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THE CHICAGO TRIBUNE

"DISPARITY IN CRACK, POWDER COCAINE SENTENCES"
Published: Monday, August 4, 1997
Section: COMMENTARY
Page: 11
By Eric E. Sterling.
Eric E. Sterling helped write the crack cocaine mandatory sentences as
counsel to the House Judiciary Committee in 1986.

The debate about crack and powder cocaine sentencing misses the big
picture. In 1986, Congress gave the U.S. Justice Department a
powerful tool to attack highlevel drug traffickersmandatory
minimum prison sentences. Since then, 95 percent of the crack dealers
sent to federal prison have not been highlevel dealers. More than 60
percent have been bodyguards, couriers or streetlevel operatorsthe
lowlevel offenders.

What outrages many observers is that almost 90 percent of these
lowlevel federal prosecutions involve AfricanAmerican meneven
though a substantially larger percentage of whites used crack cocaine
than blacks in 1994. Why are so many lowlevel crack dealers ending
up in federal court? In its preelection haste, Congress set the
quantities defining two classes of highlevel drug traffickers at
absurdly low levelsone at 5 grams and the other at 50 grams of
crack cocaine. The quantities for powder cocaine were slightly more
reasonable500 grams and 5 kilograms. Some AfricanAmerican
lawmakers have seen Congress' mistaken 100to1 cocainetocrack
ratio as the reason why so many black males were going to federal
prison. They suggest creating quantitative parity between the two
types of cocaine. Scientists have shown that cocaine is equally
addictive whether it is powder or crack. In 1995, the U.S. Sentencing
Commission recommended moving to a 1to1 ratio between the two forms
of cocaine (at the powder cocaine levels of 500 and 5,000 grams) for
general sentencing purposes. Last week, the president adopted the
recommendations of Atty. Gen. Janet Reno and drug czar Barry
McCaffrey to change the mandatory minimum sentencing statute to 25
grams and 250 grams. But the statute is not the key to the problem.
The key is that federal prosecutorial power is discretionary. The
Justice Department picks which cases go to federal court. They should
be the most important ones but they aren't. The U.S. Sentencing
Commission's 1995 report revealed that of the 3,100 federal crack
defendants in 1994 only 5 percent were highlevel offenders. Federal
power is being wasted on smallfry. If the Feds were focusing on
highlevel dealers, the racial disparity in cocaine sentencing would
disappear. Federal anticocaine efforts should be focused on those
who ship cocaine by the ton, in 1 milliongram loads, not the 5gram,
50gram street criminals. If there is any force on the globe that can
successfully challenge the cocaine dealers' billions of dollars in
revenues and private armies. it's U.S. law enforcementbut not if
the officials are running down hoodlums at the corner crack house.
These lowlevel, nonwhite drug defendants are the least important
drug trafficking offenders even though they are getting longer
sentences than highlevel drug traffickers62 percent longer than
the average federal heroin sentence. Isn't this evidence of a
"pattern or practice" of racial discrimination? That is why the
Congressional Black Caucus is outraged. Lowlevel Drug Enforcement
Aministration agents and prosecutors are making these decisions
without effective supervision by the U.S. attorney general. Arguing
about the sentences for 5gram, 25gram, 50gram or 100gram cases
when cocaine floods in milliongram and multimilliongram shipments,
is a debate about the size of the minnows. We must stop letting the
Justice Department, the attorney general and the "drug czar" off the
hook as the big fish get away. It's time for Americans to stop
cheerleading and yell at the coach. Copyright 1997, The Tribune
Company. Unauthorized reproduction prohibited.

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Eric E. Sterling (esterling@igc.org)
President, The Criminal Justice Policy Foundation
1899 L Street, NW, Suite 500
Washington, DC 200363804
Tel. 2028359075 Fax 2028338561