Unequal Justice Flourishes Within America’s State and Federal Criminal Justice Systems

By: Donald V. Watkins

Copyrighted and Published on March 22, 2024

An Editorial Opinion

In 2022, I met Doug, a 37-year-old white inmate, at the Federal Prison Camp at La Tuna in El Paso, Texas.  He wanted me to help him get out of prison early.    

Doug was sentenced to 11 months on cocaine trafficking charges and 5 years for possessing a gun while he was trafficking cocaine.  I had never seen a cocaine trafficker receive only an 11-month sentence for drug trafficking.  I quickly learned why.

Doug came from an extremely wealthy family in Iowa.  They have been well-established in the oil distribution business for three generations. 

When I reviewed Doug’s case file, I was stunned to see where he had been in and out of various state and federal pretrial diversion, "Second Chance," and "Youthful Offender" programs for first time, non-violent criminal offenders 17 times before his current conviction and imprisonment.  

Prior to meeting Doug, the most breaks I had seen a drug offender get in the criminal justice system involved Caleb, a then-27-year-old white drug offender with nine drug-related arrests between 2011 and 2017.  Caleb, who is the son of a well-known political figure in Alabama, had been in and out of pretrial diversion and "Youthful Offender" programs on numerous occasions.  

Caleb also benefited from the prosecutorial practice of reducing felony charges to misdemeanors for well-connected offenders.

Caleb escaped prison time on each one of his nine arrests. 

Then, there is Stephanie.

On June 8, 2019, Stephanie, who is white and the daughter of a well-known Alabama-based Internet blogger and political columnist, was arrested in Jefferson County, Alabama and charged with two felony cases of possession of illegal drugs. 

While Stephanie was out on bond, she was arrested again on January 28, 2020, and charged with one felony count of insurance fraud.

On March 11, 2020, Stephanie was sentenced to a pretrial diversion program on the drug charges. This judicial action allowed her to avoid imprisonment.  On October 27, 2020, Stephanie was sentenced to pretrial diversion on the insurance fraud charge. Once again, she escaped imprisonment.

I am withholding Doug’s, Caleb’s, and Stephanie’s full names because their names are not germane to the point of this article.

The Disparate Treatment of Black Drug Offenders

During my 46 years of practicing law, I know of no black drug offender who has gotten more than one chance in a federal or state pretrial diversion or "Youthful Offender" program. 

If a black drug offender commits three or more felonies during his lifetime, he/she is generally considered a “career criminal” and is usually subjected to the maximum possible federal and state sentence for drug offenses. 

Black drug traffickers typically receive between 10 and 25 years in prison upon their conviction for the first offense.

Very few black drug offenders are allowed into pretrial diversion, “Second Chance," and/or "Youthful Offender” programs like Doug, Caleb, and Stephanie, all of whom had multiple drug-related charges.

Law enforcement officials, judges, and politicians routinely label black drug offenders as "dangerous thugs” and “ruthless criminals,” and treat them as such in the criminal justice system.

When drug offenders are white and privileged, the gravity of their drug possession and drug trafficking conduct is greatly diminished.  They are often viewed by prosecutors and judges as sympathetic figurers who have a “chemical dependency” problem.   

Because they are perceived to have a “bright future” and are "seeking professional help for their problem," many state and federal prosecutors and judges believe privileged white drug offenders deserve a break in the form of pretrial diversion or Youthful Offender status, or both.

The only reason Doug received any prison time for his 18th and current drug-related offense is because he possessed a firearm in his home while trafficking his cocaine at that location.  The federal judge who sentenced Doug could not find a way to circumvent the 5-year minimum sentence for possessing a firearm while trafficking cocaine. 

So, this judge gave Doug 11 months of misdemeanor time for trafficking his stash of cocaine and the minimum of 5-years for possessing a firearm during the commission of a drug offense.

The Special Hunter Biden Drug Offender Treatment

The only known exception for the 5-year minimum sentence on a firearms charge tied to a drug offense occurred in Hunter Biden’s criminal case, with its ill-fated plea deal. 

According to the U.S. Department of Justice (DOJ) reports for 2001 through 2021, none of the 185,082 “weapons” cases, which includes firearms, that were prosecuted during this 20-year period was referred by DOJ to a pretrial diversion program.  

U.S. v. Hunter Biden is the first and only time a federal offender who possessed a firearm that was tied to conduct involving illegal drugs enjoyed a prosecutorial referral to a pretrial diversion program.  Smelling a “rat,” Biden’s trial judge rightfully declined to approve his plea deal.

Of course, Doug was not the son of a sitting U.S. President.  As such, his trial judge had no choice but to impose a 5-year minimum sentence for his gun possession charge.

Epilogue

Even though I helped 47 inmates leave prison early, I did not help Doug.  In my view, Doug had received enough breaks in the criminal justice system based upon his “White Privilege.”  

I also considered how actor Jussie Smollet was treated in his bid for pretrial diversion. When Smollett, who is black, was admitted into a state pretrial diversion program in Chicago in 2019, it created a firestorm of controversy from the privileged white communities throughout America that routinely benefit from these programs.  

Unlike, Doug and Stephanie, who faced serious felony charges when they were arrested, Smollett was charged with filing a false police report, a low-level Class 4 felony. 

The controversy surrounding Smollet’s admission into the pretrial diversion program ended this alternative disposition of criminal charges for him.

Meanwhile, Doug will exit federal prison on April 6, 2025, if not earlier.  During his time at La Tuna, Doug continued his involvement in the illegal drug trade. 

Old habits die hard, and "White Privilege" seems to last forever.