Crack/Powder Cocaine Disparity

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Feature: Winds of Change Are Blowing in Washington -- Drug Reforms Finally Move in Congress

Update:Needle exchange legislation was passed by the full House of Representatives on Friday afternoon.

What a difference a change of administration makes. After eight years of almost no progress during the Bush administration, drug reform is on the agenda at the Capitol, and various reform bills are moving forward. With Democrats firmly in control of both the Senate and the House, as well as the White House, 2009 could be the year the federal drug policy logjam begins to break apart.

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US Capitol, Senate side
While most of the country's and the Congress's attention is focused on health care reform and the economic crisis, congressional committees are slowly working their way through a number of drug reform issues. Here's some of what's going on:

  • A bill that would eliminate the notorious sentencing disparity between crack and powder cocaine by removing all references to crack from the federal law and sentencing all offenders under the current powder cocaine sentencing scheme passed its first subcommittee test on Wednesday. This one was bipartisan -- the vote was unanimous. (See related story here)
  • The ban on federal funding for needle exchanges has been repealed by the House Appropriations Committee, although current legislation includes language barring exchanges within 1,000 feet of schools. Advocates hope that will be removed in conference committee. (Update:Needle exchange legislation was passed by the full House of Representatives on Friday afternoon.)
  • The Barr amendment, which blocked the District of Columbia from implementing a voter-approved medical marijuana law, has been repealed by the House.
  • Massachusetts Rep. Barney Frank's marijuana decriminalization bill has already picked up more cosponsors in a few weeks this year than it did in all of last year.
  • Virginia Sen. Jim Webb's bill to create a national commission on criminal justice policy is winning broad support.
  • The Higher Education Act (HEA) drug provision (more recently known as the "Aid Elimination Penalty"), which creates obstacles in obtaining student loans for students with drug convictions, is being watered down. The House Education and Labor Committee Wednesday approved legislation that would limit the provision to students convicted of drug sales and eliminate it for students whose only offense was drug possession. (See related story here.)
  • The "Safe and Drug Free Schools Act" funding has been dramatically slashed in the Obama administration 2010 budget.
  • Funding for the Office of National Drug Control Policy's youth media anti-drug campaign has been dramatically slashed by the House, which also instructed ONDCP to use the remaining funds only for ads aimed at getting parents to talk to kids.

"All the stars are now aligned on all these issues," said Bill Piper, national affairs director for the Drug Policy Alliance. "I've never felt so optimistic about drug policy reform in DC."

Looking into his crystal ball, Piper is making predictions of significant progress this year. "I have a strong sense that the Barr amendment and the syringe funding ban will be eliminated this year. The Webb bill will probably be law by December. There's a good chance that HEA reform and the crack sentencing reform will be, too. If not, we'll get them done next year," he said.

"Things are heating up like I've never seen before," Piper exclaimed. "It's like a snowball rolling downhill. The more reforms get enacted, the more comfortable lawmakers will be about even more. Cumulatively, these bills represent a significant rollback in the drug war as we know it."

Former House Judiciary committee counsel Eric Sterling, now head of the Criminal Justice Policy Foundation, was a bit more restrained. Congress is just beginning to come around, and there are dangers ahead, he said.

"We're seeing windows being opened where we can feel the first breezes of spring, but it's not summer yet," Sterling said. "There are people asking questions about drug policy more broadly, there is more openness on Capitol Hill to thinking differently. Liberals are not as afraid they will be attacked by the administration. The climate is changing, but my sense is we're still at the stage where members of Congress are only beginning to take their shoes off to put their toes in the water."

What progress is being made could be derailed by declining popularity of Democrats, the drug reform movement's failure to create sufficient cultural change and a stronger social base to support political change, and the return of old-style "tough on drugs" politics, Sterling warned.

"People need to be aware that as unemployment continues to rise, Democrats will be feeling afraid of repercussions at the polls," he said. "If the economic stimulus does not seem to be generating jobs, if there is a widespread sense of trouble in the country, the drug issue can easily be recast as a bogeyman to distract people. Members of Congress could start talking again about 'fighting to help protect your families.' Those old ways of thinking and talking about these issues are by no means gone," Sterling argued.

