REVISITING DRUG SENTENCES

This nation's harsh drug sentencing laws, now nearly two decades old, are
causing low-level first-time offenders to serve ever-longer prison terms.
Drug cases now account for one-third of federal criminal court dockets.
These findings, from a new Justice Department study, are a familiar,
disturbing story. It has gone on for so long because the same lawmakers who
regularly decry rising prison costs, crowded court calendars and
decades-long sentences for small amounts of drugs are too gutless to change
laws imposing mandatory prison terms. A federal circuit court decision
earlier this month may finally force the issue.

A panel of the U.S. 9th Circuit Court of Appeals in San Francisco struck
down parts of the 1984 drug sentencing law that allowed judges to increase
a defendant's possible sentence, depending on the amount and purity of
drugs involved. The appeals court said in the Aug. 9 ruling that
determining the actual amount of a drug in a case is the job of the jury,
which decides the facts. The bottom line is that if the ruling stands,
which is far from certain, thousands of previous federal drug sentences
could be overturned because, the court said, the process by which judges
arrived at those sentences is unconstitutional.

The appeals court decision comes at an interesting moment, with even the
new conservative administration expressing some interest in tempering the
law. Federal judges of all political stripes have long disparaged the rigid
sentencing in the 1984 law. Federal guidelines and statutes have turned
judges into accountants who, once a jury convicts, look up the crime and
any enhancing or mitigating factors in pages of tables and calculate the
sentence. End of story.

The mandatory minimums are also unfair by another measure. Those convicted
of possessing 500 grams of powder cocaine draw a mandatory five-year term.
It takes only five grams of crack--cocaine in a different form--to draw the
same minimum term. Lawmakers justified this 100-to-1 disparity by pointing
to violence in the crack trade. But the result has been the
disproportionate incarceration of African American crack offenders.

The federal Sentencing Commission has over the years recommended softening
the law's harsh impact. But for Congress and recent presidents, the perils
of appearing to coddle criminals always won over a rational and humane
policy. Now even some conservatives, including Sen. Jeff Sessions (R-Ala.)
and Asa Hutchinson, the head of the Drug Enforcement Administration, want
to revisit the sentencing issue. The appeals court decision should give
them the political cover they apparently need.