Attorney General "Ignoring Reality" of Draconian Crack Laws

If you're planning a children's party or some other event for which you need a magician, consider U.S. Attorney General Michael Mukasey. He's a master of sleight-of-hand tricks. Under fire now because of the Department of Justice's position on "waterboarding," Mukasey has launched a national campaign to change the subject.

Perhaps you've seen his handiwork in the media: "The U.S. Sentencing Commission is letting violent criminals out of prison!" "20,000 crack dealers to be released into your neighborhood!!" "And they're all black!!!" That's the story playing out in newspapers across the country.

The New York Times calls it "distortion". Former head of the Drug Enforcement Administration, Asa Hutchinson, says Attorney General Mukasey "ignores reality," and Hutchinson's about as pro-drug-war as it gets.

The truth is the Sentencing Commission reduced prison sentences for certain crack offenses, but the reductions are small and do not apply to anyone convicted of a violent offense. Retroactivity will be staggered over several decades, and the largest one-year release (possibly 1,600 people this year) is a drop in the bucket compared to the 650,000 people released from jail or prison on average every year. Federal judges will also retain the power to deny sentencing reductions to people who pose a risk to society.

Moreover, the Sentencing Commission was just doing its part to reduce the federal crack/powder cocaine sentencing disparity, which punishes crack cocaine offenses 100 times more severely than powder cocaine offenses, despite the fact that they're two forms of the same drug. This disparity has disproportionately devastated black communities and undermined public safety by encouraging federal law enforcement agencies to target low-level drug law violators instead of major crime syndicates.

While it takes just five grams of crack cocaine (about several sugar packets worth) to receive a five-year federal mandatory minimum sentence, it takes 500 grams of powder cocaine to receive the same sentence. 50 grams of crack cocaine triggers a ten-year sentence, but it takes 5,000 grams of powder cocaine to receive as much jail time.

Even though two-thirds of crack cocaine users are white, more than 80% of those convicted in federal court for crack cocaine offenses are African American. Moreover, two-thirds of those convicted have only a low-level involvement in the drug trade. Less than 2% of federal crack defendants are high-level suppliers of cocaine.

Three reform bills have been introduced in the U.S. Senate. Two of the bills, introduced by Sen. Jeff Sessions (R-AL) and Sen. Orrin Hatch (R-UT), reduce the disparity but do not eliminate it. The third bill, introduced by Sen. Joe Biden (D-DE), would completely eliminate the disparity. In the U.S. House, three good bills have been introduced to completely eliminate the disparity. One by Rep. Charles Rangel (D-NY), one by Rep. Bobby Scott (D-VA), and one by Rep. Sheila Jackson-Lee (D-TX) and Rep. Christopher Shays (R-CT).

Attorney General Mukasey has indicated he might support reducing the disparity, but only if Congress scales back the recent sentencing reductions. Members of Congress should say "no deal". Congress shouldn't interfere with the scientific, non-partisan Sentencing Commission process it established. Moreover, thousands of families are expecting their loved ones to be home for Christmas and it would be outright cruel for Congress to cancel those reunions. Members of Congress should move forward with reform efforts with our without Mukasey's support, and they should think big.

Some have suggested reducing the 100-to-1 disparity to 20-to-1 or 10-to-1, but that would be like amending the Constitution's three-fifths clause to make African Americans fourth-fifths citizens. Or desegregating 60% of public establishments instead of all of them. Policymakers should eliminate discrimination not just reduce it.

Others have suggested closing the gap by lowering the threshold amounts of powder cocaine it takes to trigger mandatory minimums, but penalties for powder cocaine are already too harsh. Lowering powder thresholds would encourage the Justice Department to target low-level offenders instead of major traffickers. Expanding the reach of cocaine mandatory minimums would also increase racial disparities for Hispanics -- an unacceptable trade-off.

With these principles in hand Congress should ignore Attorney General Mukasey's parlor games and move legislation already. The Senate held hearings on the crack/powder disparity a few weeks ago. The House is holding hearings this tomorrow. It's time to eliminate this disparity for once and for all.

Bill Piper is director of national affairs for the Drug Policy Alliance. www.drugpolicy.org