Closing the Gap

OBAMA COULD FIX COCAINE SENTENCING

The anti-drug Abuse Act of 1986 was one of Congress's more notable
efforts to get tough on drugs. Passed in the wake of the emotionally
resonant death-by-overdose of college basketball star Len Bias, the
law aimed a sledgehammer at crack-cocaine dealers. If federal
prosecutors convicted you of peddling five grams of crack, you got
the same five-year minimum sentence as someone dealing 500 grams of
powder. Unfortunately, the law was rooted in ignorance about crack's
potency, how the drug trade actually worked--and even about the cause
of Bias's death. He actually died from an overdose of powder--not
crack--cocaine.

Even many of the bill's architects now say it was a mistake. Last
year Joe Biden apologized: "Our intentions were good, but much of our
information was bad," he told a Senate subcommittee. But the law,
which led to racially biased prosecutions and a misallocation of
federal anti-drug resources, has stubbornly remained on the books.
That may be about to change.

That prospect comes courtesy of the Obama administration, which last
month announced a Justice Department review of federal sentencing
policy. "This administration firmly believes that the disparity in
crack- and powder-cocaine sentences is unwarranted, creates a
perception of unfairness, and must be eliminated," declared Attorney
General Eric Holder Jr. That is a very different view from that of
the Bush administration, which supported the policy, and of the
Clinton administration, which never strongly opposed it.

Why are the penalties for crack and powder so disparate? Largely
because legislators were told--and believed--that small-time crack
dealers were somehow on a par with big-time powder dealers, recalls
Eric Sterling, former counsel to the House Judiciary Committee. There
was also the notion that crack was a freakish demon drug--that it was
many times more addictive, a trigger for violence, and infinitely
more dangerous than powder in virtually every way. Those ideas turned
out to be either false or overstated.

Since 1995 the Sentencing Commission has been trying to set things
straight--partly because the law makes no sense and partly because it
has hit black communities particularly hard. More than 80 percent of
federal crack prosecutions are of African-Americans, despite evidence
that crack use is only slightly higher among blacks than among whites
or Hispanics. Congress, afraid of appearing weak on crime, has
consistently rejected the commission's recommendations for
reform--though, in 2007, the panel did retroactively reduce penalties
for certain offenders who had received longer sentences than the
statutory mandatory minimum.

The Supreme Court also has gotten into the act. In 2005 the court
ruled that the sentencing guidelines were advisory, not mandatory.
And in 2007 it declared that district judges could sentence criminals
less harshly than the guideline's provisions. In that decision,
Justice Ruth Bader Ginsburg noted the absurdity of hitting crack
dealers harder than the cocaine distributors who supplied them.

The administration's efforts could spark a sea change. "The symbolic
effect [of ending the crack/powder disparity] could be very
significant," says Marc Mauer of the Sentencing Project, a
Washington-based nonprofit. It would signal that America finally
recognized its anti-drug strategy was deeply flawed. And that
recognition, Mauer hopes, would lead to a hard look at federal and
state policies--which together have resulted in a quadrupling of the
prison population in the past 40 years with very little (except
ever-growing expenses) to show for it.

Sterling, now president of the Criminal Justice Policy Foundation,
also believes this moment may provide an opportunity for reflection.
Congress, he points out, never intended that so many precious federal
resources go toward prosecuting small-time crack dealers. The Feds
were supposed to dismantle the drug trade at the national and
international levels, targeting those who were killing Colombian
Supreme Court justices, and Mexican cops and prosecutors--those who,
as Ginsburg pointed out, were bringing in major quantities of product.

As we reassess how to fight the drug war, we should also note that
the threat is changing. The greatest danger from drugs is no longer
on the streets or in crack dens but in medicine cabinets, as the
rumors surrounding Michael Jackson's death remind us. Fatal drug
overdoses have been rising steadily since the early 1970s--and not
because of crack. Prescription opioid painkillers are now responsible
for more overdose deaths than heroin or cocaine, Dr. Leonard
Paulozzi, of the Centers for Disease Control, pointed out to a Senate
Judiciary subcommittee last year.

It's too much to expect that, in its first year, a new administration
could correct several decades of dimwitted drug policy. But it's not
too much to hope that it could make a decent start.