A THIRD WAY ON DRUG LAWS

Some say that the state of Michoacan, deep in south 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 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 five grams of crack cocaine or 500 grams of powder cocaine.

At that time, crack was certainly producing more violence on the
streets than powder cocaine, and beat cops were expressing
frustration at this ever-increasing drug market. Undoubtedly it was a
time to enact "tough" legislation. But today, more than 20 years
later, drug-related killings remain commonplace in that region of
Mexico. Six police officers were found dead there one day last month.
And though crack cocaine use has decreased dramatically since the
mid-1980s, the debate over what to do about our drug problem rages on.

On the same day as the recent police killings 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 five grams of crack cocaine continue
to trigger the same sentence as 500 grams of powder cocaine? The
answer is clearly no.

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, since
there is little national demographic data on traffickers. Still, this
law undoubtedly helps funnel young black men (a mind-boggling 85
percent of federal defendants in crack cocaine cases are black) into
prison at rates that should cause us concern.

Most of these people are street-level dealers rather than high-level
traffickers. Theoretically, a mid-to-high-level dealer caught with
499 grams of cocaine could get a lighter sentence than any one of the
scores of much lower-level crack dealers he supplied the drug to
(crack is a simple combination of powder cocaine and baking soda).
Perhaps most troubling, 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 -- witness the massive
problems of legalized drugs in other places (remember Switzerland's
Needle Park?) or legalized tobacco today (where commercialization
fuels addiction and high profits).

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
massive increases in drug use. Erasing or dramatically closing the
gap between the sentences for crack cocaine and powder cocaine is a
good example of this.

The commission last argued for a 20-to-1 sentencing ratio (as opposed
to the present 100-to-1) as a politically sensitive solution, and
some members of Congress have argued for wiping out the distinction
altogether. Just about anything would be better than current policy.

It sounds easier than it is, of course, but the current political
climate may be just right. President Bush, two days before his first
inauguration, expressed a desire for a change, telling CNN that the
law "ought to be addressed by making sure the powder cocaine and the
crack cocaine penalties are the same," because he didn't "believe we
ought to be discriminatory." With the president now saying he is
ready to work with the newly elected Democratic leadership, reform
could be within reach.

Such a move would be more about making our drug policies "smart," and
less about looking "tough." And it certainly would be about time.