More equity in cocaine sentencing

Revised guidelines lessen disparity in prison terms for crack versus powder.

A change in federal sentencing guidelines has quietly narrowed the huge discrepancy in prison time for convictions involving powder versus crack cocaine, after a 20-year battle over the issue.

Since 1988, possession of five grams of crack cocaine – an amount equal to five packets of sugar substitute – landed a person in jail for five years. But people caught with cocaine powder would have to possess 100 times that amount, or 500 grams, to get the same five-year stint behind bars.

It's known as the 100-to-1 ratio. And because most people convicted of crack offenses are black and most convicted of powder cocaine offenses are white, critics have long argued that the disparity represents an egregious racial inequity in America's criminal-justice system.

This week the US Sentencing Commission, with little fanfare, officially reduced its recommended sentences for crack-related offenses. The commission announced last spring that it intended to make the change, and Congress had until Nov. 1 to stop the move. It didn't, and the revised guidelines became effective Thursday.

As a result, up to 4 in 5 people found guilty of crack-cocaine offenses will get sentences that are, on average, 16 months shorter than they would have been under the former guidelines. Opponents of the 100-to-1 ratio applaud the commission's move, but they say it's just a first step because the so-called mandatory minimum sentences set by Congress remain on the books.

"We really commend the commission for taking this modest but important step," says Mary Price, general counsel and vice president of Families Against Mandatory Minimums, a Washington-based advocacy group. "The commission has told Congress for years that the crack-cocaine penalties are unduly and unnecessarily severe."

In a May report to Congress, the US Sentencing Commission said the disparity between crack and powder cocaine sentencing guidelines "continues to come under almost universal criticism from representatives of the Judiciary, criminal justice practitioners, academics, and community interest groups, and inaction in this area is of increasing concern to many, including the Commission."

That was the fourth time the commission had recommended that Congress change the law, but it never has. So the commission on its own reduced its recommended sentences. That gives judges more discretion, but the "mandatory minimum" law that requires five years for possession of five grams of crack still stands.

"The commission emphasized and expressed its strong view that the amendment is only a partial solution to some of the problems associated with the 100-to-1 drug quantity ratio," it said in a statement in April. "Any comprehensive solution to the 100-to-1 drug quantity ratio would require ... legislative action by Congress." It also urged Congress to act swiftly.

To make sense of that, one needs to understand the difference between federal sentencing guidelines and the congressionally imposed mandatory minimum sentences. In the 1980s, Congress created the US Sentencing Commission to guard against "unwarranted sentence disparities among defendants with similar criminal records who have been found guilty of similar criminal conduct," according to the commission.

While the commission was developing its guidelines, Congress in 1986 approved a law establishing "mandatory minimum" penalties for many drug offenses. At the time, the crack epidemic was ravaging inner-city neighborhoods, mostly, and the related violence helped provoke a "get tough on crime" backlash. Many lawmakers expected that long, mandatory sentences for possessing or selling crack would discourage drug use. And because many perceived crack to be much more destructive than powder cocaine, Congress established the 100-to-1 ratio. In 1988, it passed another law that established a mandatory minimum penalty for simple possession of crack cocaine.

"This wasn't a racially motivated thing," says Todd Gaziano of the Heritage Foundation in Washington, a conservative think tank. "Crack was destroying the inner cities; even the Congressional Black Caucus supported it."

Since then, studies have shown that the crack-versus-powder sentencing disparity disproportionately affects minorities. Last year, 82 percent of crack defendants were black, according to the sentencing commission, compared with 9 percent who were white. For powder cocaine, it was almost the opposite: About 80 percent of powder-cocaine defendants were white and less than 14 percent were black.

Such statistics have led many conservatives to agree that the sentencing disparity is too harsh.

Several bipartisan bills pending in Congress would whittle the disparity by increasing the penalties related to powder cocaine while reducing the mandatory minimum related to crack. One Republican-sponsored bill would simply increase the powder-cocaine penalty to the penalty level for crack.

Critics of the 100-to-1 ratio, meanwhile, are urging the commission to make its change retroactive. Commissioners plan a Nov. 13 hearing to determine if that's feasible. If the change were retroactive, more than 19,500 people now serving time for crack offenses could see their sentences reduced by an average of 27 months.

"We believe it would be cruelly ironic to recognize and correct the injustice of the guideline that has lengthened thousands of sentences, and then deny the benefit to the very prisoners whose unjust sentences they identified and relied on for evidence of its flawed operation and injustice," says Ms. Price of FAMM.

Previously, when the commission lessened sentencing guidelines for LSD and possession of marijuana plants, the changes were retroactive. But that is unusual. Of 696 amendments made to guidelines since their inception, only 25 were applied retroactively, says a commission spokesman.