Both of us are former Republican congressmen; one of us is the former head of the Drug Enforcement Administration; and neither of us has ever been accused of being "soft on crime." That is why some may find it surprising that we respectfully disagree with our attorney general with regard to federal sentencing guidelines on crack and powder cocaine.
Simple standards of fairness call for the attorney general to support the recommendations of the U.S. Sentencing Commission, which reduce the disparity of sentences and make the changes retroactive.
Attorney General Michael Mukasey recently implied that America's streets will be flooded with violent felons if the Sentencing Commission proceeds with its plans to retroactively apply amended sentencing guidelines to individuals convicted of using crack cocaine. In testimony last week before the House Judiciary Committee, Mr. Mukasey said, "Unless Congress acts by the March 3 deadline, nearly 1,600 convicted crack dealers, many of them violent gang members, will be eligible for immediate release into communities nationwide." This ignores reality and fairness.
Unfortunately, the attorney general failed to consider the process that is in place to protect the public. First, the federal courts will be required to review each case and determine whether the offender should be released. Individuals convicted of violent crimes will not have their sentences reduced, regardless of whether they are in prison for a crack-related offense. Second, we do recognize that some individuals convicted only of drug charges may have simply plea-bargained down their cases from more serious and violent crimes. However, anybody who may pose a threat to society should not be released; and anybody released will have served his mandatory-minimum sentence.
Congress created a federal criminal penalty structure for the possession and distribution of crack cocaine that is 100 times more severe than the penalty structure relating to powder cocaine. African Americans comprise more than 80 percent of federal crack cocaine offenders. That statistic does not make sense given that two-thirds of all users of crack are white or Hispanic. The disparity in the arrest, prosecution and treatment has led to inordinately harsh sentences disproportionately meted out to African American defendants that are far more severe than sentences for comparable offenses by white defendants. Indeed, the U.S. Sentencing Commission reported that revising this one sentencing rule would do more to reduce the sentencing gap between blacks and whites "than any other single policy change."
The truth is that for years our legal system has enforced an unfair approach to sentencing of federal crack cocaine offenders. The attorney general's approach will perpetuate this unfairness. As Judge Reggie Walton, who represents the Federal Judicial Conference, said, "I just don't see how it's fair that someone sentenced on October 30th gets a certain sentence when someone sentenced on November 1 gets another."
And it makes no sense that somebody arrested for a crack cocaine offense should receive a substantially longer prison term than somebody who is convicted of a powder cocaine offense. When disparities like this exist it offends the high principles of equal treatment under the law and fundamental fairness. The disparate racial impact of the sentencing rules undermines our nation's larger goal of instilling respect for the criminal justice system.
Congress should let stand the unanimous decision of the Sentencing Commission, which was made in December. But Congress must also act to change the federal crack cocaine statute in order to reduce this unfair disparity. A Senate Judiciary subcommittee is scheduled to hold a hearing today to consider reforming the crack cocaine law. We urge Congress to take this opportunity to revisit this injustice in federal law and pass legislation to remedy the unfairness.
Former Rep. J.C. Watts is chariman of J.C. Watts Cos. Former Rep. Asa Hutchinson, a former U.S. Attorney who served as director of the Drug Enforcement Administration under President Bush, is founding partner of the Hutchinson Group, LLC.