Pubdate: Thu, 23 Nov 2006
Source: Shepherd Express (Milwaukee, WI)
Contact:  2006 Alternative Publications Inc.
Author: Eric E. Sterling


We Made Some Terrible Mistakes by Eric E. Sterling November 23,

One of our most infamous contemporary laws is the 100-to-1 difference 
in sentencing between crack cocaine and powder cocaine. Under federal 
drug laws, prison sentences are usually tied to the quantity of drugs 
the defendant trafficked. For example, selling 5,000 grams of powder 
cocaine (about a briefcase full) gets a mandatory 10-year prison 
sentence, but so does selling only 50 grams of crack cocaine (the 
weight of a candy bar).

Working for the House Judiciary Committee in 1986, I wrote the House 
bill that was the basis for that law. We made some terrible mistakes.

Those mistakes, aggravated by the Justice Department's misuse of the 
penalties, have been a disaster. Conventional wisdom is that the 
100-to-1 ratio needs to be repealed. But that's an inadequate fix.

Today, the U.S. Sentencing Commission-the independent agency that 
gives sentencing guidelines to federal judges and advises 
Congress-will hold hearings on this issue. If logic prevails, in the 
next Congress we may finally see an end to one of the most unjust 
laws passed in recent memory. And that might correct the biggest 
mistake of my professional life.

We still cling to 20-year-old ideas that crack is somehow uniquely 
harmful: It is instantly addictive; it makes you especially violent; 
it causes women to abandon their babies; the babies of crack users 
will be basket cases. None of these are true.

Also, because crack is no longer a big news story, people mistakenly 
believe our anti-cocaine policy has worked. Not so. There is no 
scarcity of cocaine. Since 1986, the price of cocaine has fallen and 
the quality is better. Cocaine deaths have increased. The number of 
crack users is basically unchanged.

The Myths of Crack and Cocaine

Drug sentences are on the national agenda again because civil-rights 
supporters are justifiably outraged that almost all federal crack 
prosecutions involve people of color. And indeed, for years no whites 
were prosecuted for crack offenses in many federal courts, including 
those in Los Angeles, Chicago, Miami, Denver, Dallas or Boston.

Because of that, the myth developed that Congress intended to punish 
blacks-believed to be the crack users-with long sentences and let the 
white powder cocaine sniffers of Hollywood and Wall Street get away 
with light sentences. But that's not the case. Congress was trying to 
remedy a problem it believed afflicted the black community.

A second myth is that Congress chose a 100-to-1 ratio because it 
determined that crack was 100 times worse than powder cocaine. But 
the weights chosen (5 and 50 grams, versus 500 and 5,000 grams) 
weren't based on a comparison of the two drugs. Congress had no clear 
understanding of drug trafficking-or the metric system-and thought 
those weights indicated significant trafficking activity. In fact, 
tons (millions of grams) of cocaine are shipped to the United States 
by the leaders, organizers and financiers of the international drug trade.

The law was flawed, but the Justice Department still could have used 
it to target high-level traffickers. But research from the U.S. 
Sentencing Commission shows that three-quarters of the federal 
cocaine defendants-powder and crack-are just neighborhood dealers or couriers.

Congress should do what it tried to do in 1986-make the Justice 
Department focus exclusively on high-level cases because state and 
local law enforcement cannot. There are three elements to fix the 
problem: raise the quantity triggers for all drugs to realistic 
levels for high-level traffickers, such as 50 or 100 kilos of 
cocaine, and end the crack/powder imbalance; require the attorney 
general to approve prosecution of any case involving less than 50 
kilos of cocaine; analyze federal drug cases district by district to 
identify agents and prosecutors who waste their time and our money. 
If only high-level dealers were being prosecuted by the feds, no one 
would have cause to complain about the race of the defendants.

A promising sign is that a few months ago, Sen. Jeff Sessions 
(R-Ala.), a former U.S. attorney, introduced legislation to address 
the problem. Action on his bill is unlikely before Congress adjourns, 
but it had bipartisan support-a good sign that a political fix is viable.

The 20-year-old mistake of tiny quantity triggers has distracted both 
the Justice Department from the proper cases and reformers from the proper fix.

For a generation, anti-drug policy has been built on factual mistakes 
and tough-sounding rhetoric.

The American people simply need an effective policy. Truly, that 
would be tough enough.

Eric E. Sterling, president of the nonprofit Criminal Justice Policy 
Foundation in Silver Spring, Md., was counsel to the House Judiciary 
Committee, principally responsible for anti-drug legislation.
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