Justice Department Fights to Maintain Cocaine Sentencing Disparities

By Phillip Smith, DRCNet. Posted April 1, 2002.

Attorney General John Ashcroft's Justice Department is digging in its heels over proposed changes to federal cocaine sentencing guidelines. The US Sentencing Commission has been holding hearings on the disparities in sentencing for the sale of crack and powder cocaine. Under current law, possession of five grams of crack nets the same five-year mandatory minimum sentence as the sale of 500 grams of powder cocaine, a 100-to-1 ratio that has left thousands of people, primarily African-Americans, facing years in prison for small-scale drug dealing.

The current sentencing regime has been widely denounced as unfair, inhumane, racially discriminatory and lacking any scientific basis -- not only by the usual suspects, but by the Sentencing Commission itself, the Judicial Conference of the United States (representing federal judges), and even congressional Republican drug warriors such as Senators Orrin Hatch (UT) and Jeff Sessions (AL), who in January introduced a bill that would reduce disparities by raising the crack trigger to 20 grams and lowering the powder cocaine trigger to 400 grams.

Even President Bush has weighed in against the existing disparities. Fourteen months ago, as he entered office, Bush said: "I think a lot of people are coming to the realization that maybe long minimum sentences for the first-time user may not be the best way to occupy jail space and/or heal people from their disease." Bush also added that he supported "making such the powder cocaine and the crack cocaine penalties are the same. I don't believe we ought to be discriminatory."

Either Bush has quietly changed his mind or his Justice Department wasn't listening. On March 19, Deputy Attorney General Larry Thompson told the Sentencing Commission 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.

Armed with and speaking from a new Justice Department study that said disparities between crack and powder sentences are not as wide as believed and that the disparity should be reduced by increasing powder cocaine sentences, Thompson defended current policy. "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."

Thompson and the Justice Department also alleged that crack, which is pharmaceutically indistinguishable from powder cocaine, is somehow more dangerous than powder. "If the debate over the appropriate sentences for crack and powder is to have any real meaning, it must be based on actual data, and it must take into account the more dangerous nature of crack cocaine," the study said.

"Crack can be easily broken down and packaged into very small and inexpensive quantities, making it particularly attractive to some of the more vulnerable members of our society," Thompson added.

But a memo produced by Ron Weich and distributed by the ACLU shreds Thompson's arguments and the study's findings:

* DOJ says the current penalties are "proper." "In defending the current statutes, DOJ stands alone against the weight of scientific, legal, and judicial opinion," notes the memo. "Un-contradicted expert testimony makes clear that crack and powder cocaine are pharmacologically identical. The 100-to-1 ratio in current law leads to unfair and discriminatory sentences. Over 90% of federal crack defendants are African-American, fueling severe disparities in the criminal justice system as a whole."

* DOJ says the actual ratio is somewhat lower than 100:1. "The statutes are unambiguous," responds the ACLU. "The same mandatory minimum sentence is triggered by 100 times less crack than powder cocaine." The DOJ study found that powder offenders served an average 13 months for five grams, while crack offenders served 70.5 months. "That 5.4-to-1 ration is astonishing considering that crack is nothing more than a processed form of powder cocaine."

* DOJ says if any changes are made, powder sentences should be increased. "No one seriously believes that current powder cocaine sentences are insufficient to fulfill the purposes of punishment," the memo noted. "Mr. Thompson conceded to the commission that there is 'no evidence that existing powder penalties are too low.'"

* DOJ says current law adequately allows for consideration of mitigating factors. "Such consideration is explicitly precluded by the application of mandatory minimum sentencing laws," the ACLU retorted.

* DOJ says lowering crack penalties sends the "wrong message." "Current law, based as it is on the scientifically indefensible and racially disparate 100-to-1 ration sends the wrong message: that the criminal law is unfair," said the ACLU memo. "If anti-drug efforts are to have any credibility, especially in minority communities, these penalties must be significantly revised."

The Sentencing Commission could vote on changes to the guidelines as early as April 5.

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