Fix Overdue in Sentencing Law

For the second time in two years, the U.S. Sentencing Commission has urged that penalties for trafficking in crack cocaine be brought more in line with those for powder cocaine. Congress and President Clinton should approve this recommendation but, regrettably, such a fair and sensible stance still looks like a longshot.

Since 1986, federal law has mandated a 100-1 disparity in the treatment of those convicted of trafficking in crack as compared with powder cocaine. A five-year minimum prison term is mandated for anyone found guilty of possessing five grams of crack, and 10 years to life for more than 10 grams. But for powder cocaine, a five-year term for an offender would be mandated only at the 500-gram level.

This extreme disparity was established because Congress wanted to signal its determination to end soaring drug use. Crack, cheaper and more prevalent on the streets than powder cocaine, seemed the crux of the problem.

But in practice, the commission report noted, “the current penalty structure results in a perception of unfairness and inconsistency.” For instance, if possession of cocaine is illegal regardless of the form it takes, the sentencing disparity signals that one form of cocaine is more illegal than the other. That sounds like legal nonsense. Moreover, studies show that the sentences for crack, the cheaper form of the drug, have been imposed most often on black and Latino defendants. And the fact that one in five federal prison cells is now occupied by small-time drug offenders hardly makes for the best use of scarce federal dollars.

The commission, created by Congress in 1985 to develop a more uniform sentencing policy for the federal courts, tried to eliminate the disparity in 1995, but Congress and the president blocked the action. On Tuesday, the commission recommended reducing that disparity somewhat, lowering the amount of powder cocaine that would trigger the mandatory five-year term and raising the five-year trigger for crack.

This change is a step--alas but a small one--in the right direction. Congressional leaders should take up proposal with an eye to fairness, and abandon past demagoguery about who is “soft on crime.” Common sense and prudent policy are the measures here, along with political courage.