COCAINE, RACE AND JUSTICE

It's possible to be tough on drug criminals without being soft on
common sense. For two decades, however, Congress' desire to appear
hard-nosed has run afoul of sense and fairness.

Specifically, a law passed in 1986 - during the height of America's
"war on drugs" - treats cocaine offenders drastically different,
depending on what form of the drug they have: powder or crack. One is
snorted, the other smoked. Both produce a euphoric high. But criminals
who sell 500 grams of powder cocaine face the same sentence as crack
offenders selling 5 grams, the weight of a couple of sugar packets.

This disparity has come under increased scrutiny and criticism from
legal, medical and policy experts, who say the laws are, in effect,
racist. Indeed, in the 1980s powdered cocaine became popular among
affluent Americans, while considerably cheaper crack rocks found an
audience of abusers on urban streets. Even now, 85 percent of crack
offenders sentenced under federal law are black.

"There's no scientific justification to support the current laws,"
argues Dr. Nora Volkow, director of the National Institute on Drug
Abuse.

Two recent federal actions represent small steps toward narrowing the
sentencing gap.

First, the U.S. Sentencing Commission - the agency that establishes
sentencing policies and practices for federal courts - decided in
November to cut the range for crack offenses. First-time violators
with 5 grams or more of crack now face 51 to 63 months behind bars,
instead of 63 to 78 months.

On Dec. 11 the commission made the decision retroactive, meaning as
many as 19,000 federal prisoners could seek a sentencing reduction. It
will be up to judges to decide.

Second, in a Dec. 10 ruling, the U.S. Supreme Court reaffirmed the
right of judges to use their judgment when sentencing federal drug
offenders. The case before the court involved a Gulf War veteran
arrested in Virginia. It wasn't the 90 grams of powder cocaine
possessed by Derrick Kimbrough that threatened him with two decades of
prison time; it was the 56 grams of crack he had. Still, a district
judge gave him a reduced sentence of 15 years, noting that Kimbrough's
case exemplified the "disproportionate and unjust effect that crack
cocaine guidelines have in sentencing."

An appeals court overruled him. The high court, however, rightly
concluded that the original judge acted reasonably. "In making that
determination, the judge may consider the disparity between the
guidelines' treatment of crack and powder cocaine offenses," Justice
Ruth Bader Ginsburg wrote for the 7-2 majority.

We appreciate why lawmakers cracked down on crack in the 1980s. It is
a potent, addictive, destructive variant of a known devil. But a
cocaine user is a cocaine user. The 100-to-1 ratio for powder cocaine
and crack users is so outrageous that it is absolutely fair to raise
questions of race and class in the law's enforcement.

Americans can - and should - debate whether the "war on drugs" is a
sound strategy. What should be beyond debate is that America's
judicial system must be just. These cocaine laws are not; the
penalties should be more equitable.