Being Fair to Crack Dealers

By Julie Rawe

Drug dealers are bad guys, but even they should be treated fairly. That's why advocates of sentencing reform are cheering a recent federal move to narrow the jaw-dropping disparity in sentences for trafficking in two versions of the same drug, cocaine. But it's way too early for them to be declaring victory.

The U.S. Sentencing Commission, which was created in 1984 to help ensure that people convicted of similar crimes end up with similar prison terms, has finally shortened its recommended penalties for crack cocaine. Crack offenders have traditionally been treated more severely than those caught with powdered cocaine, a disparity that has weighed heavily on the minority community: last year 82% of crack offenders were black, while 72% of powder-cocaine offenders were white or Hispanic. The new federal sentencing guidelines, which took effect Nov. 1, are expected to drop the average prison term for crack offenders from a little over 10 years to less than nine.

Yet these changes in no way affect the mandatory minimum sentences Congress set in the '80s for drug trafficking. Back then, crack cocaine was associated with inner-city violence and drug-addicted babies, while the powdered version of the drug was considered yuppie nose candy. Congress cracked down so hard on crack that users who get caught with five grams of the stuff -- about five Sweet'N Low packets' worth -- get a minimum of five years in prison, which is more than the statutory maximum for simple possession of any quantity of powder cocaine, heroin or any other controlled substance. If that sounds draconian, the disparity in the penalties for trafficking is even greater. If dealers get nailed with 500 grams of powder cocaine, they automatically get five years in prison. But if they get caught with five grams of crack, they get the same penalty. Likewise, a mandatory 10-year sentence kicks in for offenders with 5,000 grams of coke (enough to fill a briefcase), but just 50 grams of crack (enough to fill a candy-bar wrapper).

Two decades ago, this 100:1 drug-quantity ratio appealed to legislators who believed crack was instantly addictive and caused violent behavior. And the sentencing commission worked these dramatically different drug thresholds into its otherwise nuanced sentencing guidelines, which add jail time for aggravating factors like the presence of a firearm and reduce it for such things as acceptance of guilt.

Since then, science has shown there is little difference between the two cocaine variants, but that didn't change the way the law treated them. Congress blocked the Commission's first attempt, in 1995, to reduce the sentencing disparity and so far has refused to change the laws that disproportionately affect low-level crack offenders. So while the new guidelines have reduced the penalties above the mandatory minimums, those minimums are still firmly in place.

In revising its guidelines, the federal commission in some ways is simply catching up with the states. Amid almost universal criticism of the federal government's 100:1 ratio, only 13 states still make a legal distinction between crack and powder cocaine, and none of these states applies as harsh a ratio as 100:1. But according to Douglas Berman, a professor and sentencing expert at Ohio State University's Moritz College of Law, prosecutors have an extraordinary amount of discretion in deciding whether a case gets tried in state or federal court. "Ironically," he says, "the more lenient a state is on these issues, the more likely the local federal prosecutor will say, 'Well, I have to take these cases to really bring the hammer down.'"

And that's not likely to change soon. While the new guidelines may inspire Congress to reexamine the federal mandatory-minimum laws, no one wants to be perceived as soft on crack dealers. Thus most of the proposed legislation to equalize cocaine sentences ratchets up the penalties for the powdered version, rather than reducing them for crack.

What's more, even the changes in the guidelines will have only a limited effect unless the sentencing commission makes them retroactive -- an issue it is expected to discuss at a Nov. 13 meeting. As of now, the new guidelines will affect only new offenders. If the commission decides to go retro, the move could shorten the prison terms for some 19,500 inmates by an average of 27 months.