Paper Title - Topic: The Forces that Drive Crack-Cocaine Sentencing Reform

-- By CarinaWallance - 09 Feb 2008

Who gets punished and how severely is not the product of an objective standard and application of criminal justice. Rather, it is a function of subjective judgments and interests that often render the criminal justice system incapable of achieving its stated purpose. The disparity between powder-cocaine and crack-cocaine sentencing minimums has the effect of racial discrimination. Absent from the recent controversy over how to address crack-cocaine sentencing guidelines is a focus on the guidelines’ unjust and racially discriminatory effects. Instead, the development of crack-cocaine sentencing is driven by social forces – largely in the form of political actors and public fears.

Section I - Crack-cocaine sentencing: What the law does

Since their enactment over 20 years ago, federal crack-cocaine mandatory minimum sentencing laws have resulted in the discrimination of black offenders. While crack-cocaine and powder cocaine are chemically identical and cause similar physical reactions, the sentences for possession and intent to distribute are disturbingly different. Under federal law, a conviction for selling 5 grams of crack-cocaine is subject to the same five-year mandatory minimum sentence as a conviction for selling 500 grams of powder cocaine. Put another way, it takes 100 times more powder cocaine than crack-cocaine to trigger the same mandatory minimum penalty.

While drug use rates are similar among racial groups (two-thirds of crack cocaine users in the U.S. are white or Hispanic), four of every five crack-cocaine defendants are black. In contrast, most powder cocaine convictions involve whites or Hispanics (USSC, Report to Congress: Cocaine and Federal Sentencing Policy (May 2007) 3). Thus, even though the offense characteristics of crack-cocaine violations are comparable to those of powder cocaine violations, by virtue of the 100-1 ratio, black defendants receive vastly harsher sentences.

Section II - The Forces of "Progress"

On Tuesday, the Senate Democrats rejected Attorney General Michael Mukasey’s request to block the U.S. Sentencing Commission’s amendment that retroactively granted eligibility for reduced sentences to people already convicted of crack-cocaine offenses. While this is an important step, the reductions are only minor and follow over 10 years of repeated Congressional refusal to accede to the Commission’s requests to reduce the quantity disparity between the two forms of cocaine. The Commission’s proposed amendment only marginally reduces average crack-cocaine sentences by about one-quarter, resulting in sentences that are still 2 to 5 times longer than those triggered by the equivalent amount of powder cocaine.

Subsection II(a) Judicial Discretion

The current momentum towards sentencing reform stems in large part from an effort to preserve judicial discretion and to relieve the overburdened prison systems. Recent Supreme Court decisions, namely the crack-cocaine case Kimbrough v. United States, have restored federal judges to their central role in criminal sentencing by granting them the discretion to impose what they determine to be reasonable sentences, even when doing so departs with the sentencing guidelines. The central objective of these developments is to strip government prosecutors of the expansive power they maintain under mandatory sentencing policies and return the judge to his role as the distributor of justice. While affirmation of judicial discretion generally represents a move towards more equitable sentencing terms, it is the power-struggle between judges and prosecutors for the courtroom, and not the racially discriminatory effects of the sentencing guidelines that ultimately drive this process.

Subsection II(b) Prison Costs and Population

Similarly, the enactment of the Commission’s proposed amendment is in large part a response to the unmanageable costs and overcrowding of prisons that plague the American government. The prison population in the United States exceeds 2 million and continues to grow at one of the world’s fastest rates. Drug offenders account for over half of the federal prison population. Retroactive enactment of the Commission’s proposed amendment would make 19,500 crack cocaine offenders eligible for reduced sentences.

Section III - Opposition: Political Actors and Public Fear

On the other side, public fear and political officials in pursuit of their own agendas have impeded the development of substantive sentencing reform. Mukasey, speaking before the House Judiciary Committee last week, sought to capitalize on this fear. While apparently willing to permit reduction of federal prison terms for first time, nonviolent offenders, Mukasey uses inflammatory and misleading rhetoric by arguing that unless Congress blocks the amendment's retroactive application, "nearly 1,600 convicted crack dealers, many of them violent gang members, will be eligible for immediate release into communities nationwide."

Sixteen hundred crack-cocaine offenders will likely be released. However, by framing retroactive application as bringing "violent gang members" into the "communities," Mukasey employs alarmist rhetoric for his own political ends - namely, presenting himself as tough on crime and as protecting American communities from the effects of dangerous sentencing reform. Retroactive application of the amendment will impose the same prison terms that the adoption of the sentencing reform proposal will ultimately provide for. Indeed, Mukasey affirmed the Justice Department's pledges to consider changes to the powder and crack-cocaine sentencing disparities so long as the amendment's retroactive application to violent offenders is blocked. His position essentially suggests that while the retroactive reduction of the sentencing disparities will threaten communities today, future reduction of the disparities should be considered.

Conclusion

Ending the discriminatory effect of the mandatory minimums forms the distant backdrop of the development of crack-cocaine sentencing reform – one on which the proponents of reform can conveniently draw to advance their more immediate concerns. While recent changes do represent progress (although minimal), this progress is driven predominantly by social and political forces and not by a central concern for the discriminatory and disparate effects of the law. While understanding and utilizing the forces at play is important for enacting change, the social reformer also has a duty to insert genuine outrage at the unjust effects of the law into the process. Otherwise, the direction of legal reform remains at the whims of the social and political forces that currently guide it.