Cocaine

The US House of Representatives Wednesday approved a bill, SB 1789, that addresses one of the most glaring injustices of the American drug war: the 100:1 disparity in sentencing between federal crack cocaine and federal powder cocaine offenders. The bill does not eliminate the disparity, but dramatically reduces it.

A companion measure passed the Senate in March. The bill now goes to the White House for President Obama's signature, which is expected shortly. The White House supported the bill.

Under federal drug laws enacted during the height of the crack hysteria of the mid-1980s, a person caught with five grams of crack cocaine faced the same mandatory minimum five-year sentence as someone caught with 500 grams of powder cocaine. And though blacks constitute only about 30% of all crack users, they accounted for more than 80% of all federal crack cocaine prosecutions.

The bill approved by Congress reduces that 100:1 ratio to 18:1. It also removes the mandatory minimum sentence for possession of five grams or less of crack, marking the first time Congress has repealed a mandatory minimum since Richard Nixon was president, although not the first time a law involving mandatory minimums has been scaled back. To the dismay of advocates, the bill is not retroactive.

Under the bill, it will take 28 grams of crack to garner a mandatory minimum five-year prison sentence and 280 grams to trigger a 10-year prison sentence. It will still take 500 grams of powder cocaine to trigger the five-year mandatory minimum. Estimates are that, once enacted, the law could affect about 3,000 cases a year, reducing sentences by an average of two years. The shorter sentences should save about $42 million in prison costs over five years.

Criminal Justice Policy Foundation head Eric Sterling has been working to reform the law for nearly two decades -- since just a few years after he helped write it as House Judiciary Committee counsel at the time. The change didn't come nearly fast enough, he said. "I'm very personally relieved," Sterling said. "My role in these tragic injustices has pained me for decades. You realize that probably hundreds of thousands of men and women went to prison for unjustly long sentences that I helped write. It's not something I've ever forgotten."

He didn't think it was going to happen. "I have become so cynical," he said. "I really doubted the leadership was going to bring it to the floor, and I doubted that the Republicans were going to support it. Even though it had passed the Senate, I didn't think the House Republicans were going to go along. But I was pleasantly surprised that people like Reps. James Sensenbrenner (R-WI) and Dan Lundgren (R-CA) spoke in favor of it, and that the House majority leader went to the floor to speak in favor of it. My cynicism was completely unwarranted here, so I'm very relieved and satisfied."

"Members of both parties deserve enormous credit for moving beyond the politics of fear and simply doing the right thing," said Julie Stewart, founder and president of Families Against Mandatory Minimums (FAMM). "For those of us who have been pushing for reform for nearly 20 years, today's vote is phenomenal. To see members of Congress come together on such a historically partisan issue like this during an election year is heartening. The 100:1 disparity was an ugly stain on the criminal justice system," Stewart continued. "Nobody will mourn its passing -- least of all, the thousands of individuals and families FAMM has worked with over the past 20 years that have been directly impacted. I am hopeful that the forces of reason and compassion that carried the day today will prevail again soon to apply the new law retroactively to help those already in prison for crack cocaine offenses," Stewart concluded.

"This is a historic day, with House Republicans and Democrats in agreement that US drug laws are too harsh and must be reformed," said Jasmine Tyler, deputy director of national affairs for the Drug Policy Alliance. "The tide is clearly turning against the failed war on drugs. I'm overjoyed that thousands of people, mostly African American, will no longer be unjustly subjected to the harsh sentencing laws enacted in the 1980s," Tyler said. "The compromise is not perfect and more needs to be done, but this is a huge step forward in reforming our country's overly harsh and wasteful drug laws."

"Well, I guess there's 80% less racism, but there's still a big problem, though," said Nora Callahan, director of the November Coalition, a drug reform group that concentrates on federal drug war prisoners. "This is a fix on the back end, but as the US Sentencing Commission noted, sentencing really begins when the police start investigating. That whole drug war system of cops and snitches and prosecutors is still in place."

