BEYOND THE FAIR SENTENCING ACT

This year's historic vote in Congress to scale back the harsh and
racially disparate mandatory sentences for federal crack cocaine
offenses was a watershed event in the long campaign for a more
rational approach to drug policy.

The Fair Sentencing Act is expected to benefit about 3,000 defendants
a year, with an average sentence reduction of twenty-seven months.

Defendants convicted of possessing as little as five grams of
crack-the weight of two pennies-no longer receive a mandatory five
years in prison, and the quantity-based sentencing disparity between
crack and powder cocaine offenses has been significantly reduced.

The true value of the new law will be seen, however, only if it helps
to open the door to more widespread drug policy reform.

As welcome as the reforms are, they leave in place the broad
structure of mandatory sentencing for most drug offenses, under which
judges have no discretion to consider mitigating circumstances such
as the defendant's age, parenthood or history of abuse.

Such policies have produced outcomes as bizarre as the
fifty-five-year prison sentence imposed in 2004 on Weldon Angelos, a
24-year-old music producer in Utah with no prior felony convictions.
On three separate occasions, Angelos sold about $350 worth of
marijuana to a police informant. At each sale, Angelos possessed a
gun, which he neither used nor threatened to use. Yet under the terms
of federal mandatory penalties, Judge Paul Cassell, a George W. Bush
appointee, was required to impose what was essentially a life
sentence, which he called "unjust, cruel, and even irrational."

In recent years states across the nation have been re-evaluating the
excesses of their sentencing policies.

In Michigan the extreme "650 Lifer Law," whereby even a first-time
offender convicted of selling 650 grams of heroin or cocaine would
receive a sentence of life without parole (the same as for
first-degree murder), was finally scaled back in the late 1990s after
being on the books for twenty years. Former Republican Governor
William Milliken, who had signed the law into effect, called it "the
worst mistake of my career." Similarly, the rollback of New York's
notorious Rockefeller Drug Law in 2009 marked a milestone after
decades of campaigning.

The federal crack reform continues this incremental move toward more
rational sentencing policies, but much work remains to be done. Drug
courts, for example, have been shown to help divert low-level
offenders into treatment rather than prison, but many of them impose
strict criteria for admission, often focusing on cases in which
prison terms would be unlikely to be imposed even without the
program. School-zone drug laws, imposed with the inarguable goal of
reducing drug sales to children, often apply as well to drug sales
between consenting adults.

This has a predictable racial impact, because large portions of
densely populated urban areas, disproportionately comprising
communities of color, lie within a school zone. In New Jersey, fully
96 percent of such penalties were imposed on African-Americans or
Latinos, an outcome that in 2010 persuaded the legislature to restore
discretion to judges in such cases.

The first test of the impact of the Fair Sentencing Act will come
when the US Sentencing Commission votes on whether to apply the
guideline changes retroactively to the thousands of people who
committed their crack cocaine offense before the bill was signed.
Along with that, the commission's report on mandatory sentencing, due
out next year, may help to strengthen the argument about excessive punishments.

Ultimately, the scope of reform can be measured only by our ability
to level the playing field in addressing substance abuse.

While the war on drugs has been waged for decades, it is actually two
very distinct wars. In well-heeled communities substance abuse is
treated as a public health problem best addressed by prevention and
treatment. In low-income communities of color, it is far more likely
to be considered a criminal justice problem, one best addressed with
more police, prosecutors and prisons.

We have a better model at hand; the challenge is to implement it more
broadly and equitably.