TAKE ANOTHER CRACK AT THAT OUT-OF-WHACK COCAINE LAW

One of our most infamous contemporary laws is the 100-1 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 100-1
ratio needs to be repealed. But that's an inadequate fix.

On Tuesday, 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.

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 100-1 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 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.

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 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, from
1979 to 1989.