JACKSON, Miss.—Maurice Clifton Jr. complained of chest pain in November 2019. His symptoms progressed until he later died at an Indiana hospital.

His father, Mound Bayou, Miss., native Maurice Clifton Sr., then 54 years old, heard the news about his son’s death while serving his 22nd year of a 33-year sentence in federal prison in Forrest City, Ark., for aiding and abetting the sale of 6.4 grams of crack cocaine and 20 years for $2,500 wire fraud, both running concurrently. He had maintained that he was innocent of the charges, but his prison term began when he was about 31, the same age his son died, which made the news of his death especially painful, Clifton Sr. later said.

Several months later, at about 6:30 a.m. on Jan. 10, 2020, Clifton was wearing dark green khakis and a green jacket with a torn plastic poncho when he walked nearly a mile in the rain from his prison unit to the premises of the Federal Prisons Industries Inc. where he worked as a warehouse clerk. It had been raining all week, but another storm raged within him as he questioned God about facing yet another decade for selling crack as a young man.

“Lord, why me? What is it that you want me to do? What’s going on? I’ve done everything that you asked me to do. Why me?” he questioned in his mind.

Families Against Mandatory Minimums President Kevin Ring says the Anti-Drug Abuse Act of 1986 led to first-time offenders and drug addicts getting lengthy sentences. Photo courtesy Families Against Mandatory Minimums

That morning, Clifton was not in the mood for work and lost his appetite during lunch, giving his fish lunch to another inmate. He was scheduled to get off the job early at 2:30 p.m., but an acquaintance called out to him just before that time.

“Hey, I thought you were gone,” the individual said.

“What do you mean?” Clifton replied. The acquaintance said that he thought Clifton had received a court order for immediate release from prison. Clifton denied receiving such information and noted that anything could still happen before the close of work that Friday.

“You know what, it’s not 4 o’clock; the day is not over yet,” Clifton said, knowing that the way the prison system operates would prevent him from leaving the prison that day if he did not leave by 4 p.m.

Clifton returned to his prison unit close to 3 p.m., an hour before that deadline.

Caught in the Drug War

U.S. Northern District of Mississippi Judge Neal Biggers Jr. sentenced Clifton to 33 years in prison for 6.4 grams of crack cocaine in May 1997 in accordance to the Anti-Drug Abuse Act of 1986, which created the 100-1 disparity in the sentencing of crack cocaine and powder cocaine. Crack is the crystal form of cocaine powder. The official disparate legal treatment based on the 1986 law means that 6.4 grams of crack cocaine, which weighs about the same as a quarter, triggers the same mandatory minimum sentence as 640 grams of powdered cocaine, which weighs one-and-a-half pounds.

During a July 18, 2022 Zoom interview with the Crirec, Families Against Mandatory Minimums President Kevin Ring explained the origin and the impact of the disparate sentencing regime for crack and powdered cocaine. Families Against Mandatory Minimums is a criminal-justice reform advocacy organization based in Washington, D.C.

“At the height of the drug war in the 1980s, Congress was considering passing a bunch of new mandatory minimum sentences to apply to drug crimes,” Ring said. “And it just so happened that Len Bias, who was a basketball star at the University of Maryland, died of an overdose.” Bias died on June 19, 1986.

“They thought it was crack; it turned out to be powder, but he had been drafted by the Boston Celtics,” Ring added. “The Speaker of the House at the time was Tip O’Neill (Democrat) from Massachusetts, and the Democrats in Congress and the Reagan White House were in a race to see who could be the toughest on drug crimes.”

Len Bias, who was a basketball star at the University of Maryland, died of an overdose of powdered cocaine on June 19, 1986. At the time, many thought he had overdosed on crack cocaine, which is the crystal form of cocaine. Few months later, the U.S Congress passed an Anti-Drug Abuse Act of 1986 that established a 100-1 ratio in the sentencing for crack cocaine crime versus powdered cocaine. Photo courtesy ACLU

A few weeks after Bias’ death, Congress passed the Anti-Drug Abuse Act in October 1986.

“It was clear immediately what those consequences were going to be; you were seeing incredibly lengthy sentences being handed down—judges didn’t want to do it,” Ring continued in his explanation. “There were first-time offenders, addicts getting these lengthy sentences on all drug crimes.”

The Equal Justice Initiative argued that this sentencing disparity has no credible scientific basis regarding the difference in biological impact, but the results were racially distinctive. “In the years following the enactment of the Anti-Drug Abuse Act, the number of Black people sent to federal prison ballooned from approximately 50 in 100,000 adults to nearly 250 in 100,000 adults,” the organization wrote. “During the same period, there was almost no change in the number of white people incarcerated in federal prison.”

