The prospects for meaningful and progressive reform of the federal crack-powder cocaine sentencing disparities -- five grams of crack nets the same mandatory minimum five-year federal prison sentence as 500 grams of powder -- have been dimmed by the US Sentencing Commission's decision last week to recommend only minor changes in federal statutes next month. The commission also backed away from using its power to amend the sentencing guidelines, which would have made its proposals law in six months unless Congress acted to block them. Between the Sentencing Commission and the "Drug Sentence Reform Act of 2001," cosponsored by Republican Senators Orrin Hatch (UT) and Jeff Sessions (AL), sentencing reform advocates are feeling like they're going nowhere.
In an April 5 statement, the commission announced that it "intends to ask Congress to modify federal drug laws to address the disparity in treatment between crack and powder cocaine." But the statement went on to say that "the Sentencing Commission unanimously concluded that... greater punishment for crack cocaine than for powder cocaine is clearly warranted." Without naming a precise figure, however, the commission added that "the current 100 to 1 drug quantity ratio between the two forms of cocaine is not appropriate."
"The recommendation is that 25 grams of crack be the trigger for the mandatory five-year sentence, said Julie Stewart, head of Families Against Mandatory Minimums (http://www.famm.org), a Washington, DC-based sentencing reform group whose mainstay is families and friends of people serving lengthy mandatory minimum sentences. "This is a disappointment. This is not real progress," she told DRCNet.
"What kind of reform is this?" asked Nora Callahan of the November Coalition (http://www.november.org), another sentencing reform group. "The Sentencing Commission has admitted that only 67 crack defendants in the last three years would have benefited from their proposal," she told DRCNet. "We don't think this is even a half-step toward real reform of the crack-powder disparity. It's cruel," she said.
Stewart told DRCNet the Sentencing Commission had been cowed by a tough Justice Department stand against any changes in the law last month. Then, Deputy Attorney Larry Thompson told the body that current penalties are "proper," that no changes in the law are needed, and that if any changes are made, they should only include raising the sentences for powder cocaine offenses (http://www.drcnet.org/wol/230.html#sentencingcommission).
"Lowering crack penalties now would simply send the wrong message, that we care less about the people and the communities victimized by crack," Thompson told the commission. "It is something we really cannot support."
The Sentencing Commission obliquely acknowledged feeling the fire from Justice. "Some have said the commission could bring either heat or light, or both, to this issue," said commission Chair Diana Murphy, a federal judge from Minneapolis, explaining its decision not to amend the sentencing guidelines. "We have decided we can do best to bring light as opposed to heat at this point."
"Justice really chilled the commission," said Stewart. "The Sentencing Commission has been looking at crack and powder for nine years, and Justice comes up with a two-month study and concludes that that current sentences are proper," she said. "It was a slap in the face to the commission, and they turned the other cheek."
Neither FAMM nor the November Coalition feel much better about the Hatch-Sessions bill, "The Drug Sentencing Reform Act of 2001," S. 1874. That bill would increase the quantity threshold for the five-year mandatory minimum from 5 grams to 20 grams, but would also reduce the threshold for powder cocaine from 500 grams to 400 grams.
Sen. Sessions told USA Today on Monday crack penalties were too high. "The punishment for crack is too heavy, he said. "Five grams is the weight of one nickel. In state court, five grams would get probation."
But under his bill, mere possession of five grams would get a mandatory minimum one-year sentence, down from five-years. The bill also provides sentence enhancements for people in a "leadership role" in a drug offense.
"Sessions has publicly said he was angry with Justice over its performance at the commission, but his crack fix is worse than anything the Sentencing Commission is going to send over," said Stewart. "It's all very depressing. This is an election year, and Congress will play politics with this. Justice already has, and the Sentencing Commission bent with the political winds."
"To call the Hatch-Sessions bill 'reform' is a bad joke," said the November Coalition's Callahan. "This bill is inadequate. It has new penalties. It will not redress the racial disparities," she argued. "Don't they realize that 85% of the federal powder cocaine defendants are black or brown? Maybe they do."
Sentencing reform is only part of the problem, said Callahan. "This is a package deal. They have to stop targeting minority communities, they have to stop over-policing. Racial disparities in the drug war will never be addressed by piecemeal reforms," she said.
Still, sentencing reform is a point of attack, and the battle is not lost. Sen. Patrick Leahy (D-VT) wrote the letter last fall asking the Sentencing Commission for "guidance" on the crack-powder issue. Although Leahy has not drafted a more progressive bill to counter Hatch-Sessions, Callahan, at least, pronounced herself hopeful he would act. And the Sentencing Commission does not make its formal recommendation to Congress until May 15.
"People should be writing to Congress and the Sentencing Commission telling them we need to make crack penalties rational," said Stewart. "They need thousands of letters telling them not to be cowed. We don't believe in quantity-based sentencing, but if we have to accept that, we need to convince Congress that the trigger should be similar to heroin, 100 grams."