POLITICS HINDERS EFFORT TO TRIM SENTENCING DISPARITY

Politics should have no place in determining the appropriate punishment for
a criminal offense. The punishment imposed for the offense should reflect
the harm that the individual has inflicted upon the victim or society.
Consistency and proportionality should also be considered.

However, logic gets tossed out the window when it comes to federal drug
sentencing policy.

Under the federal criminal drug laws, a person possessing, distributing or
importing 5 grams of crack cocaine is subject to a mandatory minimum
penalty of five years incarceration. If the person has any prior felony
drug conviction, including possession, the minimum mandatory penalty is 10
years. For an offense involving 50 grams of crack, the mandatory minimum
prison sentence is 10 years. If the person has one prior drug conviction,
the mandatory minimum sentence is 20 years. If the person has two prior
felony drug convictions, the mandatory penalty is life imprisonment.

By contrast, the triggers for the same sentences for people distributing or
importing powder cocaine are 500 grams and 5 kilograms respectively, a
difference of 100 to 1.

This disparity has been the subject of much debate in the criminal law
community and the African-American community. Opponents generally argue
that the disparity is racially biased and violates the equal protection
clause of the 14th Amendment. Proponents generally argue that the 100- to-1
ratio is justified because crack is a more potent and dangerous drug than
powder cocaine. Both sides are partly right and partly wrong.

The problem with the equal protection argument is that the law is race
neutral: Anybody who possesses the requisite quantity of crack is subject
to the same penalties, regardless of race. Of course, the opponents will
point to statistics and say that a disparate number of African-Americans
are prosecuted and incarcerated for crack offenses. However, racial
disparity in and of itself has never been sufficient to prevail on an equal
protection challenge. It's akin to saying that the child pornography laws
are racially biased because the vast majority of offenders are middle aged
white men.

The argument that the current sentencing scheme is justified because crack
is a more dangerous drug fails because the 100-to-1 ratio is not supported
by any scientific or societal justification. The law was arbitrarily and
hastily adopted by Congress in response to the crack epidemic of the mid
1980s. Since then, the idea that crack cocaine is 100 times more potent
than powder cocaine has been completely discredited by the scientific and
medical community.

The U.S. Sentencing Commission has recently submitted a report to Congress
which recommends that the ratio for crack cocaine and powder cocaine
penalties be reduced to 20 to 1. However, the measure stands little chance
of passing because politicians do not want to appear soft on crime.

The Sentencing Commission's report sets forth in exhaustive detail the
reasoning for its recommendation. The report demonstrates that the
penalties do not provide a deterrent effect because the price of cocaine
has steadily decreased since the laws were enacted. In addition, the report
shows that the fears of crack babies and violent bloodshed which prompted
the 100 to 1 ratio have not been realized.

Congress should adopt the Sentencing Commission's recommendation. A basic
tenet of criminal jurisprudence is that the punishment should reflect the
harm that a criminal inflicts upon society. Simply put, a person who sells
an Altoid box full of crack cocaine is not 100 times as harmful to society
as a person who sells or imports more than five coffee cans of powder cocaine.

The average crack dealers prosecuted in the federal courts are African-
American males between the ages of 20 and 35. They are generally uneducated
and poor. Most have been involved with a state criminal justice system,
such as Florida's, that does not differentiate between powder and crack. In
addition, the crack dealers are on the lowest rung of the drug distribution
ladder and are the most easily replaced. More importantly, crack dealers
are not inherently more evil or morally reprehensible than powder cocaine
dealers. The crack dealer sells crack as opposed to powder because of
customer demand.

There is increasing evidence that the drug laws are selectively enforced. I
remember an African-American client of mine facing a 15- year sentence for
selling a little more than 5 grams of crack after a series of undercover
buys. He showed me a newspaper article about a white pilot who had imported
nearly 100 kilograms of powder in one trip. The pilot was going to be
sentenced to five years. I explained to my client that the pilot had struck
a deal to cooperate with the government. My client also wanted to
cooperate. However, the government was not interested in his small time
contacts. My client told me that even though this wasn't his first offense,
he had never seen 1 kilogram of cocaine, much less 100 kilograms. I told
him that's how the system works. Some system, huh?

Daryl Wilcox is an assistant federal public defender for the Southern
District of Florida.