U.S. Supreme Court Justice Sonia Sotomayor, in a concurring opinion in 2021, described the impact of the disparate sentencing between crack and powdered cocaine: “Because the drug quantity tables are keyed to the statutory minimums, selling a given weight of crack cocaine would lead to the same base offense level as selling 100 times as much powder cocaine,” she wrote last year. “Street-level crack dealers could thus receive significantly longer sentences than wholesale importers of powder cocaine.”

Ring told the Crirec that the disparate impact was not just about disparate sentencing. “[I]n particular with crack, they saw the racial disparity because even though Blacks and whites used crack and powder at roughly the same rates, because of policing patterns, you were seeing 80% of convictions for crack were among Black defendants, and they were given these much more serious penalties.”

Ring said arrest rates in Black communities tend to be higher due to the degree of policing rather than higher rates of drug usage since those neighborhoods are more heavily policed and because drugs are sold on the streets.

U.S. Supreme Court Justice Sonia Sotomayor, in a 2021 concurring opinion, wrote that the Anti-Drug Abuse Act of 1986 led to street-level crack cocaine dealers receiving longer sentences than wholesale powder cocaine importers. Photo: Collection of the Supreme Court of the United States, Steve Petteway

Researchers D.K. Hatsukami and M.W. Fischman explained in 1996 in the Journal of the American Medical Association that the physiological and psychoactive effects of cocaine are similar whether it is in the form of cocaine hydrochloride (powder form) or crack cocaine (cocaine base). They disclosed that their findings do not justify the 100-1 federal sentencing guidelines with regard to the two cocaine forms.

“Although crack cocaine has been linked with crime to a greater extent than cocaine hydrochloride, many of these crimes are associated with the addiction to cocaine,” they added. “Therefore, those addicted individuals who are incarcerated for the sale or possession of cocaine are better served by treatment than prison.”

The American Civil Liberties Union wrote in a 2006 report that the 100-1 disparity led to an increased population in prisons of poor and Black people. “Because of its relative low cost, crack cocaine is more accessible for poor Americans, many of whom are African Americans,” the report said. “Conversely, powder cocaine is much more expensive and tends to be used by more affluent white Americans.”

The report highlighted the wastefulness of that policy in terms of tax dollars and human lives and identified other ancillary impacts. These factors include the separation of fathers from families; separation of mothers with sentences for minor possession crimes from their children; massive disfranchisement of those with felony convictions; and the prohibition of the formerly incarcerated from receiving social services that could help their families.

“Thus, the sentencing disparities punishing crack cocaine offenses more harshly than powder cocaine offenses unjustly and disproportionately penalize African American defendants for drug trafficking comparable to that of white defendants,” the report added. “In 2000, there were more African American men in prison and jails than there were in higher education, leading scholars to conclude that our crime policies are a major contributor to the disruption of the African American family.”

Graph: African American women’s imprisonment rates for all offenses, which drug convictions drove, surged 800% from 1986 to 2005, compared to 400% for all women. Chart courtesy ACLU

Because drug-related crimes continued to rise two years later despite the increasing penalty, Congress passed the Omnibus Anti-Drug Abuse Act of 1988, with even stiffer sentencing.

“The 1988 Act created a 5-year mandatory minimum and 20-year maximum sentence for simple possession of 5 grams or more of crack cocaine,” the ACLU report added. “The maximum penalty for simple possession of any amount of powder cocaine or any other drug remained at no more than 1 year in prison.”

Families Against Mandatory Minimums, in a report on the history of crack cocaine sentencing laws, wrote that “Congress enacts a 5-year mandatory minimum for first-time simple possession of 5 grams of crack cocaine. No other first-time simple possession drug offense requires prison time or a mandatory minimum sentence.”

Clifton’s Effort to Reduce Sentence Denied

In 2010, Congress passed the Fair Sentencing Act, which increased the amount of crack cocaine that will trigger the mandatory minimum sentence of five years from 5 grams to 28 grams, changing the 100-1 disparity to 18-1.

Clifton filed a motion to take advantage of the new law in October 2012, claiming that he was entitled to a reduced sentence based on the newly changed law.

