Sunday, July 26, 2009
THIS YEAR marks the 25th anniversary of legislation that created mandatory minimum sentences and established a 100-to-1 sentencing disparity between crack and powder cocaine. Over those 25 years, something close to consensus has emerged that the imbalance is unfair and possibly discriminatory. Attorney General Eric H. Holder Jr. has called for closing the gap, commenting that "we all know that this egregious difference in punishment is simply wrong." Yet it has persisted, filling America's prisons and undermining many people's faith in the criminal justice system.
The 100-to-1 ratio means that someone with 5 grams of crack -- the weight of two pennies -- receives the same mandatory minimum sentence as someone with 500 grams of powder cocaine. Such stringent rules have put thousands behind bars: Of current federal prisoners, 55 percent are serving time for drug offenses. Given that 84.7 percent of crack cases are brought against African Americans, the clear inequality fuels witnesses' hesitancy to testify and drives judges and juries to take the law into their own hands, torn between mandatory minimums and their own sense of fairness. For too long, fears of being marked "soft on crime" have deterred members of Congress from correcting this palpable wrong. So last week's unanimous move by the House Judiciary subcommittee on crime, terrorism and homeland security to pass the Fairness in Cocaine Sentencing Act -- which would eliminate references to cocaine base from the federal criminal code and thus equalize penalties for crack and powder -- is an encouraging step in the right direction. The executive branch has already begun to work toward a more rational sentencing policy, with Mr. Holder launching a working group within the Justice Department to review sentencing and corrections policy. If Congress and the Justice Department can join forces on this issue, they may be able to make progress in an area that has long needed it.