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‘Punishment is not the same’

News-Sun - 6/27/2018

Megan Shoults was arrested in 2015 for possession of opioids with intent to sell within 1,000 feet of First Baptist Church of Lawtey.

With the drug-free zone infractions, the 25-year-old white woman faced a minimum of nearly 19 months in prison.

But Luis Bustamante, Bradford County’s top prosecutor, dropped the enhancement. Shoults agreed to plead no contest and was sentenced to probation.

Law enforcement officers arrested Juliette Wynne for opioids near the same church that same year. She was looking at a minimum of 13 months.

Again, the prosecutor chose not to pursue the drug-free zone charge against the 29-year-old white woman. She received seven months in county jail.

Bustamante did not negotiate down the same enhancements for Demetria Slocum and Quincy Harris.

Both were arrested in 2015 for selling marijuana — a far less dangerous drug than opioids — within 1,000 feet of a drug-free zone. The two black defendants pleaded to avoid trial.

Slocum got six months for her crime. Harris got 12.

“It’s disparate for sure,” said Alan Bushnell, an attorney who represented Wynne and who handles cases for the public defender when there’s a conflict of interest. “There are churches and schools everywhere. But because law enforcement targets black neighborhoods, it becomes easy enough for them to get that enhancement. And in my experience, prosecutors will use that leverage because they can.”

With enhancements as a bargaining chip, advocates for reform say the increased prosecutorial leverage can lead to inequitable plea deals.

“You put yourself in a better position to force a plea,” said Lisa Graybill, the deputy legal director for the Southern Poverty Law Center. “When you look at how it’s implemented, whether it was intended or not, it’s disparate.”

Each drug-free zone creates an area the size of 68 football fields.

In Bradford, these zones cover much of the black community, where public housing or churches occupy almost every block.

The zones begin to dissipate where properties have more acreage, homes are newer and owners are white.

“I’m not saying all these black kids are innocent, because they do break the law,” Rev. Esther Kelly said. “But the treatment is not the same. The punishment is not the same.”

‘You can’t ?eliminate ?discretion or bias’

The war on drugs has always been about race.

In the 1800s, it was fueled by fears that Chinese immigrants were bringing their addictive opium to America.

In the early 1900s, blacks were labeled “Negro cocaine fiends.”

By the Great Depression, it was lawless Mexicans stoned on marijuana.

When Presidents Nixon, Reagan and Clinton ramped up the war on drugs to curb violence from the crack trade, minorities were again the targets. Mandatory minimum sentencing laws that came with tougher penalties were the answer.

Across Florida, blacks convicted on a mandatory minimum for drugs spend 39 percent more time in lockup than whites who scored similar points at sentencing , DOC records show.

In Gainesville’s 8th Circuit, it’s 126 percent more time.

In Lake City’s 3rd Circuit, it’s 111 percent.

“Everyone is going to prison for murder, and everyone gets probation for lower-level property crimes,” said Ojmarrh Mitchell, an associate professor of criminology at the University of South Florida. “Drug offenses are right in the middle — and race can actually push the pendulum one way or another.”

Spurred by Miami’s cocaine cowboys, the Florida Legislature adopted mandatory minimums for narcotics in 1979 and continued to tweak the rules over the years based on weight thresholds.

At the time, racial inequalities were rampant in the criminal justice system, and supporters of mandatory minimums touted them as a way to bring fairness to sentencing. Early proposals gained support from the Congressional Black Caucus.

Today, mandatory minimums continue to draw support from most prosecutors, who praise them as an essential tool to secure drug convictions — enabling them to speed the conclusion of cases by first threatening the mandatory minimum and then negotiating reduced charges.

A report from the Florida Senate in 2009 found that mandatory minimums magnify the role of the prosecutor, stripping discretion from judges — whose hands become tied from sentencing below the floor set by the policy.

The study also concluded mandatories have captured many lower-level drug offenders and those using drugs for personal recreation — not members of the violent cartels.