“Application of the Fair Sentencing Act of 2010 and United States Sentencing Guidelines Amendment 750 warrant a reduction in Mr. Clifton’s 400-month sentence,” Clifton told the court via his attorney, Brian D. Mayo. “For the reasons set forth in the accompanying memorandum of law, Mr. Clifton respectfully submits that under the Fair Sentencing Act of 2010 and Amendment 750, and Guideline Amendment 706, a sentence of 400 months constitutes an unreasonable sentence for the conduct attributable to Mr. Clifton.”

Federal Judge Biggers signed an order in 2014 denying Clifton’s motion for sentence reduction because, Ring explained, Congress did not make its changes in the 2010 law retroactive. “So people who were serving a 100-1 sentence, (who) had been already sentenced, didn’t get any relief,” Ring told the Crirec.

Then-Northern District of Mississippi U.S. Attorney William Lamar opposed Maurice Clifton’s release from federal prison. Photo courtesy U.S. Department of Justice

In December 2018, Congress passed the First Step Act, which retroactively applies the changes in the 2010 law. Clifton then petitioned for his release under the newer act. In an October 2019 letter to then-U.S. Northern District of Mississippi Chief Judge Sharion Aycock, Clifton again argued in a handwritten note for a reduction in sentence. He explained that the 2010 law caps the maximum penalty for the offense he is in prison for at 20 years, and the First Step Act made it retroactive.

“I have been a model inmate, who has mentored other inmates, completed numerous vocational and rehabilitation classes,” Clifton wrote. “I am still under the 100:1 ratio sentence, and each day I serve over 20 years is categorically unjust.” He had been in prison for 22 years at that time.

On Dec. 16, 2019, Judge Biggers, Jr. held a hearing on Clifton’s case, which lasted 20 minutes. The government opposed Clifton’s application. In a Jan. 3, 2020, filing, then-Northern District of Mississippi U.S. Attorney William Lamar acknowledged that “Clifton is eligible under the First Step Act for the Court to reduce his sentence.” Still, he cited his pre-sentence investigation report, which contains allegations not presented to the jury, as reasons why the judge should deny Clifton’s request.

Last Day in Prison

“Sip, Sip!” some of Clifton’s fellow inmates called out to him when he got back to his unit from his work as a warehouse clerk with Federal Prison Industries Inc. on Jan. 10, 2020. His nickname was “Sip,” a shortened form of Mississippi. “The (prison) secretary is calling for you, and the officer in the training center is calling for you,” they told him.

He met the training-center officer, who told him he needed to see the secretary. He went to her office and knocked on the door.

“Come in,” she replied.

After Clifton stepped into the room, she asked, “Who are you?”

“I am Clifton.”

“OK,” she replied, standing up with some papers. “I got good news and bad news. Which one do you want to hear?”

“Well, it’s all news; just give it to me,” he replied.

“Today, Mr. Clifton, the judge had signed your order for you to be immediately released,” she told him.

“OK, that’s the good news; what’s the bad news?” Clifton inquired.

“We’ve got to get you out of here before 4 o’clock,” she replied. Clifton eventually left the jail that day.

On March 29, 2022, Mississippi Center for Re-Entry founder Cynetra Freeman (right) presented an award to Maurice Clifton Sr. (left), who came out of federal prison on Jan. 10, 2020, at an event held at the Two Mississippi Museums, Jackson, Miss. Photo by Kayode Crown

Ring told the Crirec that the First Step Act had freed thousands from federal prison. “So 3,500 people received an average sentence reduction of about six years, and they were able to get out,” he said.

During a forum called Day of Empathy held at the Two Mississippi Museums, Jackson, Miss., on March 29, 2022, hosted by Mississippi Center for Re-Entry Founder Cynetra Freeman, Clifton shared his experience trying to get out of prison using the First Step Act. “[T]he prosecutors fought me tooth and nail to get out because they have what they call relevant conduct (in prison), and they have what they call a pre-sentence investigation report that people who put you in jail write.”

Ring defended the practice of looking into the presentence investigation report and prison conduct.

“It may be relevant that somebody (who) is up for sentence reduction, but they have a terrible disciplinary record in prison, or there were facts that may be in their case, (maybe) they pled down to a drug crime, but there were other facts in their case that warrant them staying at that other sentence,” Ring said. “In our view, the presumption should be that you’re going to get a reduced sentence because the threshold has changed, but we don’t have a problem with the courts looking at and individualizing that review.”

“The history suggests that when judges believe they have the authorization to reduce it based on a change in law, they do it,” he added.

Clifton, on the other hand, has a more pessimistic view of the system, explaining that people he knows are still behind bars despite the passage of the First Step Act after receiving denials of their sentence-reduction requests.

