FRESNO, CA--In the wake of former Fresno Police Department Deputy Chief’s guilty verdicts on two counts of conspiracy to distribute drug heroin and trafficking marijuana, people are either stunned or puzzled at the minimum amount of effort it took to give him 15 years to start—just with those two offenses.
Mr. Foster not only faces a maximum sentence of 20 years, he also faces incredible fines: $250,000 fine for the marijuana-only trafficking offenses, and a $250,000 fine for using a cellphone to facilitate the commission of a felony.
Although six counts were hung, they will be retried come this July in a status hearing. Mr. Foster will remain free until his sentencing scheduled for October.
It would be dubious to blame such a conviction on the jury without understanding the federal laws in place that take small offenses to comparatively convict everyday people to big drug kingpins.
With six more counts— four separate counts to distribute, or possess with the intent to distribute oxycodone possibly regarding Foster’s own 98 prescribed pills of oxycodone—to be retried due to the hung jury, it will be easier to understand the sentencing and conviction procedure by analyzing the federal conspiracy law.
Michele Alexander’s book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness is explicit about the mass incarceration of people of color. In 2013, Alexander explained in Frontline:
“Mass incarceration is a massive system of racial and social control. It is the process by which people are swept into the criminal justice system, branded criminals and felons, locked up for longer periods of time than most other countries in the world who incarcerate people who have been convicted of crimes, and then released into a permanent second-class status in which they are stripped of basic civil and human rights, like the right to vote, the right to serve on juries, and the right to be free of legal discrimination in employment, housing, access to public benefits.”
Alexander further explains how the war on drugs declared by President Richard Nixon in the 1970s targeted primarily nonviolent offenders and drug offenders. The Reagan Administration was able to get more public support on the war on drugs due to the crack epidemic of the 1980s, directing more funding to the militarization of the law enforcement.
To prove they too were against drugs, the democrats supported the Clinton Administration on the war on drugs which then escalated to stricter laws that directly affected the lives of people of color—not even in the President Obama Administration have these stringent outdated laws changed.
So now that there is a stepping point of where the war on drugs began, let’s explore key interjections which made the war on drugs an explicit political gain for those in office.
The vice.com reported a staggering fact: At the federal level, mandatory minimums were applied (find it at that link) to trafficking conspiracies at the height of the drug panic in 1988, and courts were soon crowded with suspects accused of playing some role—no matter how trivial, incidental or arbitrary—in delivering drugs to the public. Many states have their own conspiracy laws, and even today, friends and acquaintances of actual traffickers can get sentenced to life in prison because of some vague connection to the legit players running the drug trade.
How was a federal conspiracy drug law injected to make the war on drugs seem to work flawlessly on people of color?
Eric E. Sterling was counsel to the U.S. House Committee on the Judiciary, 1979-1989 and participated in the passage of the mandatory minimum sentencing laws; he served as legal counsel for the US House Committee on the Judiciary and drafted the federal conspiracy law.
In PBS’ Frontline he stated more clearly how this law affects the average person, to the point where when it was first enacted in 1988, the percentage of federal inmates doing time for drug offenses increased by 300 %:
"The work that I was involved in enacting these mandatory sentences is probably the greatest tragedy of my professional life. And I suspect that the chairman of the subcommittee feels that way too. There
[have] been ... literally thousands of instances of injustice where minor co-conspirators in cases, the
lowest level participants, have been given the sentences that Congress intended for the highest
kingpins. Families are wrecked, children are orphaned, the taxpayers are paying a fortune for excessive punishment. You know there's nothing conservative about punishing people too much. That's an excess. And it's just a waste. It is such a waste of human life. It's awful," Sterling stated in Frontline.
“Ten-year mandatory minimum, routine sentences are 15, 20, 30 years, without parole. ... Then you have conspiracy, and suddenly ... you have people facing 50 years, people facing either life in virtual terms or as a real sentence. That's what's happening. Fifteen thousand federal drug cases a year. Bulk of them mandatory minimum cases. Most of them minor offenders. Only 10% of all the federal drug cases are high level traffickers. You wonder, who's asleep at the switch at the Justice Department? ... What you have is conviction on the basis of testimony. You have drugless drug cases. You don't need powder, all you need is the witness to say, ‘I saw a kilo,’ There don't have to be drugs. All there have to be are witnesses who say, ‘I saw the drugs,’ or, ‘He said there were drugs.’ That's what you need.”
According to the Sentencing Project, at the federal level, people incarcerated on a drug conviction make up just under half the prison population. At the state level, the number of people in prison for drug offenses has increased ten-fold since 1980. Most of these people are not high-level actors in the drug trade, and most have no prior criminal record for a violent offense.
Sterling reiterated that the Justice Department, DEA agents and assistant U.S. attorneys are misusing the statute, where “a pattern and practice of racial discrimination is almost overwhelmingly prosecuting people of color for tiny amounts of drugs and sending them away for kingpin sentences,” said Sterling.
“No one envisioned that by applying [the statute] to anyone in a conspiracy, no matter how low they were in the conspiratorial chain, that they would get the maximum that could be imposed for the kingpin. Nobody figured that out as we were working on it in 1988. It was a total oversight.”
According to Sterling, these cases are the easiest cases to prosecute because they are cut and dry, no defense needed.
So as one looks at the two-time felon—in the eyes of the law—fate of Mr. Foster, consider the trumped law in place that will be his downfall before assuming that the jury has taken a special interest other than the law that sets before them.
The other six counts were hung; reasonable doubt in regards to the law was not efficient. However, once Foster is retried as a two-time felon, the law becomes more detrimental to him and stringent as an already convicted felon. The second time around will make it easier to convict him for the other charges—that is the nature of the beast.
Some would argue that Mr. Foster should have taken the plea deal, which would have reduced the potential 20-year sentence to four years, and with at least 85% of the federal term being served, approximately, 3 ½ years total. There were too many odds against him: recorded wire-taps, Chief Jerry Dyer denouncing that Mr. Foster was acting undercover, and informants with statements against him.
Ninety-seven percent of federal convictions and 94% of state convictions are the results of guilty pleas. According to themarshallproject.org, defendants plead guilty for a variety of reasons:
Pleas to reduced charges result from an explicit agreement between the prosecutor and defense
counsel in which both parties make concessions and explain the result to the hapless defendant and the
offended victim. To use an economic analogy, plea bargaining establishes a “going rate.” The
anticipated sentence is the central concern in the negotiation. The problem, however, is that both
innocent and guilty defendants are placed in the same pot and the goal is to achieve the appearance of
justice, not the realization of it.
In the justice system, pleas are bargains, for the guilty and innocent; it is also a recipe for disaster for one’s livelihood once they are freed—although time is served, guilt will still follow that person in every facet of his/her life. Titles and legacies are stripped, and for most people of color, poverty becomes inevitable as felon labels deter anyone from hiring that person.
Unfortunately the undercover investigation that Mr. Foster was pursuing without the knowledge of the Fresno Police Dept. did not stick as a plausible theory in court. However, it is truly plausible to identify that Mr. Foster was in financial distress--child support, divorce settlements and attorney fees--all had taken its toll, and the option of what we see today is the end result of brash decision-making and poor judgement.
ONME News will continue to keep its readers and viewers updated on the Keith Foster case as it unfolds. Stay tuned!
The New Jim Crow: Mass Incarceration in the Age of Colorblindness
Families against mandatory minimums.
Department of Justice
Constitutional Rights Foundation