ONE DRUG, TWO SENTENCES

By Jill Smolowe

First, a science primer for those of you not up to speed on your pharmaceuticals. Cocaine and crack are two forms of the same drug. Crack is simply powder cocaine mixed with baking soda and water and heated. Therefore, anyone who possesses cocaine has the capability to turn it into crack. Next, the economics. Powder cocaine is usually sold in gram packages for between $65 and $100. Rocks of crack come in smaller, more affordable packages that cost $5 to $20. Crack is predominantly a drug of the inner city; cocaine is more prevalent among the middle and upper classes.

Now, the criminal consequences. Under federal law, if you are caught with 5 grams of crack, you will, at minimum, be slapped with a five-year penalty. You must be caught with at least 500 grams of powder cocaine to earn a comparable sentence. Whether intended or not, the effect of this 100-to-1 ratio is that "it punishes poor people and people of color more heavily,'' says Nkechi Taifa of the American Civil Liberties Union.

In a 242-page report released in February, the U.S. Sentencing Commission deplored this disparity, noting that blacks account for 88.3% of all federal crack distribution convictions, but just 27.4% of cocaine trafficking convictions. On average, crack defendants receive prison sentences three to eight times as long as their cocaine counterparts for comparable amounts. Willie Aikens, a former first baseman for the Kansas City Royals, is a case in point. Convicted last year of selling 50 grams of crack, he is now doing 15 years in the federal prison at Leavenworth; had he sold cocaine instead, his sentence would be closer to two years. The commission's bottom line: "Issues of 'fairness' or 'just punishment' result when relatively low-level crack retailers receive higher sentences than the wholesale-level cocaine dealer from whom the crack seller originally purchased the powder to make the crack."

The disparate sentences were Congress's hasty answer to the drug panic that swept America in 1986, following the rapid spread of crack sales through major urban areas. Ironically, it was the cocaine death that summer of Len Bias, a promising basketball player who had recently been drafted by the Boston Celtics, that propelled Congress to act. Then Speaker Tip O'Neill, his ears ringing from the outcry of his Cambridge constituents, pressed House committees for swift antidrug legislation. "We didn't have hearings on this, which is really extraordinary," says Eric Sterling, then counsel to the House Judiciary Committee. The bill was passed without careful consideration of the issues involved.

In April the Sentencing Commission, by a 4 to 3 vote, recommended that base sentences for crack and cocaine be equalized. Even so, the playing field would not be entirely leveled. Under the proposed guidelines, drug sales involving weapons, violence or perpetrators who have significant criminal records would receive stiffer sentences. Thus, the Commission notes, "crack offenders will receive sentences generally at least twice as long as those for powder cocaine offenders involved with the same amount of drugs."

The commission's recommendations become law automatically on Nov. 1 unless Congress acts to reject them. That may happen. Attorney General Janet Reno, for one, has come out against the new guidelines: "I strongly oppose measures that fail to reflect the harsh and terrible impact of crack on communities across America." But the sentencing rules have a harsh and terrible impact of their own.

-Reported by Adam Cohen/New York

With reporting by Adam Cohen/New York