A Third Way On Drug Laws

By Kevin A. Sabet
Monday, December 4, 2006

Some say that the state of Michoacan, deep in south Mexico, is where the "war on drugs" really started, back in 1985. It was there that Mexican drug lords upped the stakes by burying in a shallow grave the body of a young Drug Enforcement Administration agent, Enrique Camarena, whom they had kidnapped and killed. The U.S. Congress responded months later with strict anti-drug laws, including a mandatory minimum sentence of 10 years in prison for anyone trafficking in five grams of crack cocaine or 500 grams of powder cocaine.

At that time, crack was certainly producing more violence on the streets than powder cocaine, and beat cops were expressing frustration at this ever-increasing drug market. Undoubtedly it was a time to enact "tough" legislation. But today, more than 20 years later, drug-related killings remain commonplace in that region of Mexico. Six police officers were found dead there one day last month. And though crack cocaine use has decreased dramatically since the mid-1980s, the debate over what to do about our drug problem rages on.

On the same day as the recent police killings in Mexico, the U.S. Sentencing Commission -- an independent judicial body that advises Congress on sentencing laws -- held hearings on the effectiveness of the federal cocaine law. Should five grams of crack cocaine continue to trigger the same sentence as 500 grams of powder cocaine? The answer is clearly no.

The Sentencing Commission has written that there is a "widely held perception that the current penalty structure . . . promotes unwarranted disparity based on race." The evidence that trafficking laws disproportionately affect blacks is hard to quantify, since there is little national demographic data on traffickers. Still, this law undoubtedly helps funnel young black men (a mind-boggling 85 percent of federal defendants in crack cocaine cases are black) into prison at rates that should cause us concern.

Most of these people are street-level dealers rather than high-level traffickers. Theoretically, a mid-to-high-level dealer caught with 499 grams of cocaine could get a lighter sentence than any one of the scores of much lower-level crack dealers he supplied the drug to (crack is a simple combination of powder cocaine and baking soda). Perhaps most troubling, the law has caused many Americans to lose faith in the criminal justice system even as it has increased racial division.

If current laws are unjustified, what are the alternatives? Many drug policy activists will tell you that "our laws don't work" and then quickly conclude that legalization is the most sensible solution. But there's no evidence that works either. If addiction, sickness and community decay are concerns, then it must be said that drug legalization has failed as a social experiment -- witness the massive problems of legalized drugs in other places (remember Switzerland's Needle Park?) or legalized tobacco today (where commercialization fuels addiction and high profits).

But of course no serious drug policy analyst can look you in the eye and tell you that our only alternatives are strict prohibition or lax legalization. There is, in fact, a comfortable position closer to the middle: We can reform the worst parts of our laws without fearing massive increases in drug use. Erasing or dramatically closing the gap between the sentences for crack cocaine and powder cocaine is a good example of this.

The commission last argued for a 20-to-1 sentencing ratio (as opposed to the present 100-to-1) as a politically sensitive solution, and some members of Congress have argued for wiping out the distinction altogether. Just about anything would be better than current policy.

It sounds easier than it is, of course, but the current political climate may be just right. President Bush, two days before his first inauguration, expressed a desire for a change, telling CNN that the law "ought to be addressed by making sure the powder cocaine and the crack cocaine penalties are the same," because he didn't "believe we ought to be discriminatory." With the president now saying he is ready to work with the newly elected Democratic leadership, reform could be within reach.

Such a move would be more about making our drug policies "smart," and less about looking "tough." And it certainly would be about time.

Kevin A. Sabet was a speechwriter for two U.S. drug czars, in the Clinton and Bush administrations. He is a fellow at National Development and Research Institutes Inc. in New York and a PhD candidate at Oxford University.

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