When Congress passed the Anti-Drug Abuse Act of 1986, it wrongly included language that meted out a mandatory minimum sentence of five years for dealing 5 grams of crack cocaine, yet the same five-year mandatory minimum sentence for dealing 100 times that amount, or 500 grams, of powder cocaine. Thus the bill codified a racially unjust divide. The U.S. Sentencing Commission found that in 2000 some 84.7 percent of federal crack offenders were black, while only 5.6 percent were white.
Everyone in Washington knows that the law is unfair -- obscenely unfair. The U.S. Sentencing Commission has made four recommendations to curb the sentencing inequity. Alas, for the past two decades, Democrats and Republicans have cravenly set out to out-posture each other in toughness in the war on drugs. So Washington either voted against or ignored the Sentencing Commission's recommendations.
Sen. Joe Biden, D-Del., may be about to change the status quo. For the past couple of years, Washington's idea of reform has been to fiddle with the concept of reducing the 100-to-one crack-powder sentencing disparity to 20-to-one.
Last month, Biden made the brave leap of proposing a bill to eliminate the sentencing disparity completely -- instead of changing the law so it is unfair, but less so. As Biden wrote in a statement announcing his Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007, the law needs to be changed because "powder cocaine offenders who traffic 500 grams of powder (2,500-5,000 doses) receive the same five-year mandatory minimum sentence as crack cocaine offenders who posses just 5 grams of crack (10-50 doses)."
Biden's bill would raise the amount of crack cocaine so that 500 grams of either crack or powder cocaine would trigger the same mandatory minimum sentence.
Biden also included the Sentencing Commission recommendation to eliminate the mandatory minimum sentence for simple possession of 5 grams or more of crack, as crack is the only drug to mandate a prison sentence for possession alone. While supporters might argue that the possession penalty is tough on drugs, the Sentencing Commission pointed out how weak the crack possession penalty actually is: "an offender who simply possesses 5 grams of crack cocaine receives the same 5-year mandatory minimum penalty as a trafficker of other drugs."
The ACLU is supportive. A statement lauded Biden's bill as a "long-awaited fix to discriminatory federal drug sentencing."
But Eric Sterling of the Criminal Justice Policy Foundation is less enthusiastic. "Most of my friends are a little embarrassed that I'm not jumping up and down with them saying, 'This is what we've been working for.'"
While Sterling would like to see the 100-to-one discrepancy end, he believes that Washington needs to overhaul drug laws so that they concentrate on kingpins, not low-level offenders. "There shouldn't be any crack cases in federal court, as a general matter," Sterling argued, "because crack is a purely retail phenomenon. The trafficking is in powder cocaine."
The irony is that most Americans think that federal mandatory minimum sentences -- with extra harsh penalties for crack dealers -- are tough on drug lords, when in fact, the systems goes easy on kingpins.
Sterling directed me to a Sentencing Commission fact table on 2006 federal cocaine cases. The median crack offense involved 51 grams of the drug -- or 100 to 500 doses. The median powder cocaine offender weight was 6,000 grams, about the amount of cocaine that would fill a briefcase. Not exactly your major haul. Not only do these weights suggest that most federal offenders were not kingpins, but worse, the statistics also show that more than half of federal cocaine cases were crack cases -- dealing with as little as 2.3 grams. One-third of crack cases involved 25 grams or less.
Drug kingpins should love the status quo.
Passage of the Biden bill would present a welcome change in disparity-heavy drug laws. The goal should be laws with heavy consequences for drug-trade heavyweights, instead of hefty sentences for lightweights.