More equity in cocaine sentencing

To make sense of that, one needs to understand the difference between federal sentencing guidelines and the congressionally imposed mandatory minimum sentences. In the 1980s, Congress created the US Sentencing Commission to guard against "unwarranted sentence disparities among defendants with similar criminal records who have been found guilty of similar criminal conduct," according to the commission.

While the commission was developing its guidelines, Congress in 1986 approved a law establishing "mandatory minimum" penalties for many drug offenses. At the time, the crack epidemic was ravaging inner-city neighborhoods, mostly, and the related violence helped provoke a "get tough on crime" backlash. Many lawmakers expected that long, mandatory sentences for possessing or selling crack would discourage drug use. And because many perceived crack to be much more destructive than powder cocaine, Congress established the 100-to-1 ratio. In 1988, it passed another law that established a mandatory minimum penalty for simple possession of crack cocaine.

"This wasn't a racially motivated thing," says Todd Gaziano of the Heritage Foundation in Washington, a conservative think tank. "Crack was destroying the inner cities; even the Congressional Black Caucus supported it."

Since then, studies have shown that the crack-versus-powder sentencing disparity disproportionately affects minorities. Last year, 82 percent of crack defendants were black, according to the sentencing commission, compared with 9 percent who were white. For powder cocaine, it was almost the opposite: About 80 percent of powder-cocaine defendants were white and less than 14 percent were black.

Such statistics have led many conservatives to agree that the sentencing disparity is too harsh.

Several bipartisan bills pending in Congress would whittle the disparity by increasing the penalties related to powder cocaine while reducing the mandatory minimum related to crack. One Republican-sponsored bill would simply increase the powder-cocaine penalty to the penalty level for crack.

Critics of the 100-to-1 ratio, meanwhile, are urging the commission to make its change retroactive. Commissioners plan a Nov. 13 hearing to determine if that's feasible. If the change were retroactive, more than 19,500 people now serving time for crack offenses could see their sentences reduced by an average of 27 months.

"We believe it would be cruelly ironic to recognize and correct the injustice of the guideline that has lengthened thousands of sentences, and then deny the benefit to the very prisoners whose unjust sentences they identified and relied on for evidence of its flawed operation and injustice," says Ms. Price of FAMM.

Previously, when the commission lessened sentencing guidelines for LSD and possession of marijuana plants, the changes were retroactive. But that is unusual. Of 696 amendments made to guidelines since their inception, only 25 were applied retroactively, says a commission spokesman.

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