Reefer Madness: Federal Sentencing Law Up for (Watered-Down) Reform

Senate committee passes compromise bill on sentencing disparity

U.S. Sen. John Cornyn 
hasn't warmed to the idea of reforming sentencing disparities.
U.S. Sen. John Cornyn hasn't warmed to the idea of reforming sentencing disparities. (Photo by John Anderson)

After years of discussion and hand-wringing, a U.S. Senate committee on March 11 unanimously passed a bill to do away with the infamous 100-to-1 sentencing disparity between crack and powder cocaine. Unfortunately, it's not the bill that advocates – or President Barack Obama – wanted to see make it to the floor.

While the bill, S 1789 by Sen. Richard Durbin, D-Illinois, eliminates the 100-to-1 scheme, it replaces it with a roughly 20-to-1 sentencing disparity and directs the U.S. Sentencing Commission to enhance sentences upward based on aggravating factors (including if violence was involved in the deal). Under the current sentencing scheme, possession of just 5 grams of crack yields a five-year prison sentence, while it would take 500 grams of powder cocaine to net the same time behind bars. Current law also provides a mandatory-minimum sentence for simple possession of crack – the only drug for which mere possession means prison. Under the new bill, this simple possession provision would be eliminated (the first time a man-min sentence has been axed since the Nixon administration, notes the advocacy group Families Against Man­da­tory Minimums).

All this is despite the fact that crack and powder cocaine are the same drug – the difference, experts say, is only in the manner in which the drug is ingested. And the effect of the disparity has been devastating, primarily to low-level minority drug users. Indeed, Texas Federal Judge Ricardo Hinojosa, former acting chair of the USSC, last year told a subcommittee that in fiscal year 2008 alone, African-Americans accounted for more than 80% of defendants sentenced to do federal time on crack charges.

The USSC has for years encouraged eliminating the disparity and in recent years took it upon itself to try to reverse the 24-year-old sentencing scheme. Finally, federal lawmakers are catching up to do the same, but the new 20-to-1 proposal passed last week has left reform advocates less than impressed. Indeed, Durbin's bill initially called for eliminating the disparity altogether – as does the current House version of the bill, HR 265, by Houston Rep. Sheila Jackson-Lee. That straight crack-to-powder relationship was ultimately negotiated out of the bill in an attempt to get the measure out of the full Senate, said FAMM President Julie Stewart. "In order to get it to the full Senate and to the president's desk, this is what it's going to take." That doesn't mean FAMM is particularly thrilled with the creation of yet another sentencing disparity. That said, Stewart said she realizes the compromise is necessary in order to get Senate Republicans on board (including, she notes, Texas Sen. John Cor­nyn, who hasn't exactly embraced the notion of eliminating the racially discriminatory disparity) to get the bill out of the chamber. Clearly, lawmakers felt it was a deal that "had to be struck," she said.

Stewart said her group is "pragmatic enough" to understand that even the less-than-desirable 20-to-1 compromise is better than having no change at all. "But it is unfortunate that we have to swallow this poison pill. We shouldn't have to take such an imperfect fix," she said – especially one that creates a new standard that, like the old one, is "based on no evidence" that somehow crack defendants need to be punished more harshly. Indeed, the federal sentencing guidelines already incorporate a means for increasing penalties for defendants who are dangerous or violent. So ratcheting up sentences based only on what form a drug comes in makes no sense, she says. Under the Senate proposal, it would take 28 grams of crack to trigger a five-year man-min sentence and 280 grams to trigger the 10-year term. The 20-to-1 ratio could affect as many as 3,100 cases each year, reducing prison sentences by an average of about 30 months, says FAMM.

Once Durbin's bill is voted on by the full Senate – which, with the compromise, is expected to happen without a glitch – the measure will have to be reconciled with the House version, which treats the drugs equally. Whether the House bill will ultimately incorporate the 20-to-1 standard, or perhaps whether some middle ground is forged – perhaps 10-to-1 – remains to be seen.

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mandatory minimums, FAMM, crack, drug war, powder cocaine, Sheila Jackson-Lee, John Cornyn, Richard Durbin, drug policy, man-mins

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