a bird and a bottle


Taking the Easy Out on Drug Sentencing Disparities
May 16, 2007, 8:29 am
Filed under: civil rights, criminal justice, law, news, politics

drug war

Yesterday the U.S. Sentencing Commission released its 2007 cocaine report 2007 (PDF). The report – the fourth of its kind in recent years – aims to address the disparity between sentences for crimes involving powder cocaine and those involving crack. The 100-to-1 difference has resulted in harsh sentences for low-level crack users — and has decimated low income communities and communities of color. Wealthier, whiter communities, where cocaine is more popular, have gone mostly untouched.

In its report yesterday, the sentencing commission stopped far short of actually addressing this sentencing disparity. It made only three recommendations (and buried them in 200 pages of analysis). The ACLU summed up the report’s proposals:

· Increase the amount of crack cocaine required to trigger the five-year mandatory minimum sentence, as current law subjects low-level drug offenders to the same or harsher sentences as major dealers.

· Repeal the mandatory minimum penalty for simple crack cocaine possession.

· Reject proposals to lower the amount of powder cocaine required to trigger the five- and ten-year mandatory minimums, as the Commission finds “no evidence to justify such an increase.”

Ok. I’m with them on the first two. Increasing the level of crack required to trigger a harsh five year minimum sentence is an important step to reducing the impact of the misguided “War on Drugs” on low level dealers and – worse — people who possess for their own use. Repealing the mandatory minimum for possession is clearly ancillary to that. But it’s that third recommendation that really stings, and that reduces the positive impact of the other two. In the third bullet point, the commission rejects the idea of getting rid of the 100-to-1 disparity by saying that there’s no need to bring the level of powder cocaine needed to trigger a mandatory minimum sentence down to be more in line with that of crack cocaine.

Now, in a vacuum I agree with that third recommendation. I don’t think we should be punishing cocaine use more harshly. We should be punishing crack and cocaine use less harshly. But U.S. drug policy does not exist in a vacuum. By refusing to address the disparity here, the commission condones its continuation.

In fairness, not nearly all of the blame can be placed at the feet of the sentencing commission. This is the fourth time in twenty years that the commission has urged Congress to act to change drug sentencing laws. But Congress has remained inactive. Unsurprisingly. There’s some hope though: Recently, a bipartisan coalition has been pushing the Drug Sentencing Reform Act, which would reduce — but not equalize — the disparity. And there is a general push toward more humane prison policy from some conservative senators.

But by ignoring the crack-cocaine sentencing disparity — or at the very least, refusing to recognize its impact in its recommendations — the sentencing commission has enabled Congress’s inaction and allowed a racist policy to continue.

(also at Feministe)

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14 Comments so far
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“Increase the amount of crack cocaine required to trigger the five-year mandatory minimum sentence.”

I assume that they’re not recommending to raise it to the levels of cocaine, i.e. eliminate the disparity. If so, your analysis is spot on. As long as the disparity persists, there will be little pressure on Congress to engage in serious drug reform.

Comment by professorplum

Right. The disparity will persist. It might not be 100-to-1 but it’s unclear what we’ll be left with.

Comment by bean

Your objection to number three is basically Ronald Dworkin’s objection to “checkerboard statutes.” The idea is this: Imagine you think that X should be prohibted everywhere, but you can only get a political outcome of having X prohibited in a checkerboard with other areas where it isn’t. Pragmatically, it seems like getting half is better than getting none. But Dworkin and others object to the unprincipled unfairness of the checkerboard. So, even if you think powder cocaine punishments shouldn’t ideally be as high as they are or any higher, you’d rather keep the bad policy in the interest of fairness. Am I understanding correctly?

Comment by aeroman

[…] the disparity between sentences for crack cocaine and those for powder cocaine. As I have discussed — at length – the fact that crack possession is punished 100 times more harshly than […]

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