LOS ANGELES (FinalCall.com) – Prison activists have marked Governor Arnold Schwarzenegger’s return of sentencing discretion to federal judges a measure of hope in the battle against lengthy, mandatory prison sentences.

SB-40, authored by Sen. Gloria Romero (D-L.A.), was signed into law by Gov. Schwarzenegger Mar. 30. His actions were prompted by the Supreme Court’s Jan. 12 ruling by a 6-3 vote that California’s determinate sentencing law is unconstitutional because it gives judges, not juries, power to uncover facts leading to longer sentences in criminal cases.

Mandatory minimum sentencing laws and harsher penalties for narcotic violations spewed from the Boggs Act of 1951 and the Narcotic Control Act of 1956, both part of the United States’ War on Drugs initiative.


“I have spoken to many Brothers who are under mandatory sentencing who are back in court today and the punishment didn’t fit the crime. Mandatory sentencing, along with the enhancements to stretch people out, is a bit unfair to a person who deserves less,” stated Charles Muhammad, Nation of Islam Western Regional Prison Reform Minister.

“If you’re robbing a bank and you have a gun, the enhancement is whatever the gun carries, and that’s separate from your robbery. Or, if you’re an ex-felon with a weapon, by the time they’re through with you, you could be doing 40-50 years,” he added.

Prison watch groups, like Families Against Mandatory Minimums (FAMM), take the position that the stiffer penalties primarily served to flood the prison industrial complex with Black and Brown bodies, somehow bypassing their intended safeguard to deliver criminal sentencing without regard to ethnicity or color.

“Overall, we don’t think that sentences have been meted equally, particularly when you look at drug offenses, primarily between cocaine and crack sentencing structures. If you have five grams of crack, that’s a five-year mandatory sentence and the judge has no discretion looking at you as a first time, non-violent offender; however, 500 grams of powder cocaine gets you five years,” stated Angelyn Frazer, FAMM’s organizing director. She said that amounts to five packets of Equal sugar substitute versus a five pound bag of sugar. If poised to face a prosecutor or a judge who can determine one’s need for community service, treatment or drug court, she continued, people are in a better place if the judge has that option.

“According to where we are now, in terms of the Bureau of Justice, one in 10 people were in jail for a drug offense in 1983; one in four people were in jail in 2002; 76 percent of those sentenced to state prison in 2002 were convicted of non-violent crime, including 31 percent of drug offenses and 29 percent property offenses. If you look at anyone running for office, especially prosecutors, they like to quote that literature, but where are they getting those prosecutions from? Low level offenders…they’ll go after grandmothers,” she charged.

Ms. Frazer cited race as a definite factor in drug sentencing, especially given the crack epidemic’s impact on urban communities. “It’s not to say that Black and Brown people use cocaine or crack at a higher percentage, but it says that if you are that kid on the corner with no other options– and I make no qualms that people should be punished for what they do, but the extent of punishment is where we have our issue–you are going to be more visible than the guy in his board room or the model or the doctor in a private setting, snorting cocaine. They’re not quite as open as the crack houses on the corner,” she said.

Ms. Frazer exampled Kemba Smith as one in thousands of people unjustly sentenced under the draconian laws, but nonetheless, has led a productive life upon release.

Ms. Smith served time in a federal correctional facility under a 24 and one-half year sentence for her minor role in a drug ring. She is now thriving with her 12-year-old son in Virginia, where she is employed at a law firm. Her Kemba Smith Foundation works to educate people about various issues, including drug and alcohol abuse, gang violence and teen pregnancy.

“I believe this is progress, but unfortunately, progress within this fight comes in small increments which can be very frustrating. For me, frustrating in a sense that even though I have been home for over six years now, why is it that there have been no significant changes? I mean, there are hundreds of Kembas who are in federal prisons serving 10, 20, 30 years, or even life sentences, whom I was serving time with, and should be given a second chance at life, too,” Ms. Smith stated.

Ms. Smith said she was in disbelief and refused to accept that a judge shackled her with 294 months in prison at 24 years old, however, research and self-reflection revealed more. “It was bigger than me, my case and my incarceration. It was about a system that has been in existence since slavery, keeping people of color in bondage and capitalizing off of it. Now is the time that this government really should be focused on ways to keep our families together and alternatives to incarceration that could save taxpayers money, especially if it is a situation that involves a person who has committed a nonviolent offense,” she urged.

As for the Kemba Smiths scattered throughout America’s prisons, their namesake continues her efforts to educate others through her own ordeal with impending book publishing and movie deals. She encouraged, “I’m still focused on the big picture, which is to save lives and to bring some people home out of bondage. The struggle continues.”