TAKE ANOTHER CRACK AT THAT COCAINE LAW

We Made Some Terrible Mistakes by Eric E. Sterling November 23,
2006

One of our most infamous contemporary laws is the 100-to-1 difference
in sentencing between crack cocaine and powder cocaine. Under federal
drug laws, prison sentences are usually tied to the quantity of drugs
the defendant trafficked. For example, selling 5,000 grams of powder
cocaine (about a briefcase full) gets a mandatory 10-year prison
sentence, but so does selling only 50 grams of crack cocaine (the
weight of a candy bar).

Working for the House Judiciary Committee in 1986, I wrote the House
bill that was the basis for that law. We made some terrible mistakes.

Those mistakes, aggravated by the Justice Department's misuse of the
penalties, have been a disaster. Conventional wisdom is that the
100-to-1 ratio needs to be repealed. But that's an inadequate fix.

Today, the U.S. Sentencing Commission-the independent agency that
gives sentencing guidelines to federal judges and advises
Congress-will hold hearings on this issue. If logic prevails, in the
next Congress we may finally see an end to one of the most unjust
laws passed in recent memory. And that might correct the biggest
mistake of my professional life.

We still cling to 20-year-old ideas that crack is somehow uniquely
harmful: It is instantly addictive; it makes you especially violent;
it causes women to abandon their babies; the babies of crack users
will be basket cases. None of these are true.

Also, because crack is no longer a big news story, people mistakenly
believe our anti-cocaine policy has worked. Not so. There is no
scarcity of cocaine. Since 1986, the price of cocaine has fallen and
the quality is better. Cocaine deaths have increased. The number of
crack users is basically unchanged.

The Myths of Crack and Cocaine

Drug sentences are on the national agenda again because civil-rights
supporters are justifiably outraged that almost all federal crack
prosecutions involve people of color. And indeed, for years no whites
were prosecuted for crack offenses in many federal courts, including
those in Los Angeles, Chicago, Miami, Denver, Dallas or Boston.

Because of that, the myth developed that Congress intended to punish
blacks-believed to be the crack users-with long sentences and let the
white powder cocaine sniffers of Hollywood and Wall Street get away
with light sentences. But that's not the case. Congress was trying to
remedy a problem it believed afflicted the black community.

A second myth is that Congress chose a 100-to-1 ratio because it
determined that crack was 100 times worse than powder cocaine. But
the weights chosen (5 and 50 grams, versus 500 and 5,000 grams)
weren't based on a comparison of the two drugs. Congress had no clear
understanding of drug trafficking-or the metric system-and thought
those weights indicated significant trafficking activity. In fact,
tons (millions of grams) of cocaine are shipped to the United States
by the leaders, organizers and financiers of the international drug trade.

The law was flawed, but the Justice Department still could have used
it to target high-level traffickers. But research from the U.S.
Sentencing Commission shows that three-quarters of the federal
cocaine defendants-powder and crack-are just neighborhood dealers or couriers.

Congress should do what it tried to do in 1986-make the Justice
Department focus exclusively on high-level cases because state and
local law enforcement cannot. There are three elements to fix the
problem: raise the quantity triggers for all drugs to realistic
levels for high-level traffickers, such as 50 or 100 kilos of
cocaine, and end the crack/powder imbalance; require the attorney
general to approve prosecution of any case involving less than 50
kilos of cocaine; analyze federal drug cases district by district to
identify agents and prosecutors who waste their time and our money.
If only high-level dealers were being prosecuted by the feds, no one
would have cause to complain about the race of the defendants.

A promising sign is that a few months ago, Sen. Jeff Sessions
(R-Ala.), a former U.S. attorney, introduced legislation to address
the problem. Action on his bill is unlikely before Congress adjourns,
but it had bipartisan support-a good sign that a political fix is viable.

The 20-year-old mistake of tiny quantity triggers has distracted both
the Justice Department from the proper cases and reformers from the proper fix.

For a generation, anti-drug policy has been built on factual mistakes
and tough-sounding rhetoric.

The American people simply need an effective policy. Truly, that
would be tough enough.

Eric E. Sterling, president of the nonprofit Criminal Justice Policy
Foundation in Silver Spring, Md., was counsel to the House Judiciary
Committee, principally responsible for anti-drug legislation.