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December 17, 2007 - New York Times (NY)

Column: Whittling Away, But Leaving A Gap

By Adam Liptak

Return to Drug War News: Don't Miss Archive

There was an avalanche of sentencing news last week. The Supreme Court gave trial judges more power to show mercy, the United States Sentencing Commission gave almost 20,000 prisoners doing time on crack cocaine charges a good shot at early release, and even President Bush commuted a crack sentence.

The net effect: tinkering.

The United States justice system remains, by international standards at least, exceptionally punitive. And nothing that happened last week will change that.

Even the sentencing commission's striking move on Tuesday, meant to address the wildly disproportionate punishments for crack and powder cocaine, will have only a minor impact. Unless Congress acts, many thousands of defendants will continue to face vastly different sentences for possessing and selling different types of the same thing.

Crack and powder cocaine are two forms of the same drug. But, under the old guidelines, a drug dealer selling crack cocaine was subject to the same sentence as one selling 100 times as much powder.

Street dealers selling crack got much longer sentences than the wholesalers who sold them the powder they used to make it. Eighty-five percent of people convicted of crack offenses are black.

After the recent amendments to the guidelines, the ratios vary from 80 to 1 to 25 to 1, and the average sentence for crack offenses dropped by about 15 months, to a little less than 9 years. On Tuesday, the commission made the changes retroactive. The final sentencing decisions will be up to federal judges, newly empowered to do as they wish.

But only to a point. Neither the commission nor judges can do anything about the mandatory minimum sentences that retain the same disparities. The sentences are required by a 1986 law, enacted when crack was new, terrifying and seemingly unstoppable. Only Congress can change it.

Paul G. Cassell, an authority on sentencing who was until recently a federal trial judge, said the focus on the sentencing guidelines was in some ways a distraction.

"The mandatory minimums are so draconian," he said. "I'm a believer in a good guidelines system. And I would much rather trade a much tougher guidelines system and get rid of mandatory minimums."

The mandatory minimum sentence for crimes involving five grams of crack -- a little more than a sugar packet -- remains five years. For powder, the five-year mandatory sentence does not kick in until 500 grams, or more than a pound.

Fifty grams of crack equals a guaranteed 10 years. It takes five kilograms of powder to mandate the same sentence. Five kilos is a lot of cocaine.

Mere possession of a relatively small quantity of crack means a five-year sentence. Possessing five grams of powder cocaine usually results in probation, said Marc Mauer, the executive director of the Sentencing Project, a research and advocacy group.

Indeed, the maximum sentence for simple possession of any drug but crack, including powder cocaine and heroin, is one year.

There are several bills kicking around Congress meant to harmonize cocaine sentencing laws. But, perhaps perversely, the Supreme Court's decisions last Monday may make Congressional action less likely. Letting judges have too much discretion does not sit well with some legislators, and that discretion can be controlled through mandatory minimums.

"It's going to be more difficult to make the case for repeal of mandatory minimums across the board when judges are viewed as having too much discretion," said Professor Cassell, who now teaches law at the University of Utah and works on behalf of crime victims.

It is hardly clear, moreover, that judges are itching to employ their new discretion even in the context of the guidelines. Many judges say that sentencing is the hardest part of the job. It wears on the soul.

"Somehow I felt it was wrong for one human being to have that much power over another," Judge Alex Kozinski, now the chief judge of the United States Court of Appeals for the Ninth Circuit, in San Francisco, wrote of the days before the guidelines were in force and judges had vast discretion. Writing in The Federal Sentencing Reporter in 1999, he said the experience was so traumatic as to feel like "almost an act of sacrilege."

The guidelines were a sort of relief, Judge Kozinski said. They established relatively narrow ranges and "presumably take into account all those factors I don't feel competent to weigh: punishment, deterrence, rehabilitation, harm to society, contrition - -- they're all engineered into the machine; all I have to do is wind the key."

Last week's most curious sentencing decision came from Mr. Bush, who commuted the sentence of Michael D. Short a few hours after the Supreme Court ruled. It was only the fifth commutation of his presidency, and the first involving crack cocaine.

Mr. Short had served 15 years for aiding a crack cocaine ring. Mr. Bush, without explanation, ordered him released in February, a little more than a year before he was to get out anyway.

Margaret Colgate Love, the pardon lawyer at the Justice Department for most of the 1990s, seemed eager to read a lot into the decision.

"The president's personal intervention to cut short Short's prison term sends a clear signal that he, too, is concerned about the excessive length of crack sentences," Ms. Love said. The decision, she said, "puts him on the side of the courts and the angels, and in opposition to Congress and his own Justice Department."

On the other hand, she conceded, maybe it was just a random act of kindness.

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