SANITY AND SENTENCING

The Supreme Court's Ruling on Federal Cocaine Sentences Could Be a
Turning Point--Toward Justice and Righting an Old Wrong.

For two decades, the United States has pursued, prosecuted and
sentenced cocaine offenders in a way that borders on
insanity--targeting petty criminals over serious drug dealers--while
fostering contempt, instead of respect, for the policies that have
sent tens of thousands to jail. On Monday, the Supreme Court said
enough was enough and empowered federal judges to reject sentencing
guidelines rooted in hysteria and ignorance.

The move has considerable support on the federal bench.

It allows judges "who actually see the people and understand the
local community," to better consider their communities' best
interests, said Jack B. Weinstein, a federal district judge in New York.

The significance of the issue--and the enormity of the shift in
expert opinion--was underscored a day later.

The U.S. Sentencing Commission took the unprecedented step of
announcing, unanimously, that nearly 20,000 federal inmates convicted
of crack possession could apply for (relatively small) reductions in
sentences. "In this business, you don't get too many good days ...
Now, two in a row," said Marc Mauer of the Sentencing Project, a
Washington-based organization that tracks criminal-justice trends.

The court's two 7-2 decisions--authored by Ruth Bader Ginsburg and
John Paul Stevens, respectively--contained no rousing rhetoric; they
methodically built on the logic of two prior opinions.

But Ginsburg's ruling catalogued, at length, criticisms of federal
cocaine policy. "This may be the first sentencing decision since the
mid 1980s that actually talks about justice, that seems to have some
blood in it," said Graham Boyd, director of the ACLU's drug law
reform project. Boyd compared the potential impact of Ginsburg's
decision to the famous Brown v. Board of Education desegregation
ruling. "When the Supreme Court says that something is wrong, the
other institutions of government pay attention," said Boyd.

Ginsburg's carefully worded decision did not exactly say the Feds
were wrong, but it explicitly gave federal judges permission to reach
that conclusion on their own. The case revolved around a former
Marine who had fought in Desert Storm and had no prior convictions
and a good work record.

Police found Derrick Kimbrough and a companion in a car with crack,
powder cocaine and a gun. Kimbrough's guilty plea to four felonies
should have sent him to prison for at least 19 years.

The trial judge noted that had Kimbrough possessed powder cocaine in
the same quantity as the combination of powder and crack, his
potential prison time would have been more than halved. Judge Raymond
Jackson split the difference, sentencing Kimbrough to 15 years.

The appeals court said he was out of line; the Supreme Court ruled he was not.

On its face, the debate was over how much deference had to be paid to
the guidelines; but it was also over whether those guidelines made
sense. For embodied in them was the notion that a defendant caught
with 50 grams of crack should face the same penalty as one with 5,000
grams of powder cocaine.

Yet, crack is nothing more than powder cocaine and baking soda
dissolved in water that is boiled away. And, as Ginsburg pointed out,
they "have the same physiological and psychotropic effects." So why
is possession treated so differently?

The answer lies in the Anti-Drug Abuse Act of 1986. In crafting the
law, Congress concluded that someone dealing a small quantity of
crack was the functional equivalent of someone dealing a large
quantity of powder.

Why conclude such a strange thing?

Eric Sterling, then assistant counsel to the House Committee on the
Judiciary, fingers an "expert consultant" named Jehru St. Valentine
Brown. A narcotics detective when not advising Congress, Brown
convinced legislators that "a trafficker in 20 grams of crack cocaine
was trafficking at the same 'serious' level ... as a trafficker in
1,000 grams of powder cocaine," said Sterling. Given such expert
advice, it made sense to treat the drugs very differently--all the
more so given the widespread conviction that crack was a
superaddictive drug, spawning crack babies and rampant violence on a
scale society had never before encountered. Fear took the place of
science, leading the sentencing commission to adopt and build upon
the 100-to-1 scheme embodied in the statute.

The result has been a tragic playing out of the law of unintended
consequences. Instead of focusing on dangerous drug kingpins, federal
efforts have been mostly directed at people possessing relatively
small amounts of crack.

Only 7 percent of federal cocaine cases are directed at high-level
traffickers, with a third of all cases involving quantities that
weigh less than a small candy bar, says Sterling, who now runs the
Criminal Justice Policy Foundation: "Street-level crack dealers are
actually punished 300 times more severely than high-level cocaine
powder traffickers on a punishment-per-gram basis." To add to the
mess, drug policy has become highly racialized. As Ginsberg noted,
approximately 85 percent of those convicted of crack offenses in
federal court are black--even though more whites use crack than blacks.

The numbers, says Sterling, reflect "conventions of law enforcement"
and a predisposition toward "prosecuting a class of lowlifes who
happen to be people of color."

Whether this is indeed a watershed moment is yet to be seen. Even the
Supreme Court's influence is limited.

In the end, "all the courts do is interpret the law," said Deborah
Small of Break the Chains, a New York nonprofit promoting drug-policy reform.

But Judge Weinstein is among those who believe things are changing.
"There is a sense of a turning point," he told NEWSWEEK. "And partly
it's due to economics. The cost [of the current path] is tremendous,
to the community and to taxpayers."

For more than a decade, the sentencing commission has been urging
Congress to rethink the law and its crack-powder ratio to no avail.
This year, the commission took matters in its own hands and slightly
reduced the sentencing disparity.

And it again appealed to Congress to change the underlying law. The
message is simple: it's not just that the "get tough" policies of the
1980s don't work; they actually do harm--by, among other things,
undermining faith in the fairness and efficacy of the justice system itself.

The Supreme Court finally has noticed that. It's time that Congress
did the same.