Pubdate: Fri, 02 Nov 2007
Source: Los Angeles Times (CA)
Copyright: 2007 Los Angeles Times
Contact:  http://www.latimes.com/news/printedition/front/
Details: http://www.mapinc.org/media/248
Author: Harlan Protass
Note: Harlan Protass is a criminal defense lawyer in New York and an 
adjunct professor at the Benjamin N. Cardozo School of Law, where he 
teaches sentencing law.
Cited: US Sentencing Commission http://www.ussc.gov
Bookmark: http://www.mapinc.org/find?244 (Sentencing - United States)
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)
Bookmark: http://www.mapinc.org/topic/crack+cocaine
Bookmark: http://www.mapinc.org/coke.htm (Cocaine)

REVISIT CRACK SENTENCES

Congress Nixed Outrageous Prison Terms for Crack Offenders, but the 
Decision Should Be Applied Retroactively.

For years, judges, academics, defense lawyers and even the U.S. 
Sentencing Commission -- the federal agency charged with 
responsibility for developing fair sentencing guidelines -- have 
condemned as unfair and unfounded the laws passed by Congress in the 
late 1980s that punish crack cocaine offenses much more severely than 
crimes involving powder cocaine. Average crack sentences have been 
about 10 years; powder cocaine sentences, seven years. Most 
notoriously, the laws wallop those who deal in as little as 5 grams 
of crack with the same five-year mandatory minimum prison term as 
those caught dealing 500 grams of powder cocaine. Lawmakers have 
stubbornly refused to close this 100-1 ratio.

This week, Congress finally tacitly conceded that crack-related 
penalties are too harsh. On Thursday, lawmakers let pass into law new 
guidelines proposed by the Sentencing Commission that will cut crack 
prison terms by an average of just over two years, with the amount of 
narcotics involved still playing the determining factor in the length 
of sentences.

Now the commission needs to finish the job. On Nov. 13, it will hold 
a public hearing to consider whether the new scheme should be applied 
retroactively -- a move that could potentially reduce the sentences 
of nearly 20,000 men and women currently incarcerated for crimes 
involving crack. Backed by Congress' silent support, retroactive 
application is the right thing to do for the following reasons:

First, myths about crack, on which the 1980s laws were based, have 
been debunked. When those laws were introduced, Congress believed 
that crack was instantly addicting. Lawmakers feared that a 
generation of "crack babies" would plague the nation for years to 
come and believed there was a direct link between crack use and the 
commission of violent crimes.

It turns out that lawmakers were wrong. Relying on a finding detailed 
in the Journal of the American Medical Assn., the Sentencing 
Commission recently reported to Congress that crack is 
pharmacologically indistinguishable from, and produces harms no more 
severe than, powder cocaine, even to the unborn. The commission's 
research also showed that crack's use never reached the epidemic 
proportions that so many expected and that its consumption bears no 
higher correlation to violent crime than does that of other drugs.

What's more, the laws' objective of targeting high-level drug 
traffickers largely failed. The majority of crack offenders doing 
time today were street dealers, couriers and lookouts.

It only makes sense that crack offenders locked up for long stretches 
over the last 20 years because of laws based on false premises should 
have the opportunity to pursue the benefits of this week's 
long-overdue remedy. What's appropriate for a crack offender tomorrow 
is appropriate for yesterday's offender as well.

Second, the 1980s' crack laws disproportionately affect minorities. 
About 80% of the 25,000 federal defendants jailed for crack offenses 
during the last five years have been black. This has created the 
perception that federal drug laws intentionally discriminate against 
minorities. If the new sentencing scheme is not applied 
retroactively, this perception will be perpetuated, further eroding 
confidence in the judicial system and respect for the law.

Third, Congress, in establishing the Sentencing Commission and 
enacting federal sentencing guidelines in 1987, specifically sought 
to eliminate incongruent penalties imposed on similarly situated 
defendants. If the commission does not apply the new crack penalty 
structure to those convicted before Nov. 1, it will undermine its own 
cause. Moreover, retroactive application is consistent with past 
modifications to other drug penalties, such as those for LSD, 
marijuana and oxycodone.

Finally, retroactive application would place no extraordinary burden 
on the courts. The primary fact necessary to recalculate prison time 
- -- the amount of crack involved -- already would have been determined 
in connection with offenders' original cases. Thus, while the courts 
likely would be flooded with requests for changed sentences, they 
wouldn't have to hold new hearings. Most motions could be dealt with 
on paper. Experience with other recent changes to federal sentencing 
laws has shown that the system is capable of revisiting many 
thousands of cases when justice so requires.

Opportunities to neatly turn back time on social injustices are rare. 
The new crack sentencing scheme presents one such chance. The 
Sentencing Commission should take advantage of this opening. To do 
otherwise is to compound the mistakes made when Congress first 
introduced harsh penalties for crack offenses.
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MAP posted-by: Richard Lake