CRACKHEADED DISPARITIES

Welcome Move Toward Fairer Drug Sentences

Semantics and racist laws aside, crack and cocaine are essentially the
same thing. A cocaine hit lasts longer. A crack hit is more intense.
Crack rocks are sold in tiny portions, giving the illusion of being
cheaper than cocaine. In fact, high for high, crack is more expensive.
Figure in the punishment for crack possession compared with cocaine,
and crack becomes a merciless drug.

Under federal law, an automatic five-year prison sentence is meted out
for possession of 500 grams of cocaine. The same five-year sentence
applies for just 5 grams of crack: a 100-to-1 disparity. Why the
difference? Because Congress in 1986, when the ratio was set, let
racism and hysteria drive policy. Powder cocaine is generally consumed
by middle- and upper-class whites. Crack is considered the poor man's
cocaine. More specifically: the black and Hispanic man's, and woman's,
cocaine. (About 64 percent of crack users are black or Hispanic.)

Drug laws focused on the inner-city "crack epidemic" of the 1980s. The
epidemic was mostly imaginary. Other drugs' effects were more
devastating, especially when alcohol is included in the picture (as it
seldom is). The resulting sweep of black and Hispanic crack users into
prison was not imaginary.

On Nov. 1, new guidelines set forth by the federal Sentencing
Commission went into effect, reducing the disparity in punishments.
Instead of a minimum of five years in prison, a first-time offense for
possession of 5 grams was reduced to four years. Guidelines for
trafficking were similarly reduced, from 10-year minimums to
eight-year minimums. It was a small, worthy, but incomplete step in
the right direction. On Nov. 13, the Sentencing Commission held a
public hearing on making its earlier rule retroactive, so that all
federal inmates impacted by the longer sentences would have their
prison terms reduced accordingly.

Again, the impact would be slight, as sentences would be cut by about
a year for those eligible. Nothing like a flood of former inmates
would hit the streets, and only federal inmates would be affected.
Should the new guidelines be adopted, about 3,800 individuals would be
released in the next year, 86 percent of them black.

The Bush administration is opposing the change on two grounds: Making
the new guidelines retroactive would overwhelm the judicial system, as
prisoners still would have to petition the court to gain release, and
lessening punishments would encourage drug crimes. Both reasons are
invalid. If the new sentencing guidelines are fairer for drug
offenders from here on, keeping the old guidelines in place for
previous offenders means endorsing unfairness for them. Further, the
lesser sentences that apply for cocaine offenses aren't encouraging
cocaine consumption. The Drug Enforcement Administration says cocaine
consumption "has remained stable since 2002."

The Sentencing Commission itself emphasizes that its less stringent
guidelines are "only a partial solution to some of the problems
associated with the 100-to-1 drug quantity ratio. Any comprehensive
solution . . . would require appropriate legislative action by
Congress." That appears unlikely. It's an election season. Candidates
don't want to look less than tough on crime, even if toughness, in
this case, contradicts justice. But the commission is signaling -- to
states' sentencing structures and, with perseverance, to the next
Congress and perhaps a wiser president -- that the time for hysterical
drug punishments is past.