REVISIT CRACK SENTENCES

Congress Nixed Outrageous Prison Terms for Crack Offenders, but the
Decision Should Be Applied Retroactively.

For years, judges, academics, defense lawyers and even the U.S.
Sentencing Commission -- the federal agency charged with
responsibility for developing fair sentencing guidelines -- have
condemned as unfair and unfounded the laws passed by Congress in the
late 1980s that punish crack cocaine offenses much more severely than
crimes involving powder cocaine. Average crack sentences have been
about 10 years; powder cocaine sentences, seven years. Most
notoriously, the laws wallop those who deal in as little as 5 grams
of crack with the same five-year mandatory minimum prison term as
those caught dealing 500 grams of powder cocaine. Lawmakers have
stubbornly refused to close this 100-1 ratio.

This week, Congress finally tacitly conceded that crack-related
penalties are too harsh. On Thursday, lawmakers let pass into law new
guidelines proposed by the Sentencing Commission that will cut crack
prison terms by an average of just over two years, with the amount of
narcotics involved still playing the determining factor in the length
of sentences.

Now the commission needs to finish the job. On Nov. 13, it will hold
a public hearing to consider whether the new scheme should be applied
retroactively -- a move that could potentially reduce the sentences
of nearly 20,000 men and women currently incarcerated for crimes
involving crack. Backed by Congress' silent support, retroactive
application is the right thing to do for the following reasons:

First, myths about crack, on which the 1980s laws were based, have
been debunked. When those laws were introduced, Congress believed
that crack was instantly addicting. Lawmakers feared that a
generation of "crack babies" would plague the nation for years to
come and believed there was a direct link between crack use and the
commission of violent crimes.

It turns out that lawmakers were wrong. Relying on a finding detailed
in the Journal of the American Medical Assn., the Sentencing
Commission recently reported to Congress that crack is
pharmacologically indistinguishable from, and produces harms no more
severe than, powder cocaine, even to the unborn. The commission's
research also showed that crack's use never reached the epidemic
proportions that so many expected and that its consumption bears no
higher correlation to violent crime than does that of other drugs.

What's more, the laws' objective of targeting high-level drug
traffickers largely failed. The majority of crack offenders doing
time today were street dealers, couriers and lookouts.

It only makes sense that crack offenders locked up for long stretches
over the last 20 years because of laws based on false premises should
have the opportunity to pursue the benefits of this week's
long-overdue remedy. What's appropriate for a crack offender tomorrow
is appropriate for yesterday's offender as well.

Second, the 1980s' crack laws disproportionately affect minorities.
About 80% of the 25,000 federal defendants jailed for crack offenses
during the last five years have been black. This has created the
perception that federal drug laws intentionally discriminate against
minorities. If the new sentencing scheme is not applied
retroactively, this perception will be perpetuated, further eroding
confidence in the judicial system and respect for the law.

Third, Congress, in establishing the Sentencing Commission and
enacting federal sentencing guidelines in 1987, specifically sought
to eliminate incongruent penalties imposed on similarly situated
defendants. If the commission does not apply the new crack penalty
structure to those convicted before Nov. 1, it will undermine its own
cause. Moreover, retroactive application is consistent with past
modifications to other drug penalties, such as those for LSD,
marijuana and oxycodone.

Finally, retroactive application would place no extraordinary burden
on the courts. The primary fact necessary to recalculate prison time
- -- the amount of crack involved -- already would have been determined
in connection with offenders' original cases. Thus, while the courts
likely would be flooded with requests for changed sentences, they
wouldn't have to hold new hearings. Most motions could be dealt with
on paper. Experience with other recent changes to federal sentencing
laws has shown that the system is capable of revisiting many
thousands of cases when justice so requires.

Opportunities to neatly turn back time on social injustices are rare.
The new crack sentencing scheme presents one such chance. The
Sentencing Commission should take advantage of this opening. To do
otherwise is to compound the mistakes made when Congress first
introduced harsh penalties for crack offenses.