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A Crack Opens in Drug Law Sentencing

Ann M. Schneider Jan 24, 2008

Twenty-three years after this country began its disastrous experiment with mandatory federal guidelines for sentencing, what has been obvious for those on the receiving end has finally trickled up to the highest policy-making bodies of our government. On Dec. 10, the Supreme Court gave federal judges the freedom to depart from federal sentencing guidelines, implicitly recognizing that the 100 to 1 disparity in sentencing between crack cocaine and powder cocaine is a manifestation of racism. The penalty for possession or distribution of 500 grams of powder cocaine is five years in prison, but one need only have five grams of crack to be sentenced to a minimum of five years.

The Supremes gave a break to Derrick Kimbrough, a Marine veteran of the Persian Gulf War who was charged with using a gun in conjunction with distributing crack. The Kimbrough case expanded on a 2005 Supreme Court ruling that gave a glimmer of hope to federal judges who were disgusted by having to impose severe jail time on the young, immigrant women who were most likely to be drug mules, while prosecutors dithered about drug kingpins. The eminent Judge Jack Weinstein resigned from the bench in 1993 in order to avoid having to impose such sentences.

In 2006, more than 80 percent of the defendants sentenced for crack offenses were African American, despite the fact that only 24 percent of crack users were African American. Seventy-two percent of admitted crack users were white or Hispanic, according to the National Survey on Drug Use. Strikingly, in 1986, before the enactment of mandatory minimums, the average federal drug sentence for Blacks was 11 percent higher than for whites. Four years later, the average federal drug sentence for Blacks was 49 percent higher.

Coincidence?

The 100 to 1 disparity has been in place since 1988 when Congress vastly increased the penalties in order to curb “crack-fueled violence.” But as a Chicago Narcotics Officer stated in 1990, “There is as much coke in the stock exchange as there is in the Black community. But those guys are harder to catch. Those deals are done in office buildings, or in somebody’s home. But the guy standing on the corner, he’s almost got a sign on his back. These guys are just arrestable.”

Meanwhile, the U.S. Sentencing Commission also addressed the crack-coke disparity issue on Dec. 11, by giving 19,500 prisoners the right to apply for retroactive sentence reductions. The Sentencing Commission had recommended doing away with the disparity before. But Congress (who created the body in 1984) refused to listen to their own experts. In an amazing display of political consciousness, inmates in five federal prisons rioted in October 1995, the day after the House voted against sentencing reform. Five days earlier, Minister Louis Farrakhan’s demanded such a change at the Million Man March in Washington, D.C. The militancy of the prisoners was especially impressive, since the measure then pending in Congress wouldn’t have applied to them. It would only help future offenders.

Mandatory minimums are still a problem. The Sentencing Commission only adjusted mid-level sentences, saying it lacks power to change the federal statutory minimum for drug offenses. So further action is needed by Congress to truly eliminate this racial disparity. In New York State, Drop the Rock coalition has achieved a measure of victory with a law that permits some retroactive modification of the notorious Rockefeller drug laws. But the measure that was passed in Albany allows prosecutors to determine what the charges will be, placing all discretion in the hands of the district attorney. New York Assemblyman Jeffrion Aubry’s bill, still pending, would repeal the mandatory minimums, thereby restoring full discretion to the trial judge; and increase funding for drug treatment.

While much reform is still needed, these decisions represent a sea change in public and political attitude toward mandatory minimums that is probably unstoppable, like the march toward the elimination of the death penalty.