"Substantively, this is not a major policy change," agreed Sterling, "But symbolically, it's very important. I wouldn't have thought this would have made it to the House floor, and I wouldn't have thought this would pass by two-thirds on a recorded vote."

"This is progress, but it's not retroactive, so all the people who worked so hard to pass this bill don't get any reward," said Callahan. "When you leave out the principle of extending justice to all, it's really tough. How do you tell people sorry, we left you out of it?"

Making the law retroactive will be the next battle, but it won't be the only one. "In concrete terms, the next step will be to try to get retroactivity," said Sterling. "The other side of it is to push the president to start commuting sentences."

The United States has been trying to suppress Colombian coca production and cocaine trafficking since at least the time of Ronald Reagan, but the contemporary phase of US intervention in Colombia in the name of the war on drugs celebrated its 10th anniversary this week. As Washington Office on Latin America (WOLA) security analyst Adam Isaacson pointed out Wednesday in a cogent essay, "Colombia: Don't Call It A Model," it was on July 13, 2000, that President Bill Clinton signed into law a $1.3 billion package of mainly military assistance known as Plan Colombia.

Plan Colombia was supposed to cut Colombian cocaine production in half by mid-decade, and while total US expenditures on it have now risen to $7.3 billion, that goal was clearly not met. But, a decade down the road, there has been some "progress." The leftist peasant guerrillas of the FARC have been seriously weakened and are operating at half the strength they were 10 years ago. Violence has steadily decreased, as has criminality. The Colombian state has been strengthened -- especially its military, which has nearly doubled in size.

Still, as Isaacson notes, those gains have come at a tremendous cost. Thousands have been killed at the hands of rightist paramilitary groups aligned with powerful landowners and political elites, and while those paramilitaries officially disbanded several years ago, they appear to be reconstituting themselves. The seemingly endless "parapolitics" scandals linking the paramilitaries to high government actors demonstrate that the price of "progress" in Colombia has been corruption, impunity and human rights abuses.

And the war continues, albeit at a lower level. Some 21,000 fighters from all sides and an estimated 14,000 civilians died in the fighting this decade, and all the while, peasants were planting and harvesting coca crops, and traffickers were turning it into cocaine and exporting it to the insatiable North American and, increasingly, European markets.

While Colombian and US policy-makers have hailed Plan Colombia as a "success," neither Isaacson nor other analysts who spoke to the Chronicle this week were willing to make such unvarnished claims. "'Success' has come at a high cost," wrote Isaacson. "Colombia's security gains are partial, possibly reversible, and weighed down by 'collateral damage,'" including mass killings, other human rights abuses, and the weakening of democratic institutions."

"Success has eluded efforts to achieve Plan Colombia's main goal: reducing Colombian cocaine supplies," wrote Isaacson. Despite years of aerial eradication, coca remains stubbornly entrenched in the Colombian countryside, showing a significant decline only last year, after Colombia switched its eradication emphasis from spraying to manual eradication. "This strategic shift appears to be reducing coca cultivation, for now at least. In 2009 -- a year in which both aerial and manual eradication dropped sharply -- the UNODC found a significant drop in Colombian coca-growing, to 68,000 hectares."

But, as Isaacson and others note, that decline has been offset by increases in cultivation in Peru and Bolivia. In fact, total coca cultivation in the region has remained remarkably consistent since 2003, at about 150,000 hectares per year.

"If you look at it from point of aiding the Colombian government to fight against the FARC and other insurgents, it has worked," said Juan Carlos Hidalgo, Latin American analyst for the libertarian-leaning Cato Institute. "A decade ago, Colombia was close to being a failed state, with the FARC controlling large swathes of territory and threatening major cities. Today they are terribly weak and on the run, and much of their leadership has been killed," he noted.

