Legal Affairs – It’s Time to Stop Packing Prisons With Two-Bit Crack Users

National Journal

Nobody could call Sen. Jeff Sessions soft on crime. The Alabama Republican is a passionate drug warrior. He won a Justice Department award in 1991, when he was the U.S. attorney in Mobile, for "significant achievement in the war against drug trafficking." Sessions says, "They could put that on my tombstone, and I’d be satisfied." He supports severe mandatory minimum sentences for truly dangerous drug dealers.

So people should take notice when Sessions says that the penalties for crack cocaine have proved to be too severe and "we ought to change them." He is especially critical of a provision mandating the same five-year minimum prison term for possessing (or for selling) a measly 5 grams of crack-"the weight of one nickel," Sessions notes in an interview-as for selling 500 grams of powder cocaine. "The 100-to-1 disparity between crack cocaine and powder cocaine, which falls hardest on African-Americans [who constitute more than 90 percent of crack users], is simply unjust," Sessions asserted in December, while proposing a bill to decrease the penalties for nonviolent, low-level crack defendants. He would also require more prison time for "the worst and most violent drug offenders."

Nobody could plausibly call John J. DiIulio Jr. soft on crime, either. The University of Pennsylvania criminologist is a self-described "crime-control conservative" who wants to "incarcerate the really bad guys." He was congressional conservatives’ favorite expert advocate of tougher prison sentences years before he spent seven months in 2001 as head of President Bush’s faith-based initiative office. But DiIulio had come to see the unfairness and ineffectiveness of the penalties for crack (and other drugs) by 1999, when he wrote, "The nation has `maxed out’ on the public safety value of incarceration," and "there is a conservative crime-control case to be made for repealing mandatory-minimum drug laws now." Such a repeal would move us a healthy notch back toward letting judges do what they do best: fit the penalty to the crime and the individual criminal.

But Sessions, his co-sponsor Orrin G. Hatch, R-Utah, and DiIulio are apparently not tough enough for the Bush Justice Department, which is opposing any change in the crack penalties. It prefers to perpetuate a regime that has packed federal prisons-at an annual cost to taxpayers of more than $20,000 per inmate-with thousands of nonviolent, relatively harmless bit players in small-time crack deals. This puts the administration out of step not only with Sessions, Hatch, and Diulio, but also with most conservative as well as liberal federal judges, virtually all serious scholars (including conservative crime-control guru James Q. Wilson), and the U.S. Sentencing Commission, which is expected to recommend lower crack penalties in a report due to Congress on May 15.

The Justice Department is also at odds with Bush himself, who said in January 2001, "Long minimum sentences for the first-time users may not be the best way to occupy jail space and/or heal people from their disease," and "I don’t believe we ought to be discriminatory" by punishing crack offenders more severely than powder cocaine offenders.

What explains the administration’s change of heart? It’s not entirely clear. But Attorney General John D. Ashcroft was once one of the Senate’s most merciless proponents of harsh mandatory sentences, not only for crack but also for a wide range of other drug crimes. In 1998, he helped to dramatically hike the already-severe penalties for methamphetamines. These penalties apply not only to career criminals but also to folks such as 40-year-old Shellie Langmade of Minnesota. For helping her ex-husband, her sister, and her sister’s boyfriend make methamphetamine for their own use and for sale to a few friends, she was given a 10-year mandatory sentence-one denounced as "unconscionable and patently unjust" by the U.S. district judge in the case.

Meanwhile, the Justice Department is urging the Supreme Court to uphold California’s draconian "Three Strikes" law by ratifying a heroin addict’s sentence of at least 50 years to life-more than most murderers get-for shoplifting $153.54 worth of videotapes from two Kmart stores. The statute subjected the man to what a federal appeals court called this "cruel and unusual punishment" because he had been convicted in 1982 of two nonviolent home burglaries and later of carrying a small amount of marijuana. The Court will hear the Justice Department’s appeal this autumn.

Under the current federal sentencing provisions, defendants who possess, sell, or help to sell 5 grams of crack cocaine receive prison terms averaging 5.4 times as long as those who sell 5 grams of powder cocaine, according to a recent Justice Department study. In cases in which the defendants have little or no criminal history, crack sentences for five grams average 8.3 times as long as powder sentences.

The five-years-for-five-grams provision applies not only to dealers but also to mere users of crack-many of whom pose no more danger to society than, say, President Bush’s niece Noelle, daughter of Florida Gov. Jeb Bush. She was arrested on January 29 for the felony offense of trying to use a false prescription to buy the anti-anxiety drug Xanax. She was sent not to prison but to a residential drug treatment program. This was appropriate. It would be barbaric to give a substantial prison term to a mere addict such as Noelle. It is no less barbaric to lock up for five years countless mere addicts whose drug is crack. Most are no more violent than prescription drug abusers. But crack users seem to be too poor and politically voiceless to get any breaks from "compassionate conservatives."

The Justice Department argues that the crack penalties are just right and that, if anything, the powder cocaine penalties should be increased. "Lowering crack penalties now would simply send the wrong message-that we care less about the people and the communities victimized by crack" than about crack dealers, Deputy Attorney General Larry Thompson told the Sentencing Commission on March 19. "Crack cocaine is associated with much greater dangers than powder," he added, because it is more psychologically addictive, cheaper, more accessible to poor people, and more "associated with violent crime."

This was at best a considerable exaggeration. Crack is, after all, made from powder cocaine. Crack smoking rarely if ever induces violent behavior, expert studies have found; the public perception that it causes more violence than other forms of drug abuse comes from the bloody wars among gangs vying to control the emerging crack markets, which were largely a phenomenon of the 1980s. The clamor over unique harms to "crack babies" proved to be a myth: Crack taken by pregnant women causes less harm to their babies than alcohol or tobacco, a leading medical expert told the Sentencing Commission this year. While poor crack smokers find it harder than rich cocaine snorters to support their habits without resorting to crime, many experts see the physical impact of smoking crack as no more severe than that of snorting powder.

All this explains why the expert Sentencing Commission, after a comprehensive study, recommended in 1995 that Congress eliminate the disparity between crack and powder cocaine that it had created in 1988 and greatly reduce the crack penalties. But that report was shot down by then-Attorney General Janet Reno even before Congress trashed it. Under orders from the Clinton White House, Reno took the politically cowardly approach to drug sentencing throughout her tenure by opposing almost all proposals to make it more civilized. But even Reno finally admitted that the crack penalties were excessive. Ashcroft won’t even do that.

Sens. Sessions and Hatch would not eliminate the crack-powder disparity. But they would quadruple the amount of crack that triggers a five-year mandatory minimum sentence from five to 20 grams, and the amount that triggers a 10-year mandatory sentence from 50 to 200 grams. (They would also-in what most experts see as a move in the wrong direction-increase some powder cocaine penalties.)

It is telling that a drug warrior as determined as Sessions now says that the current crack penalties often fall upon nonviolent, minor accomplices "who play only a minimal role in a drug-trafficking offense, such as a girlfriend or child of a drug dealer who receives little compensation." And that these penalties have largely failed to protect minority neighborhoods or stop crack from spreading across the country. And that recidivism rates for drug offenders are much lower than for violent criminals. And that: "Since crack is found to a high degree in the African-American community, [the severity of crack sentencing] has created an impression of bias. That can be debated, but if you can’t justify the sentences on crack on the merits, and if in fact they are out of step with other sentences, then they ought to be fixed-and promptly."

Congress should listen to Sessions, to the judges, to the experts, and to the Sentencing Commission. And it should give the politicians at the Justice Department the respect they deserve.