SAME DRUG, DIFFERENT FORM, HIGHER MANDATORY MINIMUM

Get caught dealing 5 grams of crack and you will get at least five
years in a federal prison.

It would take a case involving 500 grams of powder cocaine to get the
same minimum sentence.

It's a discrepancy critics say leads to harsher punishments for
minorities and the poor, who experts say are more likely to buy and
sell crack because it's cheaper and more potent than powder.

The U.S. Sentencing Commission eased the sentencing guidelines for
crack dealers and users this month, dropping sentencing guidelines
two levels for crack offenders. That's good news for the 350 people
imprisoned on crack charges in the Scranton-based U.S. Middle
District of Pennsylvania, all of whom could be eligible for early
release.

What it does not affect, however, is mandatory minimum and maximum
sentences for powder and crack. They have to be changed by an act of
Congress. And until then, the two-level drop in sentencing guidelines
for crack cases is, as local attorney Joseph D'Andrea puts it,
"almost inconsequential."

The mandatory minimums treat crack offenders 100 times more harshly
than powder cocaine offenders, and can only be changed through
legislation.

Here in the Middle District of Pennsylvania, which includes
Lackawanna, Luzerne, Wayne, Monroe and Susquehanna counties, there
were sentencings in 133 crack cases from Oct. 1, 2006 through Aug.
30.

In the same time period, there were 70 sentencings in cocaine
cases.

Almost 70 percent of defendants in those crack cases were black, and
about 19 percent were Hispanic. About 12 percent were white,
according to data kept by Len Bogart, chief U.S. probation officer in
Scranton.

The mandatory minimum sentences for crack and cocaine were passed by
Congress in 1986, just after crack began emerging in urban areas.
Dealing crack was often associated with levels of violence that were
unprecedented at the time, according to Columbia Law School Professor
Daniel C. Richman, J.D., as dealers fought for territory and customers.

"There was a feeling in Congress that a crack epidemic was about to
hit and we had to be prepared," Dr. Richman said.

Those fears never really came true, though, according to a 2002
report by the U.S. Sentencing Commission.

"The current penalty structure was based on many beliefs about the
association of crack cocaine offenses with certain harmful conduct --
particularly violence -- that are no longer accurate," the report
reads.

"In 2000, for example, three-quarters of federal crack cocaine
offenders had no personal weapon involvement, and only 2.3 percent
discharged a weapon."

No Significant Difference

Cocaine, or hydrochloride salt, is snorted or injected. Crack is made
by dissolving powder cocaine in a mixture of water and ammonia or
baking soda.

The mixture is boiled until a solid substance forms. The process
removes the salt, which concentrates the drug, making it more
attractive to users because crack is both cheaper and more potent.

But experts, including the U.S. Sentencing Commission, have concluded
there's not much difference between crack and powder cocaine, though
powder cocaine poses a lesser risk of addiction because it is usually
snorted.

"There's no rational reason for the disparity ... and everyone knows
it," said U.S. Rep. Robert C. Scott, D-Va., chairman of the House
Judiciary Committee's Subcommittee on Crime, Terrorism and Homeland
Security.

Mr. Scott is one of many who say the harsher penalties for crack
offenses target minorities and the poor.

"On its face, the legislation doesn't target minorities," U.S.
District Judge Thomas I. Vanaskie said. "But data shows that most
crack defendants are minorities."

In its 2007 report to Congress, the U.S. Sentencing Commission noted
that about 82 percent of crack offenders in 2006 were black and about
9 percent of crack offenders were white.

Making the Sentence Fit

Mr. Scott, who says he plans to hold hearings on the issue early next
year, is not alone in calling for a harder look at legislation to
close the gap between crack and powder cocaine sentencing minimums.

Senators Orrin Hatch, R-Utah, and Patrick Leahy, D-Vt., have both
asked the U.S. Sentencing Commission to examine federal cocaine
penalties and study certain specific issues.

Mr. Scott, like many, feels the solution lies with getting rid of
mandatory minimum and maximum sentences altogether, because the
one-size-fits-all approach isn't sound.

Mr. Scott argues mandatory minimum and maximum sentences don't take
into account the details of each individual case, nor do they allow
for leniency when a defendant has made efforts toward rehabilitation
after being arrested.

"Courts across the country are really struggling with this," Judge
Vanaskie said. "A 2002 report from the U.S. Sentencing Commission
recommended that crack be treated the same as methamphetamine, a
20-to-1 ratio instead of 100-to-1."

That recommendation was never acted upon, Judge Vanaskie said, and a
federal appellate court said judges have to look at each case
individually, though they cannot sentence someone to less time than
the mandatory minimum sentence or more time than the mandatory
maximum because those are set by legislators.

It's ridiculous to have legislators making those decisions, Mr. Scott
said, because "they can't know how well that sentence fits" the
particular circumstances surrounding any particular case.

Despite concerns from Mr. Scott and other members of Congress, local
officials and national experts say it's unlikely that legislation
lowering or abolishing mandatory minimum sentences for crack cocaine
offenders will pass -- at least in the near future.

"Ninety-nine out of 100 people running for re-election won't vote to
decrease penalties," Mr. D'Andrea said. "That's political suicide,
even if it's the right thing to do."