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Cocaine sentences show excessive disparities

Published Oct. 4, 2005

Sentences for crack cocaine offenses have come under increased scrutiny as evidence mounts revealing their disparate racial impact. Those convicted of crack cocaine offenses, who are predominantly African-Americans, are sent to prison three times longer than those convicted of otherwise similar powder cocaine offenses. The reason for this is that under current law, a person must deal 100 times more powder cocaine than crack cocaine to get the same sentence.

In response to this disparity, Congress asked the U.S. Sentencing Commission to examine the issue and recommend a solution. The commission recommended that crack cocaine be treated the same as powder cocaine for sentencing purposes.

The House so far has moved only to reject the suggested changes. Rep. Bill McCollum, R-Fla., chairman of the House subcommittee on crime, recently co-sponsored legislation with Rep. Bart Stupak, D-Mich., that would keep the crack-powder sentencing ratio at 100:1.

Supporters argue that the slight pharmacological differences and marketing strategies of crack cocaine produce increased violence that deserves stiffer penalties than those for powder cocaine.

It is often true that violence is a greater problem with the average crack cocaine offense than with the average powder cocaine offense, but prison sentences should not be based on averages. They should be based on individual circumstances. Many crack offenders are not violent, and they should not automatically receive higher sentences because that element could be present.

Under commission guidelines, sentences are increased for aggravating factors such as violence, use of a weapon and employing a minor in the drug activity. Thus, the Sentencing Commission's guidelines target each individual's behavior.

Punishing crack dealers more severely because crack is perceived as more harmful is to sentence according to the socio-economic conditions in which an offender lives; crack cocaine is predominantly the drug of the poor. Besides, all crack cocaine is converted from powder cocaine, so those who deal large quantities of powder into the crack markets get lesser penalties than low-level crack dealers.

Crack cocaine is a significant problem only in communities that are already destabilized, and sending crack cocaine dealers to prison for exorbitant lengths of time as scapegoats will not solve the problem. According to the Federal Judicial Center, the especially severe crack sentences simply do not reduce the amount of crack available. Instead, it seems progress made against the crack trade is due to enforcement and community involvement.

Some prosecutors argue that they need the severe crack cocaine sentences so that they can induce defendants to provide information about other offenders. But powder cocaine sentences are already severe, and there is no evidence that stiffer sentences for crack provide better leverage.

Current crack sentencing laws do succeed in squandering valuable prison resources on low-level and peripheral offenders. Someone only indirectly involved in a single crack cocaine deal may face more than 10 years in prison _ much longer than many violent criminals who commit rape, assault, manslaughter, burglary and sometimes murder. The severe sentencing commits taxpayers to nearly $600-million a year in additional prison expenses, and it warehouses thousands of African-Americans.

According to the Sentencing Commission, 90 percent of federal crack defendants are black, even though more whites use crack. Because crack users are punished more severely, convicted blacks overall spend on average 30 percent longer in prison than whites. Since Congress demanded that the commission "assure that the (sentencing) guidelines . . . are entirely neutral as to the race . . . of offenders," it would seem strange, indeed contradictory, for Congress now to block the commission's efforts to accomplish this goal.

Congress should keep in mind that the current excessive crack sentences are ineffectual, wasteful of valuable resources, and racially disparate. It should take the advice of the experts _ the U.S. Sentencing Commission _ and treat crack cocaine as powder cocaine for sentencing purposes.

Ari Armstrong is a research associate with Families Against Mandatory Minimums, a nonprofit, public charity.

Special to the Washington Post