“So the judges are playing gatekeepers, and they’re not letting the communities rewrite their narratives (in the presentence investigation report),” Clifton said. “And they’re still stuck in the prison system doing a hundred-to-one sentence. (Courts) said, crack cocaine and powder cocaine are equal, yet (they) bring it down to 18 to one. If it’s equal, it’s equal; it should be one-to-one.”

Momentum for Remedies Grew in 2020

The momentum for a legislative remedy to eliminate the disparate sentencing between crack and powdered cocaine increased in 2020, Ring explained.

“[S]ince (the passage of the First Step Act in 2018) and in the wake of sort of what people call the racial reckoning or whatever you say after George Floyd and Breonna Taylor, looking at ways in which the criminal-justice system treats Blacks and whites differently, the crack powder disparity is one of the most glaringly obvious and unlike other sources of discrimination—which may be human bias,” Ring said. “This is in the criminal code itself, and we know the impact is so different.”

Dream Corps JUSTICE Policy Director Kandia Milton wrote that the idea that the law should treat crack cocaine and powder cocaine the same has sizable bipartisan agreement. Photo courtesy Dream Corps

George Floyd, then 47, died at the hands of police officers in May 2020 in Minneapolis, Minn., and Taylor, 26 at the time, died similarly in March 2020 in Louisville, Ky. “So a bunch of groups went to the Congress and said, ‘Let’s fix this,’ and we’ve got a bill to do it that’s called the EQUAL Act,” Ring continued.

The Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act would eliminate the disparate sentencing between crack and powder cocaine and make the change retroactive. House Democratic Caucus Chairman Rep. Hakeem S. Jeffries, D-N.Y., introduced the bill in March 2021. The U.S. House of Representatives, in a 361-66 vote, passed it in September 2021. The three Mississippi Republican Reps.—Steven Palazzo, Michael Guest and Trent Kelly—voted no, while Democrat Bennie Thompson voted yes.

Waiting on the Senate

Although the U.S. House passed its version of the EQUAL Act 10 months ago, the Senate has yet to take it up, but not because of a lack of the needed votes. “We have a majority, we have a filibuster-proof majority in the Senate, but they still haven’t taken it up yet,” Ring told the Crirec on July 18. “And that’s where we are.”

In a June 29 email to supporters the Crirec obtained, Dream Corps JUSTICE, a criminal-justice reform advocacy group, explained behind-the-scenes efforts to get the Act to the Senate Floor for a vote. Dream Corp JUSTICE’s parent body, Dream Corp, announced a change of name to Dream.org on July 21, 2022.

“Led by Senator Cory Booker (D-NJ) and in partnership with the original cosponsors, Senate Judiciary Chairman Richard Durbin (D-IL) and Rob Portman (R-OH) there are 11 Republican and 11 Democrats currently cosponsoring the bill — and bipartisan commitment to support it when it reaches the Senate floor for a vote,” Dream Corps JUSTICE Policy Director Kandia Milton wrote.

“This is important because not only are the votes there, we have the requisite number of cosponsors to invoke cloture, the process for ending debate and avoiding a filibuster,” he continued.

“Also, with the urging of New York-based grassroots organizations, our national partners, and our National Director, Janos Marton, Senate Majority Leader Chuck Schumer recently held a press conference declaring that he will make the EQUAL Act a ‘top priority’ and find floor time for a vote,” Milton added.

U.S. House of Representatives Democratic Caucus Chairman Rep. Hakeem S. Jeffries, D-N.Y., introduced the EQUAL Act in March 2021, which would eliminate the disparate sentencing between crack and powder cocaine and make the change retroactive. The House approved it in September 2021. Photo courtesy U.S. House of Representatives

The email explained further that despite all the positive steps, the Senate majority leader may still not move the proposed legislation to the floor for a vote anytime soon.

“As we continue to demand Leadership move the EQUAL Act to the floor for a vote, Senators express great concerns about the political environment around crime and the politics of the current midterm elections (in November),” Milton said. “Democratic Senators in particular fear that those who oppose eliminating the disparity between crack cocaine and powder cocaine will politicize the process and introduce ‘ugly’ amendments to the bill that will cause harm and put the EQUAL Act at risk.”

‘Lawmakers Are Scared’

FAMM President Ring told the Crirec more about what he sees as the senators’ political calculations. “The problem is that lawmakers are scared that if this bill comes up, Republicans will be allowed to offer amendments to it ’cause that’s usually how the process works,” he said.

