Last week by voice vote, the Senate unanimously approved a measure to reduce the infamous 100-1 disparity in federal mandatory minimum prison sentences for possession of crack versus powder cocaine. The new, improved disparity would be 18-1.
If the Fair Sentencing Act of 2009, authored by Sen. Dick Durbin, D-Ill., becomes law, there will be a five-year mandatory minimum prison term for 28 grams of crack cocaine -- instead of 5 grams today -- while the amount of powder cocaine that triggers five years would remain 500 grams.
There is no logical reason for the sentence disparity. Whether in crack or powder form, it's still cocaine. But about 4 in 5 federal crack offenders are black. Last year, Asa Hutchinson, who was head of the Drug Enforcement Administration under President George W. Bush, righteously testified that the "disparate racial impact" of the cocaine-powder disparity undermines "the integrity of our judicial system."
Some people no doubt consider the crack law to be tough on drug kingpins, but it's not. According to the U.S. Sentencing Commission in 2005, 55 percent of federal crack offenders were street-level dealers. Excessive sentences have had the unintended consequence of encouraging the federal prosecution of low-level offenders who in saner times would be handled by local authorities.
While the House Judiciary Committee passed a measure last year to completely eliminate the crack/powder disparity, the Durbin bill represents an amazing victory. According to Julie Stewart, president of Families Against Mandatory Minimums, if the measure passes, it will be the first time since 1970 that Congress will have voted to eliminate a mandatory minimum penalty.
This controversy should serve as an example as to what happens after Congress passes a bad bill. The disparity was embedded in the Anti-Drug Abuse Act in 1986 in a Beltway anti-drug frenzy. Over time, its ill effects have become evident. In 1995, the U.S. Sentencing Commission recommended that Congress rewrite the law to equalize the sentences. Nothing changed.
Families Against Mandatory Minimums began fighting the bill 15 years ago. Stewart has seen seven Congresses, 10 congressional hearings, three Sentencing Commission reports and 75,000 defendants sentenced. Lawmakers from both parties have recognized the fundamental unfairness of the law. Yet it has taken decades to win a floor vote to address the disparity, and then only part way.