That is why he is concerned about building a social base to support and maintain drug reform. "The drug reform movement needs to create cultural change to support political change, and I fear we haven't done enough of that," he worried.

Sterling also warned of a possible reprise of the late 1970s and early 1980s, when the emergence of a parents' anti-drug movement helped knock drug reform off the agenda for nearly a quarter-century. The administration's effort to defund the Safe and Drug Free Schools Act in particular could spark renewed concern and even a reinvigorated anti-drug mobilization, he said.

"The administration says the Safe and Drug Free Schools program hasn't demonstrated its effectiveness and grant funds are spread too thin to support quality interventions, which may well be true," he said. "But little dribs and drabs of that get spread around the states, and that means a lot of people could be mobilized to fight back. The parents' community and prevention professionals will mobilize around these issues with renewed vigor," he predicted.

The Wild West show that is California's marijuana reality could also energize the anti-reform faction, Sterling said. "For those of us outside California, it's hard to fathom what's going on there. I don't think anyone back East can imagine a dispensary operating every quarter-mile along Connecticut Avenue," he explained. "I ask myself if this is growing in a way that could create a potential powerful reaction like we saw in the 1970s. There has already been a smattering of stories about marijuana use in school by patients. Will there be exposés next fall about medical marijuana getting into the schools, kids getting stoned? People in the movement have to be aware that very real and powerful emotions can be unleashed by these changes," he warned.

Still, "momentum is on our side," Piper said. "Webb's bill has bipartisan support, the sentencing stuff is taking off in a bipartisan way, and the crack bill has the support of the president, the vice-president, the Justice Department, and some important Senate Republicans. That's probably the steepest hill to climb, but I think we're going to do it."

These are all domestic drug policy issues, but drug policy affects foreign policy as well, and there, too, there has been some significant change -- as well as significant continuity in prohibitionist policies. And that situation is exposing some significant contradictions. Here, it is the Obama administration taking the lead, not Congress. The Obama administration has rejected crop eradication as a failure in Afghanistan, yet remains wedded to it in Colombia, and it has embraced the Bush administration's anti-drug Plan Merida assistance package to Mexico.

"The really exciting thing is Afghanistan and special envoy Richard Holbrooke's ending of eradication there," said Sanho Tree, drug policy analyst for the Institute for Policy Studies. "That's huge, and it has repercussions for the Western Hemisphere as well. The US can't have two completely divergent policies on source country eradication. On Latin America, I suspect there is a power struggle going on between the drug warriors and the Holbrooke faction. We need a Holbrooke for Latin America," he said.

The media spotlight on Mexico's plague of prohibition-related violence may be playing a role, too, said Sterling. "The mayhem in Mexico certainly created a lot of thinking about how to do things differently earlier this year," he noted. "The media climate has changed, and perhaps that's more important at this stage than the climate inside the Beltway."

But the Mexico issue could cut against reform, too, he suggested. "Where is all that marijuana in California coming from?" he asked. "If someone can make the case that Mexican drug cartels are supplying the medical marijuana market there, that could get very ugly."

As the August recess draws nigh, no piece of drug reform legislation has made it to the president's desk. But this year, for the first time in a long time, it looks like some may. There are potential minefields ahead, and it's too early to declare victory just yet. But keep that champagne nicely chilled; we may be popping some corks before the year is over.

Press Release: Congress and Obama Administration Embrace Major Drug Policy Reform