“Possession is treated like trafficking in many instances in Florida law,” said Sen. Jeff Brandes, R-St. Petersburg. “You can be an addict and get caught up in the same mandatories we use for kingpins. These laws often don’t afford judges with the same power as prosecutors who can downward depart as they cut plea deals.”

‘It can be ?unfair at times’

Florida lawmakers continue to emphasize mandatory minimums and other stiff punishment.

Rep. Jim Boyd, R-Bradenton, and Sen. Greg Steube, R-Sarasota, sponsored a new mandatory minimum law last year for fentanyl distribution. The legislation also opened the door for fentanyl dealers to be charged with murder if their customers die from an accidental overdose.

The measure passed the Senate by just one vote on the way to Gov. Scott, who signed it into law during a press conference in Sarasota.

Florida Attorney General Pam Bondi, who also serves on a White House task force to combat the opioid crisis, called the fentanyl bill her “top priority” last spring.

Steube pointed to the state’s mounting death toll. He said it’s more about the lethality of fentanyl than it was about being punitive.

“We’re talking about a substance where four specks of salt can kill a human,” said Steube, whose father is a former sheriff of Manatee County. “With the epidemic we’ve seen in Florida, and when you’re dealing with a substance like that, it’s a different conversation than, say, marijuana.

“If we can keep traffickers and drug dealers locked up — and charge them with murder in some cases — I think it will help.”

Other legislators argue that the fentanyl law is just the latest in a series of impediments toward drug treatment. They say these mandatory minimums take options, like rehab, off of the table for judges, while weighing on the state budget.

“It can be unfair at times,” said Sen. Randolph Bracy, D-Ocoee. “We really tried to focus on lower-level mandatories for possession. These are users. If anything, they need to be in treatment — not prison.

“There’s implicit bias in the war on drugs,” Bracy said. “Minorities are targeted often. It’s time we roll back these laws.”

In 1993, the Florida Legislature repealed mandatory minimums for lower-level trafficking offenses, relying instead of sentencing guidelines to dictate penalties. Despite an overall drop in the crime rate during that time, trafficking mandatory minimums were brought back in 1999.

In the years that followed, a disproportionate percentage of new prison commitments for drug trafficking were black. For example, no drug was responsible for more mandatory prison punishments in fiscal year 2008 than cocaine — and 58 percent of those offenders were black, according to the Florida Senate.

“We continue to fight this war with the same ammunition,” said Larry Eger, public defender for the 12th Circuit Court in Sarasota, Manatee and DeSoto counties. “And we continue to lose.”

‘We are breaking up families’

Judith Scully teaches criminal procedure at Stetson University, leads diversity and implicit biases seminars for Tampa area judges and co-founded the law school’s Innocence Project.

She said blacks become a target in the war on drugs because it’s “easy.”

“They’re easy prey — easy arrests to make,” Scully said. “Drug sales take place in the open for the most part in these low-income communities. College campuses, boardrooms and other places where drug sales are also taking place are more difficult to police. They’re out of the public.”

Scully says everyone in the system is responsible for the bias — from judges tasked with administering justice to prosecutors and the oft-overworked public defenders.

As legislators continue to pass new mandatory minimums for drugs, Scully fears the consequences will mean tighter access to substance abuse treatment, especially for blacks, who already are underrepresented in rehab.

Advocates on both sides of the political aisle are now pushing for reform. They want to treat addiction as a disease and health care issue, pointing to the costs of incarceration and the lives lost.

“There’s a significant disparity in the effect of drug laws,” said Clark Neily, vice president of criminal justice at the Cato Institute, a think tank founded by the Charles Koch Foundation. “We are breaking up families. It gets harder for them to find a job. They have a higher chance of recidivism. We have all of these negative consequences.

“And what are we getting? Absolutely nothing.”

This concludes the series of stories on how drug courts have “a legal and ethical obligation” to provide equal access to treatment, regardless of race. Read the series online at http://projects.heraldtribune.com/one-war-two-races/intro/