Jason Hernandez began selling marijuana in his McKinney neighborhood in 1992, when he was 15. At first, it was baggies, but within a couple of years he moved up to moving pounds. From there he moved on to selling crack cocaine, and by his own admission he was good at it.
“It’s what I did,” he said. “It’s what everyone in my neighborhood did at that time.”
And everything was working nicely for him until March 16, 1998, just about a month after his 21st birthday. That’s when the police came and arrested him. His crime? Conspiracy to distribute crack cocaine and methamphetamine, along with several other conspiracy charges.
But there wasn’t a speck of cocaine, crack, methamphetamine, or any other illegal drug on Hernandez, who thought it odd that the cops simply patted him down and didn’t search his place or car. “I didn’t have anything, but it turned out I wasn’t really the one they were after.”
Other dealers in the neighborhood had been picked up by the police, and when asked who their supplier was, many named Hernandez.
The feds took the case, and he was offered eight years if he would testify against another dealer. He wouldn’t. He went to trial, and a dozen people testified against him.
“I’m not going to deny what I did,” he told the Fort Worth Weekly. “I did sell drugs, but they didn’t catch me with any. It was a dry conspiracy.”
His sentence as a first-time offender convicted of a conspiracy in which no drugs were found? Life without parole. Plus 20 years. And another 20. And another 20. And another 20. And then 40 more years, and 40 more, and then 60 years on top of that, all to be served consecutively. And then eight years of parole and a $6,000 fine, just in case he outlived life without parole and the additional 200 years.
Hernandez’ case is not unique, though the sentence was unusually harsh. Hundreds of people around the country are serving life-without parole for first-time nonviolent drug offenses. Some are serving in state penitentiaries, some in the Federal Bureau of Prisons. Hundreds of thousands of other offenders are serving lesser but still harsh sentences for nonviolent drug offenses.
How such harsh drug sentencing came about is a mosaic of fear mongering, political expediency, and the tenor of the times. Its roots run deep, from the first anti-opium laws, aimed at the Chinese population in San Francisco near the end of the 19th century, through newspaper publisher William Randolph Hurst’s relentless war on marijuana that culminated in its being made illegal in 1937. President Richard Nixon declared a war on all illegal drugs in 1971 and then created the Drug Enforcement Administration to fight that war. That same year, New York Governor Nelson Rockefeller signed into law the harshest drug sentences in the United States. Politicians began outdoing one another to appear tough on drug crime. Add to that the federal mandatory minimum sentencing for drug crimes that was put in place in the 1980s, and several states’ Three-Strikes-You’re-Out laws in the 1900s, and the elimination of federal parole, and by the turn of the century, the United States had become incarceration nation.
Despite having both the highest percentage of its population behind bars and the highest total number of people in the criminal justice system, crime in the United States didn’t slow down at all. The harsh sentences didn’t appear to be a deterrent to drug crimes. The loss of early release on the federal level and the removal of safety nets once prisoners were released — including a ban on food stamps and the use of federally subsidized housing for felons — only caused recidivism rates to rise, which in turn led to prison over-crowding. The vast amounts of public monies being spent on keeping prisoners in prison were cut back on the rehabilitation end of the criminal justice system: In many prisons, libraries, GED classes, job training, and drug and alcohol therapy were frequently eviscerated or eliminated. Prisoners were being released with fewer and fewer options with which to successfully reintegrate to society.
It all came to a head in 2007 in Texas, when the state was faced with either building new prisons or finding out some other way to handle criminal justice. Surprisingly, Texas politicians said no to new prisons and embarked on changing their approach to incarceration. Other states and the feds took notice. In 2014, changes in federal sentencing laws allowed some drug felons to get out a couple of years early. In 2013, President Barack Obama stepped into the fray and commuted the sentences of eight drug offenders. And a bipartisan bill that would allow thousands of offenders to avoid prison altogether is expected to become federal law in early 2016.
“Somewhere in all of this, we, as a country, have modified our thinking and approach to criminal imprisonment,” said Mary Price, general counsel for Families Against Mandatory Minimums (FAMM), an organization fighting to eliminate mandatory drug sentencing. “And that’s partly because we’ve learned that public safety is not harmed when we don’t use prisons to address all these issues.”