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."
Walton said that unfairness, real or perceived, not only impacts those being sentenced, but threatens the fabric of the judicial system for black Americans.
"I have a profound interest in making sure our criminal laws work properly. Obviously we fought very long and hard to give people the opportunity to participate in the criminal justice system as jurors, and if they're opting out of the process because they believe it's unfair" it defeats the purpose of giving black Americans the chance to have a say in the judicial process, Walton said.
"I just think the disparity, however it is fixed," he said, "needs to be fixed."
"We definitely support eliminating the crack/powder cocaine disparity," said Bill Piper, director of national affairs for the Drug Policy Alliance, which advocates no differentiation between sentences for the two different types of cocaine.
Piper told BlackAmericaWeb.com that the Sessions bill "is a step in the right direction, but we don't think it goes far enough" in ending the disparities.
Raising the threshold for the amount of crack needed to trigger the mandatory sentence and lowering it for powder cocaine doesn't really solve the racial disparity, Piper said.
"You're lowering the prison time for African-Americans who are usually charged with crack possession and raising it for Hispanics who usually are charged with powder cocaine. That's a tradeoff we found unacceptable," Piper said.
"Beyond the racial disparities, the (federal) thresholds for crack and powder are too low to get people into diversion programs" on the local court level, Piper said. "The emphasis ought to be in the lower courts to get people diverted to (drug treatment and recovery) programs and the (federal) focus ought to be put on the big dealers."
Piper said that 2002 federal figures showed only about 7 percent of those facing federal charges for cocaine possession were major traffickers.
"If anything, we shouldn't be talking about grams; we should be talking about kilograms," he said.
Chuck Canterbury, national president of the Fraternal Order of Police, told the commission that the FOP was not opposed to adjustments in sentencing, but the organization believed that crack had a more deleterious affect on communities and deserved to be weighted more heavily than powder cocaine. The FOP, he said, wanted to ensure "reasonable mandatory minimums" based on the quantity of the drug in a defendant's possession.
"We believe that the sentencing guidelines should include additional aggravating factors -- the presence of firearms or children, use or attempted use of violence are a few examples -- in the determination of a final sentence," Canterbury also said.
Piper said he thought the Sessions bill was dead for this Congress, but "I think with the Democrats taking over (in January) will give it a boost. Now there is an opportunity for a true bipartisan bill."
"I think it has to be absolutely (a bipartisan effort)," Rep. Sheila Jackson Lee (D-Texas.) told BlackAmericaWeb.com.
She said she has been active with her Democratic colleagues on the House Judiciary Committee since coming to Congress in 1995, trying to get sentencing disparities ended.
"One of my first votes was to end cocaine sentencing disparities, not because I believe in drug use, but because I believe in fairness," Lee said.
She said she believes the bipartisan will exists to change the law and give the judiciary the flexibility it needs to hand down more equitable sentences, "so we have to have a new framework."
After this week's hearing, the sentencing commission is likely to work with all three branches of government to develop a new policy plan. It may publish proposed amendments in January, hold another hearing on March and possibly sponsor a panel or two on the issue. The commission has until May 1 to submit any proposed legislation to Congress.
The commission can change sentencing guidelines, but Congress has the final say on mandatory minimum sentences.
"I would hope with the kind of thoughtful thinking between Republicans and Democrats," Lee said, "we would want to be above worrying about criticism that we are soft on crime and reform the system."
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