DRUG-PENALTY DISPARITIES UNDERMINE THE LAW

Some say the state of Michoacan in Mexico is where the "war on drugs"
really started, back in 1985. It was there that Mexican drug lords
upped the stakes by burying in a shallow grave the body of a young
U.S. Drug Enforcement Administration agent, Enrique Camarena, whom
they had kidnapped and killed.

The U.S. Congress responded months later with strict anti-drug laws,
including a mandatory minimum sentence of 10 years in prison for
anyone trafficking in 5 grams, or more, of crack cocaine or 500 grams,
or more, of powdered cocaine.

Crack was producing more violence on the streets of the United States
at that time than powdered cocaine. It was a time to enact "tough"
legislation.

But today, drug-related killings remain commonplace in the Michoacan
region of Mexico. Six police officers were found dead there one day
last month. And although crack cocaine use in the United States has
decreased dramatically since the mid-1980s, the debate rages over what
to do about our drug problem. It is time for the Bush administration
and Congress to get "smart" on drug issues instead of merely "tough."

On the same day the recent police killings were discovered in Mexico,
the U.S. Sentencing Commission - an independent judicial body that
advises Congress on sentencing laws - held hearings on the
effectiveness of the federal cocaine law. Should 5 grams of crack
cocaine continue to trigger the same sentence as 500 grams of powdered
cocaine? The answer, witnesses before the commission testified, is no.
They said the sentencing disparity is not only unfair, but detracts
from the effectiveness of drug efforts.

The sentencing commission has written that there is a "widely held
perception that the current penalty structure promotes unwarranted
disparity based on race." The evidence that trafficking laws
disproportionately affect blacks is hard to quantify, because there is
little national demographic data on traffickers. Still, this law
undoubtedly helps funnel young black men (85 percent of federal
defendants in crack cocaine cases are black) into prison at rates that
should cause concern. Powdered cocaine, by contrast, is widely seen as
a recreational drug of affluent whites.

Most of the blacks imprisoned are street-level dealers rather than
high-level traffickers. Theoretically, a mid-to-high-level dealer
caught with 499 grams of cocaine powder could get a lighter sentence
than any one of the scores of much lower-level crack dealers he
supplied with the drug.

The law does not take into account the level of the dealer; a
small-time dealer often gets a stiffer sentence because he or she has
more convictions (sometimes petty).

Experts on the subject say the law has caused many Americans to lose
faith in the criminal justice system even as it has increased racial
division.

If current laws are unjustified, what are the alternatives? Many
drug-policy activists will tell you that "our laws don't work" and
then quickly conclude that legalization is the most sensible solution.
But there's no evidence that works either. If addiction, sickness and
community decay are concerns, then it must be said that drug
legalization has failed as a social experiment.

But of course no serious drug-policy analyst can look you in the eye
and tell you that our only alternatives are strict prohibition or lax
legalization. There is, in fact, a comfortable position closer to the
middle: We can reform the worst parts of our laws without fearing huge
increases in drug use. Just about anything would be an improvement.