SENTENCING DISPARITY CONTINUES

WASHINGTON -- Congress is headed toward adjournment again this year
without acting on what is widely viewed as an indefensible sentencing
disparity between federal drug offenses involving crack and powder cocaine.

Although nearly everyone agrees that the uneven treatment the two
drugs receive under federal sentencing laws is unfair, Democrats and
Republicans have been locked in a stalemate for more than a decade
over the proper fix.

That stalemate, unlikely to break before Democrats regain control of
Congress, has left in place a system that frequently sends black,
inner-city defendants to jail for more than a decade over quantities
of crack that would fetch far shorter sentence for powder-cocaine offenders.

"It can't be sustained on public policy arguments," said Sen. Jeff
Sessions, an Alabama Republican and former federal prosecutor who has
co-sponsored a bill to address the issue since 2001. "Congress has
mandated these sentences, and we should constantly monitor what we
did and adjust it for fairness."

Sessions' bill has stalled because many Democrats believe it doesn't
go far enough to address the problem, and could in part aggravate it.

Under the current law, passed amid the crack epidemic of the 1980s,
trafficking in 5 grams of crack cocaine -- about the weight of a
nickel -- calls for a mandatory minimum five-year prison sentence.
The same sentence for powder cocaine requires 500 grams.

Sessions' bill, which he plans to reintroduce next year, would
increase the amount of crack triggering the five-year sentence from 5
grams to 20 grams, while raising the trigger for an automatic 10-year
sentence from 50 grams to 200 grams.

At the same time, the bill would lower the quantities of powder
cocaine warranting such sentences, from 500 grams to 400 grams for a
five-year sentence and from 5 kilograms to 4 kilograms for a 10-year sentence.

Although Sessions' bill has two Democratic co-sponsors, many
Democrats say it would perpetuate significant inequities while
creating more arbitrary and unnecessarily long sentences for powder
cocaine offenders. With backing from the legal community, Democrats
instead have called for further reducing the mandatory sentences or
for getting rid of mandatory minimums for drug offenses altogether
and giving judges more discretion.

With Democrats taking control of Congress, incoming Senate Judiciary
Committee Chairman Patrick Leahy of Vermont and fellow committee
Democrats will likely take up the issue soon, said Tracy Schmaler,
Leahy's spokeswoman. But with narrow majorities in both the House and
Senate, it remains unclear whether any of the Democratic proposals could pass.

Law enforcement groups as well as the Justice Department continue to
argue that stiffer penalties for crack are warranted because of the
drug's strong connection with violent crime in poor neighborhoods.

"There's violence associated with both, but the nature of the way
crack cocaine is retailed lends it to a higher degree of local street
violence than powder cocaine does," said Jim Pasco, executive
director of the national Fraternal Order of Police, which supports
raising penalties for powder cocaine to balance the sentencing gap.

Sessions acknowledged that many of his colleagues are wary of
appearing soft on crime by reducing penalties.

But critics of the current system, including many federal judges and
legal groups such as the American Bar Association, argue that it is
devastating inner-city neighborhoods -- more than 80 percent of the
crack offenders are black -- while clogging federal prisons with
low-level drug dealers.

In testimony before the U.S. Sentencing Commission earlier this
month, U.S. District Judge Reggie B. Walton, a former deputy drug
czar for the first President Bush, called the disparity "unconscionable."

The commission, an independent agency created by Congress to monitor
federal sentencing laws, has recommended changes to the current
structure three times since 1995, including an initial recommendation
to eliminate the disparity by lowering crack sentences.

The commission is again reviewing the disparity.

According to the commission, 25,762 drug offenders were prosecuted
under the federal sentencing laws in 2005. Almost half of those cases
involved crack or powder cocaine.