FOR IMMEDIATE RELEASE: July 22, 2009 CONTACT: Bill Piper at 202-669-6430 or Tony Newman at 646-335-5384 Congress and Obama Administration Embrace Major Drug Policy Reform Crack/Powder Disparity, Syringe Exchange Funding, Medical Marijuana, HEA Reform All Advancing Decades of Harsh and Ineffective Federal Laws Likely to be Dismantled this Year At least four of the worst excesses of the federal war on drugs appear likely to be rolled back this year – the crack/powder cocaine sentencing disparity, the federal ban on the funding of syringe exchange programs, the all-out federal war on medical marijuana, and the HEA AID Elimination Penalty. All four reforms are advancing quickly in Congress. “Policymakers from the President of the United States on down are calling for a paradigm shift so drug use is treated as a health issue instead of a criminal justice issue” said Bill Piper, director of national affairs for the Drug Policy Alliance. “Eliminating the crack/powder cocaine sentencing disparity, repealing the ban on federal funding for syringe exchange programs to reduce HIV/AIDS, allowing the District of Columbia to move forward with medical marijuana, and reforming the HEA Aid Elimination Penalty are all examples of pairing action with rhetoric.” The House Crime Subcommittee is expected to pass legislation today eliminating the crack/powder cocaine sentencing disparity that punishes crack cocaine offenses one hundred times more severely than powder cocaine offenses. Both President Obama and Vice-President Biden have spoken in support of eliminating the disparity. In numerous statements this year, Justice Department officials have called on Congress to eliminate the disparity this year. Last week, the U.S. House Appropriations Committee repealed the 20-year ban prohibiting states from spending their share of HIV/AIDS prevention money on syringe exchanges program to reduce the spread of HIV/AIDS, hepatitis C, and other blood-borne diseases. The full U.S. House takes up the underlying bill later this week. The ban is responsible for the deaths of tens of thousands of Americans. If the ban is not repealed, as many as 300,000 Americans could contract HIV/AIDS or hepatitis C over the next decade. President Obama called for elimination of the ban on the campaign trail. In legislation last week, the U.S. House repealed a provision of federal law that overturned a medical marijuana law approved by Washington, DC voters, setting the stage for the nation’s capital to make marijuana available to cancer, AIDS, and other patients, possibly as soon as next year. Earlier this year Attorney General Eric Holder declared that the Justice Department would no longer arrest medical marijuana patients, caregivers and providers, even if they violated federal law, as long as they were following the laws of their states. 13 states have legalized marijuana for medical use, but the Bush Administration raided medical marijuana dispensaries and made numerous arrests and prosecutions. In a vote yesterday, the House Education and Labor Committee reformed the HEA AID Elimination Penalty that denies loans and other financial assistance to students convicted of drug law offenses, including simple marijuana possession. Since 1998, more than 180,000 students have lost aid and many, no doubt, have been forced to drop out of college. Although the Obama Administration has not stated where it stands on the underlying law, it has said it wants to remove a question from financial aid applications that ask students if they have ever been convicted of a drug crime. In other drug policy news, Rep. Barney Frank (D-Mass.), chairman of the House Financial Services Committee, and Rep. Ron Paul (R- Texas) have introduced bi-partisan legislation to decriminalize possession of marijuana for personal use. Sen. Jim Webb, D-VA, President Reagan’s Secretary of the Navy, has introduced bipartisan legislation to create a national commission to study the U.S. criminal justice system and make recommendations on how to reduce the number of Americans behind bars, with a particular emphasis on reforming drug laws. Almost a third of U.S. Senators are cosponsors of the bipartisan bill and it is expected to pass the Senate sometime this year. “The ice is starting to crack,” said Bill Piper, director of national affairs for the Drug Policy Alliance. “The decades of harsh and ineffective laws that have led to overstuffed prisons and a growing HIV epidemic are starting to be challenged and hopefully soon dismantled.” ###

Breaking: House Subcommittee Votes to Reduce Crack Cocaine Penalties to Powder Cocaine Level

Rep. Bobby Scott (D-VA), H.R. 3245
lead sponsor and long-time champion
for criminal justice reformThe House Judiciary Subcommittee on Crime, Terrorism and Homeland Security this afternoon unanimously approved H.R. 3245, the "Fairness in Cocaine Sentencing Act of 2009." According to Families Against Mandatory Minimums:
The bill would remove references to "cocaine base" from the US Code, effectively treating all cocaine, including crack, the same for sentencing purposes. Original cosponsors of the bill include all Democratic members of the subcommittee and the sponsors of all other Democratic bills that address the cocaine sentencing disparity.
Click here for the full press release. Exciting times -- as I noted a few minutes ago when writing about another good vote that took place in Congress yesterday, eliminating the loss of financial aid penalty that exists for students convicted of drug possession. That one was part of a larger, high-priority bill that that committee is now sending to the full House of Representatives. Whether this standalone bill, coming out of a subcommittee, will get to that level is less certain. However, the chairman of the Judiciary Committee, John Conyers (D-MI), is an ardent supporter, and the bill passed the subcommittee unanimously, meaning the Republicans on the subcommittee must have voted for it too. (The roll call isn't online yet.) So it is very encouraging nonetheless.
Location: 
Washington, DC
United States