"Due to the widespread use of helicopters and the fact that guerrillas don't have that kind of mobility, the Colombians and Americans have been successful in shrinking the area of operation available to the guerrillas, and that has hurt the guerrillas' ability to recruit," said Larry Birns, director of the Council on Hemispheric Affairs. "A few years ago, there were maybe 16,000 FARC operating in six or seven major theaters, and now it's about half that. But that doesn't necessarily mean the FARC is finished; we haven't seen any sign of that. Their options are fewer, but they are far from disappeared. Plan Colombia has been successful in empowering the Colombian military, but not so much in solving the problem of the FARC insurrection."

"On the military side, the counterinsurgency, there has been definite progress," agreed Vanda Felbab-Brown, a drugs and counterinsurgency expert at the Brookings Institution. "The situation in the late 1990s was very bad. The FARC was in the hills above Bogotá, and the paramilitaries were highly organized. Today, the FARC is much weaker, land travel is more possible, and other security indicators also show progress. That said, the FARC is still around in substantial numbers and can jeopardize security and economic development in particular areas. And the paramilitaries are back, even if the Colombian government insists they are not the paramilitaries. They are, for all intents and purposes, just like the paramilitaries of the 1980s and 1990s."

"The idea was that if they suppressed the coca, the capabilities of the FARC, the ELN, and the paramilitaries would be substantially weakened," said Felbab-Brown. "They said that if you eliminated coca in Colombia, the conflict would end, but I don't think you can bankrupt the belligerents through eradication. That didn't pan out. In some places, the government was able to diminish at least temporarily economic flows to particular elements of the FARC, but that was the result of military operations, not eradication," she argued.

"A lot of people say the FARC have lost their political agenda, that they are just traffickers, but I don't subscribe to that view," said Felbab-Brown. "If someone wants to conduct a rebellion, they have to have a way to finance it. I don't think the FARC is any different. One of the big accomplishments of the US and the Colombian military was taking out a lot of top FARC leaders," she continued. "Their current leaders have been out in the jungle so long, they suffer from a lack of intellectual imagination. But the FARC are peasant guerrillas, with a few intellectuals and students, and they were never strong ideologically. There is no equivalent of Comrade Gonzalo [of Peru's Shining Path] or Mullah Omar or Bin Laden for the FARC. And I think they've run out of ideas. Times have changed, and the ideological story they want to tell the world and their members is crumbling, but it's not the case they are just interested in money. They still want power, they still believe in narratives of war and conquest, but they don't have anything to frame it with anymore."

"They are about more than just criminality," agreed Isaacson. "They're raising drug money to buy guns and those guns are for something. While their ideology may be pretty stunted at this point, they are driven by a desire to take power -- unlike, say, the Sinaloa cartel, which is driven by a desire to sell drugs. They hate Colombia's political class, and they represent that small percentage of peasants on the fringe. Those boomtowns on the frontier, that's where the FARC's base is. Wherever there is no government and people are on their own, the FARC claims to protect them. They are not bandits -- they are more dangerous than bandits."

The paramilitaries continue to wreak havoc, too, said Felbab-Brown. "They assassinate community leaders and human rights organizers," she said. "In some areas, they collude with the FARC; in others, they fight the FARC over cocaine routes and access to coca production. They are still a real menace, and it is very discouraging that they have come back so quickly. That shows the failure of the Colombian government to address the real underlying causes of the problems."

That has been a serious flaw from the beginning, the Brookings Institution analyst said. "At first Plan Colombia was aimed at root causes of conflict and coca production, but that was dropped, and in the Bush administration it morphed into a counternarcotics and counterinsurgency project. Economic development was a minor component of the plan, and the US never tried to pressure Uribe to take on economic redistribution and the distribution of political power, nor has the US been very vocal about human rights and civil liberties issues."

"When Plan Colombia was first conceived, it was primarily a domestic program aimed at drawing in the Colombian population, which at that time had become totally disaffected from the state," recalled Birns. "It was to emphasize economic development, nutrition, and education. It was the Clinton administration that militarized Plan Colombia and made it into a security doctrine rather than an economic development formula."

