Recently, the U.S. Supreme Court heard arguments about a case in which the judge refused to impose the notoriously high sentence required for crack cocaine, Kimbrough v. U.S. While the case doesn’t challenge the sentencing disparity directly, it calls attention to the statute that punishes crack cocaine with sentences 100 times greater than for powder cocaine, despite the fact that there is no difference in the chemical makeup of the two forms of cocaine.
In addition, new sentencing guidelines will go into effect Nov. 1 for people convicted of federal crack cocaine offenses. The U.S. Sentencing Commission has finally corrected the inconsistency between the federal guidelines and mandatory minimum sentences that resulted in people sentenced to more time in prison than required by the law.
The law mandates a 10-year minimum sentence for a drug dealer with only a candy bar-sized amount of crack. Yet, if the dealer were selling powder cocaine he would have to have a briefcase full of powder cocaine to receive that same 10-year sentence. The law is clearly not just.
While the Supreme Court weighs the justice of federal sentencing policy, our communities are struggling to halt the flood of cocaine that is poisoning so many lives in the United States. Clearly, our current drug policies aren’t working.
We are both conservative Republicans who are convinced that this country needs a more rational approach to apprehending and prosecuting those who traffic in cocaine. A bipartisan group of four senators who all served as state attorneys general — Republican Sens. Jeff Sessions of Alabama and John Cornyn of Texas, and Democratic Sens. Mark Pryor of Arkansas and Ken Salazar of Colorado — has introduced legislation in Congress to address the unfairness of the current 100-1 disparity in sentences between crack and powder cocaine.
This disparity was passed in 1986 and based largely on the assertion that crack cocaine was more dangerous than powder cocaine, that it was instantly addictive and that it caused violent behavior. Since then, copious scientific evidence and U.S. Sentencing Commission analysis have shown that these assertions, which were not supported by sound data, were exaggerated or even outright false. The disparity has resulted in a hugely disproportionate number of black Americans sentenced under this mandatory-minimum law. While the intent was not to single out one racial demographic over another, the impact of these laws amounted to discrimination.
As important as the sentencing disparity is, another important issue is the lack of focus on the big cocaine traffickers by the federal government. Local and state authorities have the ability to deal with users and mid-level dealers. But they don’t have the resources to stop the large and violent networks that move mega shipments of drugs into our borders and throughout the country.
Congress’ primary motivation for passing mandatory minimum laws was a desire to incarcerate high-level drug dealers for long periods of time. Unfortunately, the opposite proved true. The U.S. Sentencing Commission has reported that 73 percent of federal crack defendants have only low-level involvement in drug activity, such as street-level dealers, couriers or lookouts.
Federal authorities are squandering huge amounts of resources on small cogs in the cocaine distribution network: One-third of all federal cocaine cases involve an average of 52 grams, the weight of a candy bar. This is a terrible misuse of the time and talent of federal law enforcement and prosecutors. Plus, it has clogged the federal courts with cases that can easily be handled by the states.
If we are to stop the flood of cocaine coming into the country, federal resources should be focused on the networks that bring in boatloads of cocaine and on the people who shoot and kill the large and violent operators that the local and state authorities cannot effectively combat. This would benefit taxpayers and more effectively stop the flow of cocaine.
After almost 21 years, the 100-1 crack and powder cocaine sentencing disparity has resulted in federal resources being misdirected on small-time drug dealers and not on stopping the flow of drugs into the country. It is now time for Congress to fix this law in order to focus federal law enforcement resources on winning the war on drugs.
Former Rep. J.C. Watts is founding chairman of J.C. Watts Cos. Pat Nolan is vice president, Prison Fellowship Ministries.
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