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Senate bill would reduce sentencing disparities in crack, powder cocaine cases

By Carrie Johnson
Washington Post Staff Writer
Saturday, March 13, 2010; A03

A long-standing dispute over huge disparities in sentencing between crack vs. powdered cocaine appears to be headed for a resolution in Congress.

Senate lawmakers reached across the aisle and brokered a landmark deal this week to reduce criminal penalties for defendants caught with crack cocaine, hashing out the terms in, of all places, a congressional gym.

Opportunity struck when Sen. Majority Whip Richard J. Durbin (D-Ill.) encountered colleagues Jeff Sessions (R-Ala.) and Orrin G. Hatch (R-Utah) in the Senate gym early Thursday, before they had started their workouts. Durbin seized the moment to advance the legislation and sent his aides an e-mail at 7:35 a.m., outlining the terms of his offer. The deal was sealed with a handshake two hours later at a committee meeting in the Dirksen Senate Office Building.

The often-divided Senate Judiciary Committee unanimously passed the measure 19 to 0 the same day, addressing for the first time in two decades a sentencing disparity that has troubled civil rights organizations, prisoners rights advocates and officials in the Obama White House.

The compromise would reduce the sentencing disparity to 18 to 1 for people caught with crack cocaine vs. those who carry the drug in powdered form. The current ratio has rested since 1986 at 100 to 1, disproportionately hurting African Americans, who are convicted of crack possession at far greater numbers.

The Senate bill would increase the amount of crack cocaine required to trigger a five-year mandatory minimum sentence for possession with an intent to distribute from 5 grams to 28 grams. Possessing cocaine in rock form would no longer carry a mandatory minimum prison term, equalizing that penalty to that of other drugs and marking the first time that Congress has overturned a mandatory minimum.

The House Judiciary Committee passed a cocaine sentencing reform bill in July. That bill would treat all forms of cocaine the same for sentencing purposes, lowering the ratio to 1 to 1.

Durbin and Senate Judiciary Chairman Patrick J. Leahy (D-Vt.) continue to argue that equalizing the penalties would be the fairest approach, but gaining Republican and law enforcement support proved difficult.

"The most important thing is to change the law," Durbin said in a telephone interview. "There's been a lot of injustice. . . . I gave a little, and they gave a little."

Officials say the crack sentences undermine public confidence in the criminal justice system because they tend to penalize minorities far more than whites.

President Obama and Vice President Biden pledged to reduce the cocaine sentencing inequity on the campaign trail, and Obama called one reluctant GOP senator in the past month to express his commitment to the issue, a Senate aide said.

Attorney General Eric H. Holder Jr. hailed the Senate Judiciary vote as a significant step toward achieving fairness in sentencing.

"There is no law enforcement or sentencing rationale for the current disparity between crack and cocaine powder offenses, and I have strongly supported eliminating it to ensure our sentencing laws are tough, predictable and fair," Holder said in a statement.

Prisoner advocacy groups and police associations expressed mixed reactions over the legislation but concluded it might be the only achievable resolution to the longstanding problem. Senate sponsors said Friday that the measure could be considered under unanimous consent over the next few weeks if it does not hit obstacles.

Julie Stewart, president of Families Against Mandatory Minimums, said she had advocated for 19 years for the elimination of the disparity and was "disappointed" with the Senate action. Still, Stewart said, about 3,000 people could benefit from the measure as it is written.

Kara Gotsch, director of advocacy for the Sentencing Project, which seeks sentencing reforms, said the Senate action "falls far short of what fairness and justice would require." Activists said they will press for retroactive application of the sentence reductions, which could ignite a battle with police groups.

Andrea Mournighan, director of governmental affairs for the National Association of Police Organizations, said her group had been wary of legislative proposals in the past because of concern about violence in communities. For the first time, NAPO threw its weight behind the compromise measure this week.

James Pasco, executive director at the Fraternal Order of Police, said he is assessing the bill. "Eighteen to 1: The best I can say is, it could have been worse."

In a statement, Sessions said the current sentences are "disproportionately severe," and a change would "achieve needed fairness without impeding our ability to combat drug violence."

Sen. Lindsey O. Graham (R-S.C.) said the proposal represents an attempt to resolve "negative unintended consequences" for African American men who were long subjected to unequal treatment.

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