The Real Cost of Prisons Weblog

P
Aikens is but one of more than 50,000 people sentenced for crack cocaine offenses under mandatory-sentencing laws Congress adopted in the 1980s. Those penalties treated crack cocaine offenses far more harshly than powder-cocaine crimes, even though the two drugs are pharmacologically identical. People convicted of selling 500 grams of powder cocaine receive a five-year prison term, but only 5 grams of crack are required to produce that same mandatory sentence. Since these laws were enacted, extensive research has documented their ineffectiveness and the injustices that have resulted.

Until this year, these mandatory-sentencing laws seemed impervious to change. Congress soundly defeated a reform recommendation from the U.S. Sentencing Commission in 1995, and reform legislation introduced in 2001 did not go far. But growing support for change from a broad spectrum of legal groups and civil rights leaders is finally signaling a real prospect for progress.

On Tuesday, the U.S. Supreme Court will hear a challenge to the crack laws in Kimbrough v. United States. Derrick Kimbrough was convicted of selling crack in Norfolk, Va., in 2005, and under federal sentencing guidelines faced a prison term of 19 to 22 years. But after reviewing the Sentencing Commission's policy arguments for change in the law, the judge concluded that such a term was too harsh. He reduced the sentence to 15 years - still quite severe by most standards. The question before the court: To what extent should federal judges have discretion to consider such policy recommendations when imposing sentences in crack cocaine cases?

The crack issue is receiving high-level attention on Capitol Hill, as well. In the Senate, three reform proposals have been introduced, with hearings anticipated this fall. Legislation introduced by Sen. Joseph R. Biden Jr. (D., Del.) would eliminate the disparity in sentencing between crack cocaine and powder cocaine, while a bipartisan bill sponsored by Sens. Orrin Hatch (R., Utah), Arlen Specter (R., Pa.), Edward M. Kennedy (D., Mass.), and Dianne Feinstein (D., Calif.) would reduce the disparity significantly.

Why has momentum for reform on crack cocaine surfaced so visibly this year? In part, it reflects the growing recognition that the drug war's focus on harsh punishments has come at the expense of needed investments in prevention and treatment. Incarcerating a low-level crack offender for a mandatory five-year prison term costs taxpayers about $125,000, money sorely needed by many publicly run treatment agencies. Further, lawmakers are increasingly concerned about the distortions in prosecution produced by the crack laws.

Mandating the five-year prison term for possession of just 5 grams of crack - the weight of two sugar packets - creates an inevitable trend toward using scarce prison space for low-level offenders. Sentencing Commission data confirm that 60 percent of crack-cocaine defendants serve as street sellers and "mules" of the drug trade.

Finally, the racial distortions produced by the crack policies are unconscionable for a justice system whose premise is fairness and equality. With 80 percent of crack sentences imposed on black defendants - a far higher proportion than the African American share of crack users - these laws have severely skewed already disturbing racial disparities in the justice system.

There is no question that crack cocaine is a dangerous drug that has harmed many families and communities. So, too, have powder cocaine, heroin, methamphetamine, and other substances. The challenge for public policy is to develop proven remedies, not just sound-bite political slogans.

"Getting tough" on drug users may sound catchy, but providing high-quality treatment does much more to reduce substance abuse than warehousing people in prisons.

Marc Mauer (mauer@sentencingproject.org) is the executive director of the Sentencing Project and author of "Race to Incarcerate."
http://www.philly.com/inquirer/opinion/20070927_The_selective_and_unfair_penalty_for_crack.html