Politics & Policy

BILL ADDRESSES DISPARITY IN COCAINE LAWS

What Triggers Mandatory Sentences Is Root of Debate

WASHINGTON -- In this city, sometimes only the unlikeliest politicians can
force action on an issue. In the latest instance of this "Nixon to China"
syndrome, a pair of tough-on-crime senators are addressing the disparate
sentences meted out for crack and powder-cocaine offenses.

Just as Congress recessed for the holidays, two conservative Republican
senators -- Alabama's Jeff Sessions and Orrin Hatch of Utah -- introduced a
bill to narrow the 100-to-1 ratio representing the amount of powder cocaine
and the small amount of its crack form that, respectively, mandate five
years of prison time for distributing the drug.

Critics long have seen the disparity as a racial issue, unfairly punishing
African-American communities, where crack is more prevalent, compared with
white suburbia, where powder cocaine is the preferred form of the drug. But
in a political climate that rewards those who are tough on crime,
politicians have been wary of taking action that might be viewed as
softening a drug law.

But "when it's two senior, white senators talking about racial disparity,"
that brings a different level of exposure to the issue, said Marc Mauer of
the Sentencing Project, a nonprofit group opposed to mandatory sentences.
"It's important recognition of the problem."

The Sessions-Hatch bill still would leave a disparity in how much of each
drug draws a five-year sentence, though it would narrow the ratio to
20-to-1. If a case is prosecuted at the federal level under the current
law, someone caught with five grams of crack gets a certain five-year
sentence, while someone would have to be in possession of 500 grams of
powdered cocaine to trigger the mandatory prison time. The two Republicans'
bill would raise the crack trigger amount to 20 grams, and lower the powder
amount to 400 grams.

Meanwhile, other signs point to a willingness to take on the long-simmering
question. Last year, some states, such as Louisiana, changed their own
versions of mandatory-sentence laws. President Bush, less than a week after
taking office last year, said it was time to examine the impact of the
lengthy sentences on nonviolent, first-time drug offenders.

Spokeswoman Claire Buchan says the administration is reviewing the
Sessions-Hatch bill.

Separately, the U.S. Sentencing Commission, which sets guidelines for
federal sentences, has begun reviewing those rules. Just days ago, the
commission decided to put a notice in the Federal Register this week,
seeking public comment about revisions, specifically on the crack-
vs.-powder cocaine disparity.

The commission had planned to take up the issue anyway. But in December,
Sen. Hatch, the lead Republican on the Senate Judiciary Committee, and
Committee Chairman Patrick Leahy, a Vermont Democrat, wrote Commission
Chairwoman Diana Murphy that it should do so. "Provide us some guidance,"
they wrote, "as we continue to evaluate the appropriateness of the penalty
differential between powder and crack cocaine."

For her part, Ms. Murphy, a federal appellate court judge, welcomes the
Sessions-Hatch bill that was filed eight days after she received that
letter. "We're very happy to have Congress moving into this area."

The crack-powder disparity has been a source of dispute for years. In 1986,
Congress imposed the harsh minimum sentences for crack crimes, as
legislators concluded that the substance was more dangerous than powder
cocaine. The Sentencing Commission proposed eliminating the disparity in
1995. But Republicans, who had just taken over Congress for the first time
in 40 years, promising a conservative "revolution," blocked the change. It
was the first time Congress had rejected a commission recommendation.
President Clinton tried but failed to lower the disparity to a 10-to-1 ratio.

During the past decade, medical studies have determined that there is
little physiological difference between crack and powder cocaine usage. As
a result, the arguments supporting a stiffer penalty for crack users have
lost some of their punch.

The Fraternal Order of Police, once opposed to change, is open to the
debate now. James Pasco, executive director of the 300,000-member group --
the largest law-enforcement labor organization in the country -- said,
"There's been too much demagoguery and not any civility in the debate on
powder versus crack. That's what's needed, a debate. Anytime you've got two
total disparate points of view, there's a compromise in the middle, and I'm
sure Sen. Sessions would seek that compromise."

Though his co-sponsor, Mr. Hatch, is the better known of the two
conservative senators, Mr. Sessions's lead role on the race-sensitive
matter is the most intriguing. As a tough Alabama prosecutor of drug
dealers, he caught the Reagan administration's attention and was tapped to
be a federal judge in 1986. But senators rejected his nomination after
civil-rights groups raised questions of racial intolerance.

The low-profile senator was at work on his bill months before Sept. 11, and
the attacks that day delayed both his introduction of the bill and his
marketing of it to other senators.

"Unfortunately, we have to put people in jail to preserve a safe society,"
he said. "But we don't need people in jail longer than necessary to
accomplish that goal." The bill doesn't "undermine the sentencing guideline
structure," he added, "but, in fact, strengthens it because it makes it
more rational and effective."

Some critics of the current law welcome the senators' initiative, but say
they would prefer that the bill simply raised the amount of crack needed to
trigger the prison sentence. "I'm not opposed to the idea that there might
be a difference between the two drugs, but I am against picking the numbers
out of the blue to get a ratio," said Julie Stewart, president of Families
Against Mandatory Minimums. "The ratio isn't the problem. It's the crack
penalties that are the problem."

Meantime, some Senate Democrat staffers are wary that Sens. Sessions and
Hatch have moved without waiting for some analysis under way at the
Sentencing Commission. "We were hoping to look at the whole thing before
deciding what legislative step to take," one staffer said. The Democrats
privately question whether the two Republican senators are trying to
undercut the commission's review of appropriate sentences, in effect, by
setting what appear to be limits on what Congress will agree to.

Proponents of change, such as Ms. Stewart's group, endorse other parts of
the bill as well, particularly those that pertain to the sentences meted
out to bit players, or unwitting ones, in the drug crimes. An important
provision could limit to as little as 10 years the jail time that minor
players, who benefited little from a drug operation, can receive. It also
would allow for reducing that sentence at least 20% more if the defendant
"had a minimum knowledge of the illegal enterprise, was to receive little
or no compensation ... and acted on impulse, fear, friendship or
affection." Currently, federal sentences are based heavily on the quantity
of a drug linked to a suspect, rather than other factors such as a
suspect's knowledge of the drug operation itself.

Sen. Sessions said hundreds, if not thousands, of offenders who were
couriers -- known as mules -- or otherwise bit players have ended up
serving lengthy sentences because of the size of the operations. "A
girlfriend or a young person may be asked to transport some drugs and they
just do it. And whether it is two pounds of cocaine or 30 pounds of cocaine
wouldn't make much difference to them, but it has a huge impact on
sentencing," he said.

"The goal of a good sentencing system would focus on the person with what I
call the highest degree of criminality," Mr. Sessions added. "We have
provided tougher sentences for the organizers who use violence and easier
sentences for those who were small role players."

Write to Gary Fields at gary.fields@wsj.com