Reefer Madness

Thanks to long-awaited changes to federal crack-cocaine sentencing guidelines, adopted last year by the U.S. Sentencing Commission – including a provision that makes the revisions retroactive – the first group of convicted crack offenders this week become eligible for early release. Despite the earnest fearmongering of U.S. Attorney General Michael Mukasey – who has been promoting wild stories about crazy crackheads hellbent on creating new urban war zones – Congress failed to heed his warning against releasing low-level offenders and declined to block the law. That's great news for the roughly 2,500 federal prisoners estimated eligible this year to ask the courts for a sentencing reduction – many may become eligible to go home.

It's a big step and long overdue. At issue is the 100-to-1, crack-to-powder-cocaine sentencing scheme enacted by Congress in 1986 at the height of the media-promoted hysteria about a crack epidemic. Crack was more addictive than powder cocaine, went the propaganda, and was infecting cities at an alarming rate (including the threat of a generation of "crack babies"). Congress enacted legislation that sought to punish crack dealers and users more harshly than those popped for powder offenses – even though crack is chemically identical to powder cocaine and with identical effects. The 100-to-1 disparity was born – and, adding insult to injury, was quickly subsumed into the dreaded mandatory-minimum sentencing structure. So it would take possession of just 5 grams of crack to net a five-year mandatory prison sentence, while it would take 500 grams of powder to merit a five-year term. (The new changes will not in fact reduce any mandatory-minimum sentences; however, the revision has set the stage for the next battle: erasing man-min sentencing for low-level drug crimes – several bills pending in Congress seek to do just that.)

None of the doomsday predictions in fact came true – there was no epidemic of crackheads, instead fallout from the headline-fed panic hit families hard. Nearly 15% of all prisoners currently in the federal system are serving crack offenses; more egregious, nearly 82% of those offenders are black. "Twenty years of experiences have taught us all that many of the beliefs used to justify the 1986 [law] were wrong," federal Judge Reggie B. Walton told the Senate Judiciary Subcommittee on Crime and Drugs on Feb. 12. (Notably, Walton was associate director of the Office of the National Drug Control Policy in the late 1980s.) "When large segments of the African-American population believe that our criminal justice system is racist, it presents the court with serious practical problems. People come to doubt the legitimacy of the law – not just the law associated with crack, but all laws."

After a decade of official hand-wringing, the Sentencing Com­mission finally took action last fall, downgrading the sentencing guidelines for crack offenses and then ruling that the reduced guidelines should be applied retroactively. In practice, only nonviolent, low-level offenders will be eligible for a reduced sentence – for example, no one convicted as a "career criminal," an "armed criminal," or handed a straight man-min sentence will be eligible – and the job of reviewing cases and deciding whether time should be reduced is left to the federal courts to decide on a case-by-case basis.

The move was welcomed by many drug-policy reformers, health-policy advocates, and lawmakers – but not by a grim-faced Department of Justice, which apparently hates the entire idea of crack sentencing parity, so much so that officials are apparently willing to lie in order to keep the status quo. Mukasey told the Fraternal Order of Police that "those who are eligible for early release are very likely to commit another crime," and he continues to insist that many of the offenders eligible for sentence reductions are "among the most serious and violent offenders in the federal system." Unfortunately for Mukasey – but fortunately for the rest of us – there is no evidence supporting his claims.

According to the Sentencing Commission, 90% of all federal crack cases involved no violence; of the 1,500 federal prisoners who would be eligible for immediate release, according to an analysis by The Washington Post, 13% had no criminal background, 40.9% were "small-time" offenders, and only 6.5% were in possession of a firearm at the time of their offenses.

Similarly, in two appearances last month on Capitol Hill, U.S. Attorney Gretchen Shappert told lawmakers that although the DOJ is "committed [to a] viable solution" to the crack-powder sentencing disparity, retroactive sentencing is not a way to achieve that goal – since the process will overburden federal judges and prosecutors who will be required to pull out and dust off old case files for review. The horror! To date no judges have echoed this warning, and in his comments last month, Walton noted that the Judicial Council of the U.S., which oversees the work of the judiciary, not only supports retroactivity but also urges abolishing all man-min sentences. And during the Feb. 12 hearing, Sen. Patrick Leahy, D-Vt., chair of the Senate Judiciary Committee, noted that it is the disparate policy that has overburdened the system – the "policy has needlessly swelled our prisons and drained precious federal reserves," Leahy said.

And consider the human toll: Speaking to the House Subcommittee on Crime, Terrorism, and Homeland Security, Michael Short on Feb. 26 told lawmakers that in 1992, at the age of 21, he was sentenced to 20 years in prison for selling crack. "I had no criminal history. I was not a violent offender," he said. He was lucky, however, and last year was granted clemency by President George W. Bush. "I have heard some of the comments some people in positions of power have made about crack-cocaine prisoners – that we are violent gang members and that is why our sentences have to be so much longer. I am not that person, and most of the people I leave behind in prison aren't either," he continued. "I was sentenced for such a long time because of a stereotype."