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November 17, 2006 - San Francisco Chronicle (CA)

Column: Fundamental Fairness Takes A Powder

By Debra J. Saunders

Return to Drug War News: Don't Miss Archive

IN WASHINGTON, it is easier to pass a bad bill than a good bill. Once that bad bill becomes law, then good luck trying to fix it. The science behind the bill may be discredited, its unfairness widely recognized and a judiciary commission could call for much-needed correction, yet over 20 years, no one has managed to correct a law that is oddly both draconian and ineffective.

I refer to the Anti-Drug Abuse Act of 1986. Two decades after Washington enacted the measure, including a provision that set a five-year mandatory-minimum sentence for possession of 5 grams of crack cocaine or 100 times that amount of powder cocaine, black urban users and street dealers do hard time for small quantities, while those who trade in upscale powder cocaine can trade 100 times more narcotic but serve the same sentence.

Eric Sterling helped write the 1986 law, but he now serves as president of the Criminal Justice Policy Foundation that is trying to return sanity to drug policies. Sterling testified Tuesday at the U.S. Sentencing Commission hearings on the sentencing disparity.

As Sterling noted over the phone, it makes no sense to mandate a 10-year mandatory-minimum sentence for those convicted of trading 50 grams or more of crack, an amount the size of a candy bar -- or 5,000 grams or more of powder cocaine, which would fill a briefcase. "When you look at this 50-gram candy bar, it is not the quantity that deserves a kingpin sentence of 10 years" or more. As Sterling sees it, the trigger for a mandatory minimum should be higher -- say 50 kilograms. "That gets us into the level where the Justice Department is going to focus on big dealers," who deserve hard time, he said.

Now for the bad science: When Congress passed the bill, star athlete Len Bias had just died of what was believed to be a crack overdose. Washington pols couldn't appear too tough on drugs. Stories reported on the sorry plight of "crack babies," who were severely damaged in the womb, as well as kids who became hooked on crack after one use.

Much of the scare was hype. As the Sentencing Commission reported in 2002, "The negative effects of prenatal crack cocaine are identical to the negative effects of prenatal powder cocaine exposure and are significantly less severe than previously believed. (They) are similar to those associated with prenatal tobacco exposure and less severe than the negative effects of prenatal alcohol exposure."

More: "The epidemic of crack use by youth never materialized to the extent feared." Crack cocaine produces the same physiological and psychotropic effects as powder cocaine, although powder cocaine is less addictive because usually it is snorted. Still, the difference "does not appear to warrant the 100-to-1 drug quantity ratio."

Who pays the most? Not drug kingpins. As the Sentencing Commission noted, two-thirds of federal crack offenders were "street level dealers." The sentencing disparity falls most harshly on African Americans. As the commission noted, in 2000, 84.7 percent of federal crack offenders were black, while just 5.6 percent were white.

That's not fair, and it is not smart. The American Civil Liberties Union issued a report last month that found "African Americans now serve virtually as much time in prison for a drug offense at 58.7 months as whites do for a violent offense at 61.7 months."

In 1995, the Sentencing Commission tried to equalize sentencing guidelines for crack and powder cocaine, while adding extra time for carrying weapons or bodily injury. Congress passed and President Bill Clinton signed legislation that killed the commission's effort.

In 1997, the Sentencing Commission recommended that the five-year trigger be raised to 125 grams to 375 grams of crack. Washington failed to act.

In 2002, the commission recommended raising the five-year prison sentence trigger to 25 grams of crack, the 10-year trigger to 250 grams and repealing the mandatory minimum for simple possession. Again from Washington, zip.

Julie Stewart, the president of Families Against Mandatory Minimums sees fresh hope in the incoming Democrat-led Congress. The ranking Democrat on the House Judiciary Committee, U.S. Rep. John Conyers of Michigan, has been highly critical of mandatory minimums. Ditto Senate Judiciary Committee biggie Patrick Leahy of Vermont.

Sterling noted that Democrats won't want to look soft on crime, and need support from Republicans such as Sen. Jeff Sessions of Alabama, a former U.S. attorney, who wrote a bill to narrow the disparity gap to 20-1.

It is a sorry day for any country when putting small-time offenders away for years -- while violent drug kingpins go free -- is considered tough on crime. If that's tough, it's stupid tough.

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