December 20, 2009
Sentencing Disparty Proves Hard to Crack
By Keith Perine, CQ Staff
Earlier this year, it looked like Congress was going to make good on President Obama’s campaign promise to eliminate the wide disparity in federal criminal sentences for those selling crack and powder cocaine. But the effort has since bogged down because Senate Republicans won’t go along with completely eliminating the disparity.
Under a 1986 law that Congress hurriedly passed in response to a perceived epidemic of crack cocaine use, a drug-trafficking offense must involve 100 times as much powder cocaine as crack to trigger the same mandatory prison sentence. For example, distribution of five grams of crack warrants a five-year prison term, but distributors of powder cocaine don’t face that punishment unless they’re caught with at least 500 grams. At the time Congress passed the law, crack cocaine was considered more addictive and dangerous. Opponents of the sentencing structure have been trying for several years to change it.
The lower sentencing trigger for crack has had a disproportionate impact on African-Americans. According to a 2007 report by the U.S. Sentencing Commission, 82 percent of crack cocaine federal offenders in 2006 were black.
But proponents of the change have not been able to round up enough votes to completely eliminate the disparity. Senate Majority Whip Richard J. Durbin , an Illinois Democrat, has been wooing several Republicans on legislation that would do so. So far, though, Republicans engaged on the issue say they prefer reducing, but not eliminating, the disparity.
“Crack cocaine is a more dangerous drug,” said Sen. Jeff Sessions of Alabama, a former federal prosecutor and the top Republican on the Judiciary Committee.
On Oct. 15, Durbin introduced a bill that would eliminate the disparity, but for now it doesn’t appear likely to pick up GOP support unless he modifies his measure to preserve some difference in sentencing for crack and powder, such as a 10:1 or 20:1 ratio. And like so many other bills in the 111th Congress, the legislation is going to need some Republican backing in order to succeed, at least in the Senate.
Jasmine Tyler, deputy director of national affairs at the Drug Policy Alliance Network, said that simply narrowing the disparity “would be akin to only desegregating a fraction of schools.”
The House Judiciary Committee in July approved a bill by Virginia Democrat Robert C. Scott that would eliminate the disparity, but it was on a party-line vote. The bill has 52 cosponsors — and only one of them, Ron Paul of Texas, is a Republican. Scott said that House Republicans “appear to be solidly for the status quo, or at least not supporting the bill.”
Last week, Scott was still working on lining up a simple majority for his measure in the House, for a possible floor vote next month.
Meanwhile, Justice Department officials are working on a study of federal sentencing policy, including cocaine sentences, that could lend momentum to the Democrats. But as of last week, the study wasn’t finished.