That only deepened in the wake of 9/11, said Birns. "Increasingly, Plan Colombia morphed first into a counternarcotics program than again into an anti-terrorist vehicle. The US began to define the FARC, which never had any international aspect, as terrorists. It was a convenience for the US policy of intervention to emphasize the terrorism aspect."

But at root, Plan Colombia was first and foremost about reducing Colombian coca and cocaine production. "It wasn't sold here in the US as a counterinsurgency effort, but as an effort to reduce the supply of cocaine to the US market," Cato's Hidalgo pointed out. "If you look at the acreage of coca planted in Colombia, it has decreased, but the production of coca remains the same, and coca production is increasingly dramatically in Peru and Bolivia. Once again, we see the balloon effect at work."

"As the reduction took place in Colombia, it simply moved back to Peru, whence it originally came," concurred COHA's Birns. "Peruvian cocaine production is now half the regional total, so total cocaine production remains essentially the same, even though there has been a reduction in the role Colombia plays."

"One of the best measures to see if the supply of cocaine has decreased is to look at price, but what that tells us is that cocaine was 23% cheaper in 2007 than it was in 1998 when Plan Colombia was launched," said Hidalgo. "It is clear that Plan Colombia has failed in its main goal, which was to reduce the supply of cocaine to the US market."

"We've tried everything," said Hidalgo. "Aggressive aerial spraying of fields, manual eradication, as well as softer measures to entice producers to adopt other crops, and it's all failed. As long as the price of cocaine remains inflated by prohibition, there is big profit and a big incentive for producers and traffickers to grow the plant and export the product to the US and elsewhere. The only way to curtail this is by legalizing cocaine. Other than that, I don't see this as a battle that can be won."

Felbab-Brown called the coca and cocaine production estimates "extraordinarily squishy," but added it was clear that Plan Colombia had failed to achieve its goals there. "The plan was supposed to halve production in six years, and that clearly was not accomplished," she said. "It would be false to deny there has been some progress, but it has not been sufficient. I think it was bound not to work because it was so heavily focused on eradication in the context of violence and underemphasized the need for economic programs to address why people cultivate coca. And the larger reality is even if you succeeded in Colombia, production would have moved elsewhere."

Counternarcotics cannot solve Colombia's problems, said Felbab-Brown, because coca is not at the root of those problems. "There is only so much that counternarcotics programs can do given the basic economic and political situation in Colombia," said Felbab-Brown. "You have a set-up where labor is heavily taxed and capital and land are lightly taxed, so even when you get economic growth, it doesn't generate jobs, it only concentrates money in the hands of the rich. The Colombian government has been unwilling to address these issues, and inequality continues to grow. You can only do so much if you can't generate legal jobs. You have to take on entrenched elites, the bases of political power in Colombia, and Uribe's people are not interested in doing that."

But Uribe will be gone next month, replaced by his elected successor, Juan Manuel Santos. That could mean change, said Isaacson. "He's not as ideologically to the right as Uribe, some of his appointments indicate people who actually have an interest in governance, and he is the principle author of the program they're carrying out in the countryside to get the state and not just the military out there," he said. "He could also be more open to the idea of peace negotiations than Uribe was."

That may or may not be the case, but Plan Colombia under whatever president is not going to solve Colombia's drug problem -- nor America's, said Isaacson. "At home, we need to reduce demand through treatment and other options," he said. "In Colombia, as long as you have parts of the country ungoverned and as long as members of the government have nothing to fear if they abuse the population, there will always be drugs. Colombia needs to build the state and do it without impunity. We built up the Colombian military, but there was no money for teachers, doctors, or any public good besides security."

A coca-based soft drink went on sale in Bolivia this week. Coca Colla, made from the coca leaf and named after Bolivia's indigenous Colla people, is the latest manifestation of President Evo Morales' quest to expand legal markets for coca products.