“You’re allowed to offer amendments, and they will offer popular-sounding, but bad policy amendments; you’ll see amendments on guns or fentanyl or other topics, and members of the Senate who are up for re-election this year don’t want to have to take those tough votes. That’s what it comes down to—political cowardice, and that’s where we’re stuck right now,” Ring continued.

“So the question is, is there a way to pass it, either included in some other bill, or will they wait until after the election and do it in the lame-duck session after the November election?” he posited. “And we’re looking for every possible opportunity.”

Families Against Mandatory Minimums Communications Manager John Norton gave a more pessimistic take on the prospect of the passage of the Equal Act in a blog writing dated June 23, 2022. “With the midterm elections fast approaching, Republicans and Democrats are focused on making partisan appeals to voters instead of working together to pass legislation,” he wrote.

U.S. Sen. Cory Booker, D-N.J., introduced a bill in January 2021 to equalize the sentencing practice between drug crimes involving crack and powdered cocaine. Photo courtesy Senator Cory Booker

“The EQUAL Act represents a realistic opportunity to advance the cause of racial justice,” he added. “It’s the rare bill that (has) ‘yes’ votes from House Speaker Nancy Pelosi (D-Calif.) and House Minority Leader Kevin McCarthy (R-Calif.).

“Unfortunately, votes on amendments unrelated to the bill, which can then be weaponized by political opponents, will likely accompany an EQUAL Act vote,” he added. “As a result, the political calculation has been made to shelve the bill in the Senate.”

In addition, Dream Corps JUSTICE Policy Director Kandia Milton, in the June 23, 2022, letter, also indicated that the group is concerned about a competing Senate bill sponsored by Sen. Chuck Grassley, R-Iowa—the SMART Cocaine Sentencing Act. Mississippi U.S. Senator Roger Wicker is a co-sponsor of the bill.

“If passed, this bill would maintain a disparity between these two forms of the same drug (2.5-1), lower the mandatory minimum threshold to 400 grams from 500 grams and, worst of all, mandates that the U.S. Attorney must approve all petitions for retroactivity,” Milton wrote. “I think you know we do not support this legislation, and the good news is that this competing bill has very little support amongst the Republicans and no discernible support within the advocacy and law-enforcement communities.”

“Our sense of urgency is driven by the reality that if we do not pass it by the August recess, we won’t get another clean shot until after the midterm elections, an unpredictable two-month window at the end of the year,” he added. “We are very close to eliminating the disparity between crack cocaine and powder cocaine, and we recognize there is more work to be done.”

EQUAL Act May Free ‘7,000 People’

The EQUAL Act might allow thousands of people to leave federal prison, Ring said. “According to the sentencing commission, there are about 7,000 people who would have an opportunity to have their sentence revisited,” he told the Crirec.

“It’s not an automatic reduction,” he said. “You just get to go back to court, and a judge gets to decide whether to reduce your sentence in accordance with the new scheme.”

A man in a suit and wearing glasses sits at a podium with his fingers entwined, behind a sign that says Mr Thompson, Chairman
Mississippi’s 2nd Congressional District Rep. Bennie Thompson (pictured) voted yes for the EQUAL Act in September 2021. White Mississippi Republican Reps. Steven Palazzo, Michael Guest and Trent Kelly voted no. Photo by John McDonnell/The Washington Post via AP, Pool

At the March event, Clifton advocated for the passage of the EQUAL Act. “There are still men and women who are still incarcerated under the 100-1 sentence,” he said. “I called them ‘left-behinds,’ and I fight every day to try to reach out to anybody that I can to get their stories told.”

“I know men who’ve been in there for 30-something years because they got one write-up (for misbehavior in prison).”

FAMM Communications Director John Norton wrote, “The EQUAL Act would free many Black Americans from long sentences that don’t make communities safer and haven’t diminished our country’s insatiable appetite for drugs.”

Clifton, in March 2022, informed those gathered at the Two Mississippi Museums in Jackson of his progress after he emerged from prison, both personally and professionally. “On December 4, I got married to the lovely Jessica Clifton, (a) schoolteacher,” he said.

“Since I’ve been home, I’m (now) a chaplain at Mississippi Department of Corrections. It’ll be two years in July.”

Senior Reporter Kayode Crown was born in Nigeria, where he worked as a journalist at a state government-owned enterprise. He crisscrossed various editorial positions beginning in 2010 before moving to the United States with his family in 2019. He earned a post-graduate diploma in journalism from the International Institute of Journalism in Abuja, Nigeria, in 2011. Email story tips to Kayode Crown at [email protected].