Correcting the Crack Cocaine Sentencing Disparity

3 03 2008

The potential early release of those convicted of crack-cocaine charges due to new sentencing guidelines that retroactively reduce already unfair sentences has led to a quite a backlash.

Some crack Convicts Could Soon be Set Free” warns CNN.

Heritage Foundation: A Crack-Job on Jail Sentences” cries Fox News.

But before we get caught up in the “war on crime” hysteria we need to find out why the U.S. Sentencing Commission recommended new guidelines. Under the 1986 Anti-Drug Abuse Act of 1986, the mandatory minimum for 5 grams of crack cocaine is 5 years, for 50 grams of cocaine its 10 years in prison.

That same law mandates a 5 year minimum for 500 and a 10 year minimum for 500 grams of powder cocaine. That’s a 100 to 1 disparity.

As the Sentencing Project noted in its September 2007 report on the 25 year effort on the war on drugs:

African Americans serve almost as much time in federal prison for a drug offense (58.7 months) as whites do for a violent offense (61.7 months), largely due to racially disparate sentencing laws such as the 100-to-1 crack-powder cocaine disparity

In a nutshell, the 1986 law is fundamentally flawed on its face because of the outrageous disparity in sentencing, and in practice because of its disproportionate affect on African Americans in particular.

And lest there be any doubt as to whether or not retroactively revising the guidelines itself is a good idea, DC District Court Judge Reggie B. Walton, a George W. Bush appointee, explained exactly why its the right thing to do. In an interview with U.S. News and World Report a few days ago he said:

Q: The Justice Department disagrees with retroactivity. Do you think it’s a problem?
A: I don’t. The perception that’s being put out there is that just because people are eligible means they are going to be released, and that is just not going to be the case. Even though [offenders] are eligible, judges are obligated to assess whether they would be a danger to the community. And you obviously will look at what their past history is, what their situation was as far as the particular crimes they are serving time for, and what their institutional adjustments have been. And I trust that judges, if they perceive that the individual would pose a danger, then obviously that individual won’t receive the benefit.

There are many people…who are just languishing in prison who’ve been adequately punished who could come out and be a contributing member of society rather than us paying $25,000 to keep them locked up beyond the time when they need to be locked up.

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