The Real Cost of Prisons Weblog

The groups held a breakfast briefing with members of congress and victims of the federal disparity on Tuesday morning. Chocolate bars weighing fifty grams, the equivalent weight that would trigger a 10 year mandatory minimum sentence for crack cocaine, were on hand to demonstrate to members of Congress just how small that quantity is compared to the 5000 grams -- five kilos -- of powered cocaine that garners the same penalty.

The 1986 and 1988 Anti-Drug Abuse Acts created a disparity in sentencing between two forms of cocaine, crack cocaine and powder, at the federal level even though scientific evidence, including a major study published in the Journal of the American Medical Association, has proven that crack and powder cocaine have similar physiological and psychoactive effects on the human body. It takes only five grams of crack cocaine (the equivalent of the contents of two sugar packets) to receive a five-year mandatory minimum sentence, while it takes 500 grams of powder cocaine to receive the same sentence.

As a presidential candidate, then-Senator Obama said the "war on drugs is an utter failure" and that he believes in "shifting the paradigm, shifting the model, so that we focus more on a public health approach." He also called for eliminating the crack/powder cocaine sentencing disparity, repealing the ban on federal funding for syringe exchange programs to reduce HIV/AIDS, and stopping the U.S. Justice Department from undermining state medical marijuana laws. Within 24 hours of taking office, the White House website made clear that Obama's campaign commitments to eliminate both the crack/powder disparity and the ban on syringe exchange funding were now official administration policy.

The Obama Administration has articulated the need to address this issue by completely eliminating the disparity. Current penalties for crack cocaine are excessively harsh and have little to do with an individual's actual culpability and more to do with the color of their skin. It's not fair and it's not working. While two-thirds of crack cocaine users are white or Latino according to the Substance Abuse and Mental Health Services Administration, more than 80 percent of those convicted in federal court for crack cocaine offenses in 2006 were African American.

Last year, the U.S. Sentencing Commission moderately reduced sentences for crack cocaine offenses and the U.S. Supreme Court also ruled that judges have the right to sentence people below the guidelines in Kimbrough v. the United States. However, judicial discretion is still undermined by the statutory mandatory minimum sentences that Congress enacted over 20 years ago, and those mandatory minimums are the source of the crack/powder disparity.

Thus far, two legislative proposals have been re-introduced in the House -- one by Rep. Sheila Jackson-Lee, D-TX, and one by Rep. Bobby Scott, D-VA. Both would end the disparity between powder and crack cocaine sentences. The Senate Crime and Drugs subcommittee will hold a hearing to discuss crack cocaine sentencing on Wednesday, April 29. The House Crime, Terror and Homeland Security committee also will hold a hearing on this issue on May 21.

The stars are aligning to ensure Americans will no longer be subjected to the same draconian policy set in the late 80s, which flies in the face of scientific and legal research. Congress and the administration have an obligation to fix this and show the country that our criminal justice practices will be fair and sentences proportional to the offense. We can no longer prioritize precious federal resources solely on the incarceration of individuals who are low-level, nonviolent drug users and sellers nor permit any racial group to continue to be unjustly targeted.

Jasmine L. Tyler is the Deputy Director of National Affairs for the Drug Policy Alliance. Anthony Papa is the author 15 to Life.

* http://www.huffingtonpost.com/jasmine-tyler/obama-administration-call_b_193028.html

And....
Justice Dept. Seeks Equity in Sentences for Cocaine

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By SOLOMON MOORE
Published: April 29, 2009

A senior Justice Department official urged Congress on Wednesday to lower the mandatory minimum prison sentence for the sale and possession of crack cocaine to match the punishment for powder cocaine, eliminating arbitrary sentencing disparities that have resulted in many more African-Americans’ being jailed for longer terms.

It was the first time such a high-level law enforcement official has endorsed legislation to eliminate inequities in cocaine sentencing. Barack Obama, while campaigning for the White House, had called for an end to the disparity.

“Most in the law enforcement community now recognize the need to re-evaluate current federal cocaine sentencing policy and the disparities the policy creates,” the official, Lanny A. Breuer, the chief of the Criminal Division in the Justice Department, testified before the Crime and Drugs Subcommittee of the Senate Judiciary Committee.

Under current federal laws, conviction for the sale and possession of 50 grams of crack cocaine is punishable by a mandatory minimum of 10 years in prison; it takes 5,000 grams of powder cocaine to trigger the same punishment under the guidelines.

Mr. Breuer said that as of 2006, 82 percent of people convicted of federal crack cocaine offenses were African-American, and 9 percent were white. In that same year, 14 percent of federal powder cocaine offenders were white, 27 percent were African-American and 58 percent were Hispanic.

Senator Richard J. Durbin, Democrat of Illinois and the subcommittee chairman, said he was a proponent of the two-tiered sentencing structure when it was adopted in 1986 during an epidemic of crack cocaine use. But Mr. Durbin said that he and other early supporters, including Joseph R. Biden Jr., who is now vice president, changed their minds as they learned more about the drug.

“Each of the myths upon which we based the disparity has since been dispelled or altered,” Mr. Durbin said. “Crack-related violence has decreased significantly since the 1980s, and today 94 percent of crack cocaine cases don’t involve violence at all.”

Mr. Breuer and other witnesses testified that the sentencing disparities eroded trust in the justice system, overstressed the prison system, and diverted federal law enforcement resources from prosecutions of organized crime and other priorities.

In 2007, the United States Sentencing Commission, a panel that advises federal courts on appropriate prison terms based on legislation, reduced the average sentence for crack cocaine possession to 8 years, 10 months from 10 years, 1 month.

That change was expected to reduce the federal prison population by about 3,800 inmates over 15 years.

So far, 19,239 offenders who were sentenced under the earlier guidelines have applied to have their terms reduced. About 70 percent of those motions have been granted.

Further sentencing reductions would require Congress to pass new legislation. Mr. Breuer said he was leading a working group at the Justice Department that was looking at how to reduce the sentencing disparity while preserving public safety.

Although many law enforcement groups have generally sided with reducing disparities in cocaine sentences, they disagree with the administration about how that might be achieved.

James Pasco, a lobbyist for the Fraternal Order of Police, suggested that prison sentences for powder cocaine should be raised to the level of crack sentences.

“The Obama administration just says they want the disparity addressed,” Mr. Pasco said. “So somewhere between our position for raising sentences for powder, and their position for doing away with disparities there’s room for discussion.”

Jasmine Tyler, of the Drug Policy Alliance, a nonprofit advocacy group supporting the reduction of drug crime sentences, said increasing penalties for powder cocaine would further burden the Federal Bureau of Prisons, which is 140 percent beyond its capacity.

“I would be shocked if that were ever vetted as a real possibility,” Ms. Tyler said.
http://www.nytimes.com/2009/04/30/us/30cocaine.html?_r=1