Penalties for Crack

Monday, November 26, 2007

THIS MONTH, a measure of rationality was injected into federal sentencing guidelines when more lenient penalties for crack cocaine became the law of the land. The new guidelines will affect defendants convicted in the future, but they also should be made retroactive. That would bring some measure of equity to thousands of offenders -- roughly 85 percent of them African American men -- already serving unjustifiably long prison terms.

In May, the U.S. Sentencing Commission, which has the authority to craft sentencing guidelines for federal crimes, sent to Congress a proposal that would reduce the penalties for crack offenses. For example, a first-time offender caught with five grams of crack previously faced a prison term of up to 78 months; under the new sentencing scheme, he faces a maximum of 63 months. The commission had forwarded such recommendations several times before, only to have them vetoed by Congress. This time, to lawmakers' credit, the measure was allowed to stand.

The commission is considering whether to make the more lenient penalties retroactive -- a power it can exercise without congressional approval. It estimates that 19,500 prisoners would be eligible for reduced sentences, including roughly 270 prisoners from the District, 280 from Maryland and 1,400 from the Eastern District of Virginia, which includes Northern Virginia and Richmond.

The Justice Department and some in the law enforcement community worry that allowing early release for so many crack offenders would affect public safety. But the evidence suggests the worries are overblown. For starters, any reduced sentence must be approved by a federal judge, who may take into account a prisoner's criminal history and other factors. Federal prosecutors also have a voice in this process and can raise objections to a particular prisoner's sentence reduction. And not all of the 19,500 would be released at once. Different numbers of prisoners would become eligible for early release at different times over a period of three decades, according to a commission analysis. In the District, 32 inmates would be eligible for immediate release if the reforms were made retroactive; in Maryland, the number would be 21; in the Eastern District, 48.

The lunacy in crack penalties will not be eliminated until lawmakers grapple with the mandatory minimum sentences now in place. These statutes mandate a five-year sentence for someone caught with five grams of crack; an offender would have to be caught with 500 grams of powder cocaine to trigger the same sentence. There are good arguments for why crack should carry tougher sentences than powder cocaine, including the fact that crack is ferociously addictive and destructive. But a 100-to-1 disparity is irrational. Lawmakers should act quickly on one of the several bills pending in Congress that would narrow that gap.

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