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By Pat Nolan|Published Date: June 25, 2009
Laws passed hastily in response to news headlines seldom turn out to be good for the public. The law of unintended consequences applies as certainly to legislation as it does to life in general. Yet, legislators are loath to reverse what they did in haste, even when there is overwhelming evidence that the law is both harmful and ineffective.
Such is the case with the current 100-to-1 disparity in penalties for crack cocaine and powder cocaine. When college basketball great Len Bias dropped dead, overdosed from snorting cocaine, crack was suspected. Soon news shows trumpeted stories about “instant addiction” and crack babies overwhelming our inner cities. Congress jumped in quickly and passed the Anti-Drug Abuse Act of 1986, which established mandatory harsh sentences for small quantities of crack–one hundred times smaller than the amounts of powder cocaine that triggered the same sentence. There was no science underlying the 100-to-1 sentence disparity, but crack seemed so much worse that the penalties ought to be much tougher.
To put this in perspective, a powder cocaine dealer who sells 5,000 grams, which would fill a briefcase, earns a mandatory 10 year sentence. Yet, someone selling crack cocaine would get that same decade-long sentence for selling only 50 grams, about the size of a candy bar. Now, this disparity might be justified if crack were much more addictive or potent. But science tells us it isn’t more addictive or potent. Despite valiant attempts to address this unfair disparity in sentences, Congress has refused to modify the 100-to-1 ratio.
Supreme Court Decisions
In recent months, however, progress has been made. In December, the U.S. Supreme Court handed down two decisions that restore judges' right to exercise discretion in handing down sentences. In a 7-2 ruling in Kimbrough v. U.S., the Court decided that judges may consider the unfairness of the 100-to-1 ratio between crack cocaine and powder cocaine sentences and may impose a sentence below the crack guideline in cases where the guideline sentence is too severe. The Court, in weighing the justice of federal sentencing policy, recognized that "indeed...the crack/powder disparity produces disproportionately harsh sanctions" (see Kimbrough v. U.S., 552 U.S. 06-6330 (2007) at 21). In Gall v. U.S., the Court, voting 7-2, decided that judges can impose sentences that are shorter than the applicable guideline range without having to justify them with "extraordinary circumstances." Those sentences can be overturned only if the appellate court finds that the lower court abused its discretion.
These decisions restore to judges their rightful role of weighing all the circumstances, instead of applying the "one size fits all" justice of mandatory sentences. The biblical injunction of "an eye for an eye" limits the punishment that can be meted out-the sentence cannot be more severe than the circumstances of the crime justifies. The two Supreme Court decisions give back to judges the right to consider whether the harsh statutory sentences are justified by the facts of the crime. The Court's decisions are important in moving us toward more just sentences.
US Sentencing Commission
The Anti-Drug Abuse Act of 1986, which resulted in the crack/powder disparity, was based largely on the assertion that crack cocaine was more dangerous than powder cocaine and that it was instantly addictive and caused violent behavior. Since then, copious amounts of scientific evidence and an analysis by the U.S. Sentencing Commission have shown that these assertions were not supported by sound data and were exaggerated or outright false. The disparity has resulted in a hugely disproportionate number of African Americans sentenced under this mandatory-minimum law. While the intent was not to single out one racial demographic over another, the impact of these laws has proven to be discriminatory in nature.
As a result, the Sentencing Commission adopted an amendment to the sentencing guidelines that reduces the sentences of approximately 78 percent of defendants convicted of crack cocaine offenses by an average of 16 months. The amendment went into effect on November 1, 2007. Julie Stewart, president of Families Against Mandatory Minimums (FAMM), summed up the situation well when she said, "While this incremental change is a far cry from the 'equalization' of crack and powder cocaine the Commission recommended in 1995, it is a long overdue first step to improving crack sentences."
This amendment, however, raised issues of fairness because it applied only to cases going forward. That could result in two inmates doing time for the same offense with the older case doing 17 months more time. In mid-November, the Sentencing Commission held a hearing on whether to make the new guidelines retroactive. I was honored to be among the witnesses asked to testify. In my statement, I urged the Commission to make the changes retroactive. I also took the opportunity to praise the Commission for their excellent reports over more than a decade thoroughly documenting the unfairness of the 100-to-1 ratio. I am delighted to report that two weeks later, the Commission voted to make the guideline reduction retroactive.
The reduction is not automatic. If a judge finds that the offender still poses a risk to the community, the judge can deny his or her motion to reduce the sentence. To the extent that the courts do reduce the sentences, it will help reduce prison crowding, creating a better environment in which inmates can prepare to live healthy, contributing lives after they are released. Lessening the crowded, violent environment in prisons will allow the institutions to prepare the inmates to be better neighbors when they are released.
US Congress
It is important that Congress take the next step and remove or substantially reduce the unfair disparity in sentences for crack and powder cocaine. In the Commission's decision they rightly noted that they took ... only a partial step in mitigating the unwarranted sentencing disparity that exists between federal powder and crack cocaine defendants. The Commission has continued to call on Congress to address the issue of the 100-to-1 statutory ratio that drives federal cocaine sentencing policy. Only Congress can provide a comprehensive solution to a fundamental unfairness in federal sentencing policy.
Fortunately, there are four congressional bipartisan bills-three in the Senate and one in the House-that seek to address the issue of harsh mandatory-minimum sentencing.
- The Drug Sentencing Reform Act of 2007 (S. 1383), sponsored by Senator Jeff Sessions (R-AL);
- The Fairness in Drug Sentencing Act of 2007 (S. 1685), sponsored by Senator Orrin Hatch (R-UT);
- The Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007 (S. 1711), sponsored by Senator Joseph Biden (D-DE); and
- The Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007 (House Version - H. 4545), sponsored by Representative Sheila Jackson-Lee (D-TX).
However, if Congress is serious about eliminating the cocaine flooding into our cities, they will focus their efforts on the large traffickers that smuggle cocaine across our borders and state lines.
Because crack is a very unstable substance, it is cooked and sold in local areas. It is too dangerous and volatile to carry large amounts for any significant distance. Local and state authorities have the ability to deal with users and mid-level dealers. But they don't have the resources to stop the large and violent networks that move mega shipments of powder cocaine into and throughout the country. For more on this perspective, see Justice Fellowship's Binding Discretion: An Overview of Mandatory Minimum Sentencing .
Congress's primary motivation for passing mandatory-minimum laws was a desire to incarcerate high-level drug dealers for long periods of time. Unfortunately, the opposite proved true-the Sentencing Commission has reported that 73 percent of federal crack defendants have only low-level involvement in drug activity, such as street-level dealers, couriers, or lookouts. Federal authorities are squandering huge amounts of resources on small cogs in the cocaine distribution network: One third of all federal cocaine cases involve an average of 52 grams-the weight of a candy bar. This is a terrible misuse of the time and talent of federal law enforcement and prosecutors. Plus, it has clogged the federal courts with cases that can easily be handled by the states.
If we are to stop the flood of cocaine coming into the country, federal resources should be focused on the networks that bring in boatloads of cocaine, and on people who shoot and kill-the large and violent operators that the local and state authorities cannot effectively combat. This would be good for the taxpayers and more effective in stopping the flow of cocaine. After almost 21 years, the 100-to-1 crack and powder cocaine sentencing disparity has resulted in federal resources being misdirected on small-time drug dealers and not on stopping the flow of drugs into the country. It is now time for Congress to fix this law in order to focus federal law enforcement resources on wining the war on drugs.
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