-based approach to drug use and overdose is more effective, humane and cost-effective than criminal punishments. Subjecting people to criminal penalties, stigma, and other lasting collateral consequences because they use drugs is expensive, ruins lives, and can make access to treatment and recovery more difficult,” reads the bill, entitled the Drug Policy Reform Act.
There are more than 1.4 million arrests in the US for drug-related offenses every year, according to the legislation. Drug possession is the most serious offense in more than 85% of those arrests, the legislation notes.
“I lived through a malicious marijuana war that saw Black people arrested for possession at three times the rate of their white counterparts, even though usage rates are similar,” Bush said in a statement announcing the legislation. “As a nurse, I’ve watched Black families criminalized for heroin use while white families are treated for opioid use. And now, as a Congresswoman, I am seeing the pattern repeat itself with fentanyl, as the (Drug Enforcement Administration) presses for an expanded classification that would criminalize possession and use.”
“The United States has not simply failed in how we carried out the War on Drugs - the War on Drugs stands as a stain on our national conscience since its very inception,” Watson Coleman added in a statement.
In fiscal year 2020, 6,455 people were given a 10-year mandatory minimum sentence for drug trafficking, which included 4,797 Blacks, Hispanics or offenders that identified as “other,” according to the US Sentencing Commission’s Interactive Data Analyzer. The Commission is a bipartisan and independent agency that “collects, analyzes and distributes a broad a broad array of information on federal sentencing practices,” according to their website.
The legislation Bush and Watson Coleman introduced this week isn’t the only recent attempt to reform drug policy. Democratic Reps. Hakeem Jeffries of New York and Bobby Scott of Virginia, along with GOP Reps. Kelly Armstrong of North Dakota and Don Bacon of Nebraska, introduced legislation in March that would proactively eliminate the federal crack and powder cocaine sentencing disparity, while retroactively applying it to those already convicted or sentenced for drug crimes involving crack and powder cocaine.
“There is no pharmacological difference, no chemical difference and no physical difference between how the body processes crack cocaine and powder cocaine. Crack cocaine has historically been used in inner-city communities and powder cocaine in affluent neighborhoods and the suburbs,” Jeffries said in a news release announcing the bill. “Put simply, the dividing line is race and geography. That does not justify the wide disparity in sentencing.”
According to a report by the US Sentencing Commission, nearly 81% of crack cocaine trafficking offenders in fiscal year 2019 were Black, while about 13% were Hispanic, about 5% were White and 1% were identified as “other races.” And yet, historically, 66% of crack cocaine users have been White or Hispanic, according to a report from the Families Against Mandatory Minimums.
Rep. Madeleine Dean, a Pennsylvania Democrat, said she knows firsthand the “unfairly fair” treatment of her middle son who had an opioid addiction and was never arrested.
Dean, who is White, said that nearly nine years ago, her son “was falling deeply into addiction stopped by the police, many times, and as he says to us in our family, he was treated unfairly fair,” noting that he didn’t spend time in jail and wasn’t separated from his daughter. “He was treated unfairly fair. It is time we recognize that.”
Advocates’ suggestions on sentencing reform
California Democratic Rep. Ted Lieu went after mandatory minimum sentences in the hearing.
“I just want to first say that mandatory minimum sentences are stupid, and they’re stupid because we stupidly force every fact pattern, every case into these rigid little boxes that don’t reflect reality,” he said.
A former prosecutor for the US military, he said that “the whole reason we have judges and juries and prosecutors and defense attorneys, instead of robots and computers, is to provide individualized justice for each unique case. Mandatory minimums strip that away.”
Marta Nelson, a senior fellow with the Vera Institute of Justice, gave seven legislative changes that could reduce the prison population by 80%. The Institute’s suggestions include removing sentencing enhancements based on prior conviction records, creating a maximum incarcerated sentence of 20 years for the most serious crimes, significantly expanding opportunities to earn good time off of sentences and abolishing mandatory minimums.
Underwood said he hopes the discussion will move lawmakers to understand “why each and every one of us, when given the chance, can be better than the worst thing that we have ever done … we all deserve a second chance.”