Democrats Could End Discriminatory Prison Sentencing Rules

A new Democratic majority in Congress may finally be able to push through a recommendation from the U.S. Sentencing Commission to end the disparities in crack versus powdered cocaine sentencing, reform advocates say.

Critics of the current sentencing policy say it discriminates against black defendants who get substantially more prison time for possession of much smaller amounts of crack than those convicted of possession of powdered cocaine.

A conviction for possession of 500 grams of cocaine carries a mandatory five-year prison sentence, but it only takes five grams of crack cocaine to get the same sentence.

"Over-incarceration within black communities adversely impacts those communities by removing young men and women who could benefit from rehabilitation," Carmen Hernandez, president-elect of the National Association of Criminal Defense Lawyers testified before at a commission hearing two weeks ago. "Drug amounts consistent with state misdemeanors become federal felonies, resulting in disenfranchisement, disqualification for important public benefits, including student loans and public housing, and significantly diminished economic opportunity. As a result, many of these persons become outsiders for a lifetime, and their families suffer incalculable damage and suffering."

The Commission held a daylong public on Nov. 14 at Georgetown University Law Center in Washington, D.C., with testimony from judges, lawyers, law enforcement officials, the ACLU, the NAACP and the Fraternal Order of Police. The commission has recommended three times to Congress that the sentencing gap be narrowed.

A bill pending in Congress, sponsored by Rep. Jeff Sessions (R-Ala.) would reduce the penalty for crack cocaine and raise the penalty for powder cocaine and would also shift the emphasis from the quantity of the drug possessed to the type of criminal conduct related to possession.

For example, the bill would increase penalties for violent crimes and for dealers who use women and children as couriers. It would decrease penalties for those who play minimal roles in the distribution of drugs, for example a girlfriend or a child of a dealer who was not compensated for carrying or delivering the drugs.

Current sentencing policy "is a gut civics lesson in how difficult it is to undo policy mistakes," said Dr. Gail Christopher, director of the Joint Center for Political and Economic Studies Health Policy Institute.

"Legislators make laws; they don't unmake them," Christopher told BlackAmericaWeb.com. "Laws such as 'three strikes-you're out,' and zero tolerance haven't been informed by research but by headlines and reaction."

Christopher said she is hopeful that the Democratic majority in Congress -- particularly in the House where Rep. Maxine Waters (D-Calif.) and John Conyers (D-Mich.), who have been outspoken supporters of sentencing reform will now have key committee positions -- will be able to push through legislation correcting sentencing inequities.

U.S. District Judge Reggie B. Walton, who was an early supporter of heavier punishment for crack cocaine charges, told the sentencing commission that the discrepancy in sentencing had become "unconscionable."

In his testimony, Walton said that punishment must be fair. "And just as important, the punishment must be perceived as fair. While I cannot categorically say that some degree of difference in punishment for crack and powder cocaine is not warranted, no reasonable justifications exist for the 100-to-1 disparity."

Walton, a former federal prosecutor who was a deputy drug czar in President George H.W. Bush's administration, told BlackAmericaWeb.com that he never anticipated that the disparity in sentencing would become so great.

"It creates a perception of the judicial process," Walton said. "I have heard comments from jurors and prospective jurors and a large percentage of African-Americans feel the criminal justice system is not fair."