Sentencing: Attorney General Calls for Elimination of Crack-Powder Cocaine Disparity

US Attorney General Eric Holder said Wednesday that the gap in sentences for crack and powder cocaine offenses must go. Holder's remarks came as he addressed a legal discussion sponsored by the Congressional Black Caucus.

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Eric Holder
Under federal sentencing laws in place since the mid-1980s, five grams of crack cocaine earns a five-year mandatory minimum sentence, but it takes 500 grams of powder cocaine to earn the same sentence. This 100-to-1 disparity has hit black defendants the hardest. According to US government figures, 82% of federal crack offenders are black and only 9% white.

Pressure has been building for the past decade to reform those laws and reduce or eliminate that disparity. The notion has broad support even in Congress, but faces a perilous path among competing bills and competing notions about how the disparity should be addressed -- eliminate it completely, lower the ratio, or even increase powder penalties -- and how broadly the entire federal sentencing structure needs to be reformed.

Holder made it clear where the administration stands. "One thing is very clear: We must review our federal cocaine sentencing policy. This administration firmly believes that the disparity in crack and powdered cocaine sentences is unwarranted," Holder said. "It must be eliminated."

That's a stark contrast with the Bush administration, which fought hard to maintain the current cocaine sentencing structure despite opposition from the US Sentencing Commission, drug and criminal justice system reform advocates, an increasing number of prosecutors and judges, and an increasing number of legislators.

Video: Crack Sentencing Reform Petition Delivered to Congress -- Former Prisoners, Family Members and Advocates Speak Out

Last month the "Crack the Disparity" Coalition delivered petitions signed by tens of thousands of people, calling for an end to the draconian US crack sentencing laws, to the offices of Rep. John Conyers (D-MI) and Pat Leahy (D-VT), respective chairs of the House and Senate Judiciary Committees. This short video on ColorOfChange.org shows one of the deliveries, and features comments from Karen Garrison, whose two sons were unjustly caught up in these laws; and from Nkechi Taifa, who heads up justice reform efforts at the Open Society Policy Center. The ColorOfChange.org page devoted to this petition also features audio from the press conference, including former Major League baseball star Willie Mays Aikens, who served 14 years in federal prison after an untreated cocaine addiction drew him into the federal system with crack charges.

