CONGRESS MUST FIX INEQUITABLE DRUG SENTENCES

Barry Scheck's commentary urging sensible and equitable reform of federal
mandatory minimum sentencing laws omitted their most indefensible and
racially discriminatory aspect: the gaping disparity in penalties for drug
offenses involving powdered cocaine and those involving crack cocaine.

Federal law subjects any person guilty of a drug offense involving 5 grams
or more of crack cocaine to a mandatory minimum sentence of five years. But
the amount of powdered cocaine necessary to earn the same sentence is 500
grams.

The U.S. Sentencing Commission and Congress acknowledged in the mid-1990s
the absence of any policy justification for this disparity even while
detailing its racially discriminatory effect. Having allowed this
overwhelming evidence to languish for a decade, let us hope that Congress
will now act to sensibly cure this injustice.

The sentencing commission twice reported in the mid-1990s on the racially
discriminatory effect of the ratio between the penalties prescribed for
crack and powdered cocaine.

In 1995, the commission reported that "sentencing data leads to the
inescapable conclusion that blacks comprised the largest percentage of
those affected by the penalties associated with crack cocaine." It found
that as of 1993, black Americans accounted for 88.3 percent of federal
crack cocaine convictions.

In April 1997, the commission reported that "nearly 90 percent of the
offenders convicted in federal court for crack cocaine distribution are
African-American while the majority of powdered cocaine users are white."

A number of federal appeals courts have recognized the undeniable
statistical evidence regarding the ratio's disparate and discriminatory
racial impact. All of this led the commission to recommend in both 1995 and
1997 that the ratio disparity be eliminated.

The overwhelming evidence caused the House Judiciary Committee in 1995 to
observe that while "the evidence clearly indicates that there was
significant distinctions between crack and powdered cocaine that warrant
maintaining longer sentences for crack related offenses, it should be noted
that the current 100-to-1 quantity ratio may not be an appropriate ratio."

The Judiciary Committee further observed that amendments were needed to
"uphold basic principles of equity" in the federal criminal code.
Nonetheless, no reform was achieved, and another decade of mounting
injustice has followed.

Even in 1995, it was recognized that relevant scientific data and empirical
evidence did not support the ratio disparity between crack and powdered
cocaine. Crack was once thought to be pharmacologically distinct from
powdered cocaine, but, while differing in composition, texture, appearance
and usual means of consumption, crack and powdered cocaine are comprised of
cocaine hydrochloride and produce similar physiological and psychotropic
effects, the sentencing commission reported in 1995.

As far back as 1991, the Department of Justice had determined that powdered
cocaine was a more popular drug than crack, with five times more powdered
cocaine users than crack users.

The physiological dangers posed by powdered cocaine, one court has
observed, are greater than for crack because powdered cocaine poses a
greater risk of heart and lung disease than crack, and the death rate among
powdered cocaine users is three times higher than the rate for crack users.

The sentencing commission has found that stereotypical conceptions of crack
users being more prone to violent crime is not supported by evidence or
experience, although a greater percentage of all crack offenders carry
weapons, a factor that, as Scheck notes, greatly increases federal sentences.

The sentencing commission reported in 1995 that contrary to popular
perception, there was no reliable data to establish that crack contributes
to more births of cocaine-addicted babies than powdered cocaine does.

Powdered cocaine is a necessary precursor to crack cocaine. Crack cocaine
cannot be manufactured without powdered cocaine, as the sentencing
commission reported in 1995.

The racially discriminatory disparity in federal sentencing laws for
powdered and crack cocaine is a direct and severe affront to equity and
justice. A decade ago, the sentencing commission and Congress acknowledged
the absence of any sound policy grounds to excuse this pernicious law.

Congress should act to eliminate this indefensible disparity. Robert L.
Abell is a Lexington lawyer.