A Crack in the System

For the fourth time in 20 years, the U.S. Sentencing Commission has asked lawmakers to reform mandatory cocaine sentencing policy. Might this be the year Congress listens?

A flurry of recent legislative activity may finally signal an end to what critics call a blatantly racist federal sentencing policy. Now over 20 years old, the sentencing guidelines set forth in the Anti-Drug Abuse Act of 1986 mandate a minimum incarceration of five years for possession of five grams of crack cocaine -- the same penalty that is triggered for the sale of 500 grams of powder cocaine, or 100-times the minimum quantity for crack. Opposition to the so-called "crack disparity" has grown steadily through the years and today spans the political spectrum from the conservative Rand Corporation to the American Civil Liberties Union. The guidelines have also drawn the ire of more than a few federal judges, some of whom have begun testing the boundaries of the law by refusing to instate the mandatory crack minimum. The seven-member U.S. Sentencing Commission, which serves under presidential appointment, has repeatedly asked Congress to reform the law. In 1995, the Commission attempted to overturn the crack disparity on its own by attaching an amendment to its recommendation, but that effort was defeated by a strong bipartisan backlash. Since then, the Commission has seen fit to leave it up to Congress to reform the guidelines, and has made it a point to say so every five years. That the law has yet to be repealed is a testament to the persistence of age-old fallacies regarding race and class. While drug use rates are similar among all racial groups, African American drug offenders have a 20 percent greater chance of being sentenced to prison than white offenders, according to Commission statistics. In 2005, more than 80 percent of crack cocaine defendants were black. Meanwhile, President Bush's recent commutation of Lewis 'Scooter' Libby's "excessive" 30-month prison sentence for outing a CIA agent has only added insult to injury. "If President Bush truly believes that the power of commutation is necessary to correct injustice, there is no shortage of cases of people languishing in federal prisons for unconscionably lengthy sentences who are deserving of such attention," says Marc Mauer, executive director of The Sentencing Project, a Washington-based advocacy group. Mauer's group -- along with others such as Families Against Mandatory Minimums (FAMM) and the Drug Policy Alliance (DPA) -is part of a vocal coalition aimed at pressuring lawmakers to take action to reform the law. Mauer recently testified before a House subcommittee hearing on mandatory minimums, telling Congress that mandatory penalties for crack cocaine "inevitably result in disproportionate prosecutions of low-level offenders, precisely the opposite of what federal policy should encourage." At its core, the crack law is a glaring example of the bad policy decisions that often follow a national tragedy -- in this case the overdose death of University of Maryland basketball star Len Bias. Within months of Bias' death in June 1986, Congress pushed through the law with overwhelming support from both parties, and in 1988 extended the mandatory penalty to include simple possession of crack. "Congress was responding to a media and political frenzy and passed the law in record time, really, without any input from experts or drug abuse specialists to determine what the appropriate response might be," explains Mauer. "It was a very narrow approach that failed to take into account the broad subject of substance abuse."
"The effect has been significant," says Mauer. "The Sentencing Commission has laid out in clear terms that this policy was a failure; that it isn't an effective way of addressing the problem of drug addiction -- that is, it just isn't working -- and because of the obvious racial disparity that was built into it." The racial component of the law is especially troubling. The Bureau of Justice Statistics found that between 1994 and 2003, the average time African American drug offenders served in prison increased by 77 percent, compared to an increase of 28 percent for white drug offenders. As a result, African Americans now serve, on average, virtually as much time in jail for drug offenses as whites do for violent crimes. "The policy of the federal government is having a devastating effect on our communities and that these laws continue to be maintained show, at the very least, a callous disregard for our people and our communities," said Hilary Shelton, director of the NAACP's Washington Bureau, testifying before the Sentencing Commission in November. "It is this disregard for the fate of our people and our community that continues to erode our confidence in our nation's criminal justice system." This year, as it has four times in the past two decades, the Commission recommended that lawmakers repeal the crack sentencing mandate. In a 202-page report released on May 15, the Commission maintained its consistently held position that the 100-to-1 drug quantity ratio significantly undermines the various congressional objectives set forth in the Sentencing Reform Act and urged Congress to take legislative action to reform the system. Some lawmakers appear to have finally taken that message to heart. "I think increasingly there's been a bipartisan movement for some kind of reform," says Mauer. "Back in 2002, Senators Jeff Sessions and Orrin Hatch introduced a sort of compromise proposal that would have raised the threshold for crack while lowering the threshold for powder. That was significant because it was coming from two leading conservatives. That was a turning point of sorts; I think since then both in the House and Senate there's been more support for change." Currently there are six bills making their way through Congress aimed at addressing the disparity; but not all legislation is created equal. In June, senators Hatch (R-Utah) and Joseph Biden (D-DE) each introduced legislation aimed at reforming the law, and a similar bill introduced in January by Sessions (R-AL) is currently on the docket of the Senate Judiciary Committee. In the House, Representative Roscoe Bartlett (R-MD) and Charles Rangel (D-NY) each have bills pending. But the bills vary greatly in their approach, ranging from Bartlett's Machiavellian H.R. 79 -- which wouldn't reduce the mandatory minimum for crack cocaine at all, but rather would apply the same five-year minimum to powder cocaine -- to Biden's Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007, which would repeal the mandatory minimum for simple possession of crack and focus federal attention away from street-level dealers and onto so-called "cocaine kingpins." In a floor statement introducing the bill, Biden railed against the crack law's misguided rationale. "This is a terrible flaw in the criminal justice system, based on the bogus notions that the crack form of cocaine is inherently more addictive than the powder form and crack users are more violent than powder users," Biden said. "That logic just hasn't played out." A similar bill, the bipartisan Fairness in Drug Sentencing Act of 2007, was introduced by Hatch, along with senators Edward Kennedy (D-MA), Dianne Feinstein (D-CA), and Arlen Specter (R-PA). But like the earlier Sessions bill, it would only reduce the crack/powder disparity to a ratio of 20-to-1, not eliminate it altogether.

For his part, Mauer says it's encouraging that legislators are finally addressing what he calls the "unconscionable racial disparities" inherent in the federal crack sentencing guidelines; but he insists it's only a first step. "This is by far the most significant pace of reform we've seen in some time," says Mauer of the legislation currently in process. "Under the circumstances, I think equalization is the only defensible alternative, but even then they impose a mandatory sentence, which we think is fundamentally flawed. Crack is just part of the broader issue of mandatory minimums, and it's typical of what's wrong with this system."

Christopher Moraff is a Philadelphia-based writer and reporter and a frequent contributor to The American Prospect Online. He is senior editor of the monthly online magazine Common Sense.