Rethinking Federal Sentencing Policy

Congressional Black Caucus Justice and Civil Rights Taskforce and Charles Hamilton Houston Institute for Race & Justice at Harvard Law School presents Rethinking Federal Sentencing Policy: 25th Anniversary of the Sentencing Reform Act. For more information, contact: Bernard Moore, PhD, Senior Policy Fellow, Office of Congressman Danny K. Davis at 202-360-7551 or Bernard.moore@mail.house.gov. Schedule: Welcome and Opening remarks by Rep. Danny Davis (5 minutes) Rep. Charles Rangel (5 minutes) Welcome and Introduction of A.G. by CBC Justice & Civil Rights Task Force, Rep. John Conyers (5-10 minutes) Remarks by Eric Holder, Attorney General (15 minutes), U.S. Department of Justice Introduction of Justice O’Connor by Sen. Patrick Leahy, Charles Hamilton Houston, Institute for Race & Justice (5 minutes) Remarks by Hon. Sandra Day O’Connor (15 minutes), Supreme Court of the United States Mandatory Minimums Panel One: Rep Maxine Waters (CA) History of Mandatory Minimums Hon. Terry Hatter, Judge, U.S. District Court for the Central District of California Hon. J. Spencer Letts, Senior Judge, U.S. District Court for the Central District of California Eric Sterling, President, Criminal Justice Policy Foundation Charles E. Black, formerly Incarcerated Panel Two: Rep. Bobby Scott (VA) the need for repeal and how to repeal, including legislative update Hon. Ann Williams, Circuit Judge, U.S. Court of Appeals, 7th Circuit A.J. Kramer, Federal Defender, Federal Public Defender of the District of Columbia Julie Stewart, President, Families Against Mandatory Minimums Disparity between Crack and Powder Cocaine Panel Three: Rep. Sheila Jackson-Lee (TX) Hon. Reggie B. Walton, Judge, U.S. District Court for the District of Columbia Hon. William Sessions, Vice Chairman, U.S. Sentencing Commission Brace Nicholson, Legislative Counsel, American Bar Association David Kirby, Former United States Attorney for the District of Vermont Good Time Panel Four: Rep. Danny K. Davis (IL) Hon. Consuelo B. Marshall, Senior Judge, U.S. District Court for Central District of California Nancy Gertner, Judge, U.S. District Court for the District of Massachusetts Marc Mauer, Executive Director, Sentencing Project Harley G. Lappin, Director, Federal Bureau of Prisons (Discuss overcrowding)
Date: 
Wed, 06/24/2009 - 4:30pm - 7:30pm
Location: 
Orientation Theater-South
Washington, DC
United States

Sentencing: Obama Administration Tells Congress to End Crack/Powder Cocaine Disparity

In a break with the Bush administration, Justice Department officials called Wednesday for the first time for Congress to pass legislation that would undo the vast disparities in sentences for those convicted of crack and powder cocaine possession offenses. For years, drug reformers, civil rights groups, and even the US Sentencing Commission have called for the disparities to be undone, saying they have had a racially disproportionate impact on poor and minority communities.

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Senator Richard Durbin (D-IL) opens the hearing
Under federal sentencing laws adopted in the midst of the crack hysteria of the 1980s, it takes 500 grams of powder cocaine to generate a mandatory minimum five-year federal prison sentence, but only five grams of crack to generate the same sentence. Historically, blacks have accounted for more than 80% of all federal crack convictions, with whites accounting for less than 10%.

Competing bills have been introduced to eliminate or reduce the disparity between crack and powder cocaine sentences, but in previous years they have not gotten far. With the administration now behind eliminating the disparity, this year could be different.

Justice Department Criminal Division Chief Lanny Breuer told a Senate Judiciary Committee subcommittee Wednesday that the administration supported bills that would equalize punishments for crack and powder cocaine offenses. The disparity should be "completely eliminated," he said.

"Now is the time for us to reexamine federal cocaine sentencing policy, from the perspective of both fundamental fairness and safety," Breuer told the Judiciary subcommittee on crime and drugs. He added that a Justice Department panel is reviewing a broad range of criminal justice topics, including sentencing reforms.

It's about time, said Sen. Richard Durbin (D-IL), the Senate majority whip, citing the racially disproportionate crack conviction figures. "These racial disparities profoundly undermine trust in our criminal justice system and have a deeply corrosive effect on the relationship between law enforcement and minority communities," Durbin said.

US District Judge Reggie Walton, representing the Judicial Conference, also addressed the committee. The crack/powder cocaine sentencing disparity is "one of the most important issues confronting the criminal justice system today," he said. "No one can appreciate the agony of having to enforce a law that one believes to be fundamentally unfair to individuals who look like me," said the judge, who is black.

Sentencing reform advocacy groups were also on hand for the hearing. Mary Price, vice president and general counsel for Families Against Mandatory Minimums (FAMM) told the subcommittee the sentencing disparity has a discriminatory impact on blacks, including people like FAMM client Eugenia Jennings, now serving a 20-year prison sentence for twice trading small amounts of crack for designer clothes.

"This hearing gives new hope to thousands who have loved ones serving harsh sentences for low-level, nonviolent drug offenses," Price said.

