Next step to close the cocaine gap

New sentencing guidelines for crack cocaine offenders should also apply to those behind bars.

from the November 14, 2007 edition

Three times in 12 years the US Sentencing Commission has condemned wide disparities between crack and powder cocaine penalties. On Nov. 1, Congress finally let the commission adjust its sentencing guidelines. The next step must be to apply the new guidelines to those already in prison.

The Commission held hearings on the idea Tuesday, and is expected to make a decision next year. Making the new guidelines retroactive would mean cutting sentences by an average of at least two years for roughly 19,500 inmates serving crack-related time. That's about a tenth of the federal prison population – an unprecedented mass commutation.

Naturally, such a move raises concerns about public safety and burdening an already overloaded federal court system. The Department of Justice has not hesitated to point out these potential consequences.

But the merits of applying the Commission's new sentencing guidelines to past offenders rests on the merits of doing so for new offenders – and that decision has a solid foundation.

As early as 1995, the Sentencing Commission recognized that Congress had erred when its "mandatory minimum" laws of the 1980s set up vastly different penalties for crack and powder cocaine offenses – especially since the laws were an attempt to create uniformity in drug sentencing. But lawmakers focused on crack cocaine because of its perceived potency relative to the powder form, and its potential to spin off serious street violence.

Mere possession of five grams of crack (the equivalent of five packets of sweetener), brought a minimum sentence of five years. But a person possessing powder cocaine needed to hold 100 times that amount to serve the same time behind bars.

The Sentencing Commission set its guidelines accordingly. Penalties for crack offenders were three to more than six times longer than for powder offenders. The prison population boomed.

In the intervening years, however, the disparity has come under almost universal criticism. It turns out that the harmfulness of crack relative to powder was overstated, and so were the kinds of crimes committed, according to a May report by the Commission.

The tougher penalties have caught mostly lower-level offenders, not major traffickers. And they disproportionately affect African-Americans. As a result, new guidelines that shave the sentences of most new crack offenders took effect this month.

Inmates convicted for crack under the old rules deserve the same justice, just as commission changes for LSD and marijuana sentencing have applied retroactively. But the early release still raises safety and other concerns.

The US Judicial Conference, which represents federal judges and supports making the law retroactive, puts the worries in perspective. In a letter to the Commission this month, it pointed out that judges have discretion to deny commutation to inmates they deem harmful – for instance, to the 36 percent of eligible offenders who used a weapon. And most cases can be handled through a paper process – not time-consuming hearings.

The "challenges do not outweigh the fairness arguments" in applying the new guidelines to current inmates, the letter concluded. The Commission should agree.