COURT GRANTS LEEWAY IN CRACK COCAINE CASES

Crack or powder, it's still cocaine; but the sentences have had
unintended effects

Two significant steps occurred this week to correct the draconian and
racially suspect sentences mandated for crack cocaine offenders.

In a 7-2 ruling, the U.S. Supreme Court upheld the 15-year sentence of
Derrick Kimbrough, convicted of selling both powder and crack cocaine.
The Justice Department argued his sentence violated federal guidelines
because it was less than the mandated 19 to 22.5 years and flouted the
will of Congress requiring harsher penalties for crack dealers.

Writing for the majority, Justice Ruth Bader Ginsberg reiterated a
previous court ruling that sentencing guidelines are not mandatory but
"advisory." In sentencing the defendant to 15 years, the trial judge
did not ignore the harsh mandatory minimum sentencing statutes of 10
years and the maximum of life for dealing 50 grams or more of crack.
Within those two limits, Ginsberg argued, judges are free to use
discretion. "The statute says nothing about appropriate sentences
within these brackets and this court declines to read any implicit
directive into the congressional silence."

Sentencing guidelines in cocaine cases have ranked among the worst
injustices created by the nation's overzealous "war on drugs."

Ginsberg underscored the inequity, commenting beyond the law's
technicalities. She recounted the long, unfortunate history of crack
penalties. Wrongly believing crack cocaine to be more addictive than
powder cocaine, Congress imposed harsh sentences for minor crack
dealers, the vast majority of whom were black, while major traffickers
of powder cocaine, most of them white, received lesser sentences or
probation. "This disparity means that a major supplier of powder
cocaine may receive a shorter sentence than a low-level dealer who
buys powder from the supplier but then converts it to crack," Ginsberg
wrote. Had Kimbrough been convicted of trafficking solely in powder
cocaine, he would been sentenced to just over eight years.

A day after the Supreme Court ruled, the U.S. Sentencing Commission
voted to apply its new, more lenient sentencing guidelines for crack
possession retroactively. Commission members have long complained that
crack sentences were too harsh. Last month they used their limited
discretion to slightly reduce penalties for newly convicted crack
defendants but left open the question of how judges treat federal
inmates already incarcerated.

On Tuesday, they voted unanimously to allow the inmates to apply for
reduced sentences, making some 19,500 federal prisoners eligible for
early release.

Justice Department officials opposed the decision, predicting that the
public would be endangered by the inmates' early release. Such
alarmist rhetoric ignores the fact that inmates won't be released
automatically. They must apply for early release. A judge reviews
their cases and considers any violence in their backgrounds, their
prison behavior and other factors before deciding whether to release.

As the commission rightly determined, to deny relief to minor drug
dealers who have spent years in prison under laws acknowledged as
unfairly harsh compounds injustice.

The courts and the sentencing commission have done what they can to
restore fairness to our drug laws. Now Congress should follow suit.