The first batch of Coca Colla, about 12,000 half-litre bottles going for $1.50 each, went on sale in La Paz, Santa Cruz, and Cochabamba. Like Coca-Cola, it is black, sweet, and comes in a bottle with a red label. Unlike Coca-Cola, which originally used full-fledged coca leaf extract but began de-cocainizing it early in the company's history, Coca Colla is the real thing.

While Morales' government has vowed zero tolerance for cocaine, it has encouraged Bolivian companies to use coca in products including tea, syrups, toothpaste, liqueurs, candies, and cakes. The Bolivian government backed Coca Colla from the beginning. If Coca Colla and other coca products take off, the government could expand the amount of land authorized for legal coca production from the current 30,000 acres to as much as 50,000 acres.

"We are seeing how we can give it impetus, because the industrialization of coca interests us," the deputy minister of rural development, the BBC quoted the deputy minister of rural development, Victor Hugo Vázquez, as saying.

Five years ago, Paez indigenous people in Colombia launched a coca-based soft drink, Coca Sek. But that drink was banned in 2007 following pressure from the International Narcotics Control Board (INCB), which enforces the international drug treaties that consider coca a drug. No word yet from the INCB on Coca Colla.

The US Senate approved on a voice vote Wednesday a bill that would reduce, but not eliminate, the disparity in sentences handed down to people convicted of crack versus powder cocaine charges. The bill championed by Sen. Dick Durbin (D-IL), S. 1789, would reduce the current, much maligned, 100:1 ratio to 18:1.

Under current law, it takes only five grams of crack cocaine to earn a mandatory minimum five-year federal prison sentence, but 500 grams of powder cocaine to garner the same sentence. The law has been especially devastating in black communities, which make up about 30% of all crack consumers, but account for more than 80% of all federal crack prosecutions. Under the bill passes by the Senate, it would now take an ounce of crack for the mandatory minimums to kick in.

Durbin's bill originally called for completely eliminating the sentencing disparity, but was stalled until a Senate gym meeting between Durbin and opposition Judiciary Committee heavy-hitters Sens. Orrin Hatch (R-UT) and Jeff Sessions (R-AL). After that informal confab, the bill was amended to 18:1 and passed unanimously last week by the committee.

A bill in the House by Rep. Bobby Scott (D-VA) that would completely eliminate the disparity by the simple act of eliminating all references to crack in the federal statute, HR 3245, passed out of the House Judiciary Committee last July, but has not come to a floor vote. Now that the Senate has approved its bill, pressure will be on the House to just approve the Senate version.

Sen. Durbin told the Associated Press that while he had originally sought to completely eliminate the disparity, the final bill was a good compromise. "If this bill is enacted into law, it will immediately ensure that every year, thousands of people are treated more fairly in our criminal justice system," he said.

Durbin added that the harsher treatment of crack offenders combined with federal prosecutors' predilection for disproportionately going after black crack offenders had eroded respect for the law. "Law enforcement experts say that the crack-powder disparity undermines trust in the criminal justice system, especially in the African-American community."

But drug reformers and civil rights groups that had pushed for complete elimination of the sentencing disparity had a definitely mixed reaction to the Senate vote. It was progress, but not enough, they said.

"We strongly supported Sen. Durbin's bill, which would have completely eliminated the disparity," said Wade Henderson, head of the Leadership Council for Civil and Human Rights in a statement Wednesday. Adding that the group was "disappointed" that disparities remain, Henderson said that "this legislation represents progress, but not the end of the fight."

"Today is a bittersweet day," said Jasmine Tyler of the Drug Policy Alliance in a Wednesday statement. "On one hand, we've moved the issue of disparate sentencing for two forms of the same drug forward, restoring some integrity to our criminal justice system. But, on the other hand, the Senate, by reducing the 100:1 disparity to 18:1, instead of eliminating it, has proven how difficult it is to ensure racial justice, even in 2010."