Even former DEA head and enthusiastic drug warrior Asa Hutchinson had little good to say about the crack/powder cocaine sentencing disparity. "When significant numbers of African Americans on the street question the fairness of our criminal justice system, then it becomes more difficult for the officer on the street to do his or her duty under the law," Hutchinson said.

A number of bills have been filed in both the House and the Senate to address the crack/powder cocaine sentencing disparity. Now, the fight will be to ensure that eliminating the disparity means reducing crack sentences, not increasing powder ones.

Click here to view archived video of the hearing.

Obama Supports Ending the Cocaine Sentencing Disparity

Good news from Washington, D.C.:

Justice Department officials this morning endorsed for the first time proposed legislation that would eliminate vast sentencing disparities for possession of powdered versus rock cocaine, an inequality that civil rights groups say has disproportionately affected poor and minority defendants.

Newly appointed Criminal Division chief Lanny A. Breuer told a Senate Judiciary Committee panel this morning that the Obama administration would support bills to equalize punishment for offenders accused of possessing the drug in either form, fulfilling one of the president's campaign pledges.

Breuer explicitly called on Congress to act this term to "completely eliminate" the sentencing disparity. [Washington Post]

The cocaine sentencing disparity has been a festering indefensible abomination for decades, and now that we're finally on track to fix this mess once and for all, I don't hear anyone complaining. It's great that the new administration is following through on their promises to support sentencing reform, but it's also just appalling to think that it's taken this long to get any momentum going towards fixing this notorious injustice. There was never anything to be afraid of.

Fixing dumb laws is the duty of the Congress and they'd be hard pressed to find a dumber one than this. Don't make this more complicated than it has to be. Just fix it already.

TODAY is National Call-In Day: Call Your Representatives NOW

TAKE ACTION

Capital

 

     Today, be one of thousands of people across the country to phone your members of Congress to call for an end to the sentencing disparity between crack and powder cocaine. Your calls will make an important difference.
 
     This National Call-In Day is part of Crack the Disparity National Month of Advocacy, a month-long coordinated push to eliminate the sentencing disparity between crack and powder cocaine.
 
     The current law:

  • overstates the relative danger of crack cocaine compared to powder cocaine;
  • contributes to the growth of our prison population, increasing the financial burden on taxpayers;
  • disproportionately affects African Americans; and
  • uses limited federal resources on low-level street dealers rather than on the major drug traffickers.

      Twenty-three years of a failed policy is long enough!  It's time to end this unjust and disproportionate sentencing policy. To participate call the U.S. Capitol Switchboard right now at 202.224.3121, and ask to speak to your representatives in the Senate and House. Urge them to support and co-sponsor H.R. 265, the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act in the House and legislation in the Senate that eliminates the 100 to 1 disparity between crack and powder cocaine.

    You should place three calls because you have one representative and two senators.
 
     Use this link to help you with your calls to Congress.

Click here for talking points and script

Take Action Alert: National Call-In Day Thursday, April 23

Dear Friends, On Thursday, April 23, thousands of people across the country will phone their members of Congress to call for an end to the sentencing disparity between crack and powder cocaine. We hope that you will mark your calendar and join us. Your calls will make an important difference. The National Call-In Day is part of Crack the Disparity National Month of Advocacy, a month-long coordinated push to eliminate the sentencing disparity between crack and powder cocaine. The current law: • overstates the relative danger of crack cocaine compared to powder cocaine; • contributes to the growth of our prison population, increasing the financial burden on taxpayers; • disproportionately affects African Americans; and • uses limited federal resources on low-level street dealers rather than on the major drug traffickers. Twenty-three years of a failed policy is long enough! It's time to end this unjust and disproportionate sentencing policy. To participate, mark your calendar for April 23, call the U.S. Capitol Switchboard at 202.224.3121, and ask to speak to your representatives in the Senate and House. Urge them to support and co-sponsor H.R. 265, the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act in the House and legislation in the Senate that eliminates the 100 to 1 disparity between crack and powder cocaine. You should place three calls because you have one representative and two senators. Use this link (talking points and script) to help you with your calls to Congress: http://sentencingproject.org/AdvocacyMaterialDetails.aspx?AdvocacyMateri... - The Sentencing Project

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