Repairing a Crack in the System

By Paul G. Cassell
Monday, November 12, 2007; 7:55 PM

Today the United States Sentencing Commission holds a hearing on its recent decision to reduce the disparity in federal sentencing guidelines for crack and powder cocaine offenses. As a former federal judge and chairman of the federal judiciary's Criminal Law Committee, I believe the change in guidelines was long overdue, and, to maximize its impact as an important first step toward restoring the credibility of federal drug sentences, it should be applied retroactively.

The crack and powder cocaine disparity traces back to the Anti-Drug Abuse Act of 1986, which set various mandatory minimum sentences for drug trafficking based on how much of a drug was distributed. For powder cocaine, the quantity needed to trigger a mandatory minimum was 100 times more than that for crack cocaine -- a penalty scheme referred to as the "100-to-1 drug quantity ratio." It meant that someone convicted of distributing just five grams of crack cocaine would get at least five in prison, the same as someone convicted of distributing as much as 500 grams of powder cocaine.

The ratio was a well-intentioned response to the crack-related violence of the 1980s. But its effects have been more harmful than good. It has exaggerated the relative harmfulness of crack cocaine, forcing stiff sentences on mostly small-time drug dealers. Additionally, it has had a disproportionate impact on minorities. About 80 percent of convicted crack dealers are African American, while whites tend to be more heavily involved in powder cocaine trafficking. The sentencing disparity, therefore, prolonged sentences for minority offenders without sound justification.

Even more pernicious, the disparity corroded the effectiveness and legitimacy of the federal criminal justice system. In part because of the 100-to-1 ratio, many Americans, particularly in minority communities, came to be suspicious of federal law enforcement. When people believe the system is racist or otherwise unfair, they are less likely to convict when serving on a jury. They are also less likely to willingly testify as witnesses and report crimes to the police.

So, after years of controversy, the amended sentencing guidelines that took effect this month are a welcome change. The Sentencing Commission, which sets guidelines for federal judges, essentially narrowed the guidelines gap by reducing the recommended sentences for the majority of crack cocaine offenses. Ultimately, the disparity should be reduced even further -- to something closer to 10-to-1. But even the recent change will noticeably reduce crack sentences. Whereas previously the average sentence for crack cocaine offenders was 121 months, now the average sentence should be closer to 106 months, according to the advocacy group the Sentencing Project.

Today's hearing, though, will focus largely on whether to apply the change retroactively. That would make about 19,500 crack cocaine offenders now in prison eligible for shorter sentences.

Yet the Justice Department "strongly opposes" such a move. In a letter to the commission, the department expressed concern about the "sweeping impact" retroactive application would have. This curious, misery-loves-company argument seemingly suggests that the commission should correct small injustices, but not significant ones.

The department also argues that re-sentencing offenders would "impose enormous and unjustified costs" on the federal court system. But even the department's possibly exaggerated estimate, in the millions of dollars, would be dwarfed by the more than $1 billion that could be saved by releasing prisoners early from expensive prison cells.

Justice is on somewhat firmer ground in worrying that early release "would jeopardize community safety and threatens to unravel the success we have achieved in removing violent crack offenders from high-crime neighborhoods." But, during my time on the federal judiciary's Criminal Law Committee, we offered suggestions for ensuring that former felons are properly supervised when released, for example by deploying additional probation officers or expanding the use of halfway houses.

Now that the recommended sentences for crack distribution have been reduced, it would be unjust to continue to incarcerate offenders based on discredited calculations. Doing so would create the spectacle of two felons convicted of the same offense serving significantly different prison terms because of the happenstance of their sentencing date.

Furthermore, in other cases where the commission formulaically reduced drug sentencing guidelines, as it did with LSD and marijuana, it made the changes retroactive. As a matter of simple fairness, it should follow that conventional approach here.

But, most important, the skepticism toward the federal justice system will continue -- and, indeed, be strengthened -- if all of those 19,500 prisoners are made to serve their full sentences. To help restore public confidence, the Sentencing Commission must make its crack cocaine amendment retroactive.

The writer is a law professor at the University of Utah. He was nominated as a federal judge by President Bush and served on the U.S. District Court in Utah from 2002 to 2007.

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