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March 6, 2008 -- San Francisco Chronicle (CA)

Column: Drug Laws' Absence Of Justice

By Debra J. Saunders

Return to Drug War News: Don't Miss Archive

When Attorney General Michael Mukasey was working to persuade Congress to stop a U.S. Sentencing Commission decision to allow federal judges to reduce the sentences of some 19,500 federal inmates serving time for crack cocaine offenses, he told the Fraternal Order of Police that federal crack offenders "are some of the most serious and violent offenders in the federal system."

Drug lords, rejoice. If your average crack offender represents the most dangerous convicts in the federal system, then a lot of small-time hoods and mid-level lackeys who don't pack heat are warming prison beds that should be meant for kingpins and their armed henchmen.

You've probably read about the disparity in federal mandatory minimum sentences before. The Anti-Drug Abuse Act of 1986 mandated a five-year minimum sentence for possession of five grams of crack cocaine or 500 grams of powdered cocaine. Civil rights groups have attacked the 100-1 volume disparity on racial grounds.

The U.S. Sentencing Commission found that more than 80 percent of crack offenders are black, while some 80 percent of powdered cocaine offenders are white.

Over the years, the sentencing commission has recommended narrowing the crack-powder gap. In May, the commission also called for a repeal of mandatory minimum sentences for simple possession of cocaine in either form, in the belief that federal law enforcement should concentrate on big-volume dealers. Congress has failed to act.

Last year the sentencing commission made a modest reduction in crack sentences and also allowed inmates to petition for reduced sentences starting March 3. Because Congress did not stop the change, more than 1,500 inmates are eligible to apply this year. The average sentence reduction, according to the commission, is expected to be 27 months.

If this rule change meant that violent career criminals would be running wild and free, I'd be leading the charge in protest. It's true, federal statistics show that 27 percent of powder and 43 percent of crack offenses in 2005 were broadly defined as involving weapons -- but that definition can apply to "any participant" of a deal in which someone else has a knife or a gun.

When the commission looked for crimes that involved injury, death, or threats of injury or death, it found that 90 percent of crack offenses "did not have violence associated with them." So if these are the most violent offenders, as Mukasey says, the feds are going after sissies.

What is more, the commission found in 2002 that that largest portion of crack offenders -- 55 percent -- were street-level dealers, while the largest group of powder cocaine offenders -- 33 percent -- were couriers and mules. I'm not saying they shouldn't go to prison, but that the feds should focus on putting dangerous criminals behind bars, not these losers.

Eric Sterling, who as a congressional staffer helped write the draconian 1986 drug-abuse law and later started the Criminal Justice Policy Foundation as penance, noted that the downside to critics focusing on the crack-powder disparity as a "civil rights complaint" is that they neglect the larger problem -- cocaine prosecutions too often target small-time criminals when "the feds should be going after high-level people, the multikilo multiton traffickers" -- the thugs who have private armies, launder barrels of money and generally endanger all of society.

As a former federal judge, Mukasey should have more faith in his erstwhile brethren. As Sterling noted, "Judges aren't going to just let dangerous people out" -- not when they can turn down petitions filed by the rare drug lord who comes before their bench.

"What passes for a drug kingpin in 99 percent of the cases is nothing more than a young man who can't even afford a lawyer when he's hauled into court," a frustrated U.S. District Court Judge Patrick Murphy of East St. Louis told "60 Minutes" in 2004. "I've seen very few drug kings."

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