A Series of Misfires in the War on Drugs : Sentencing mandates penalize minorities, anger jurists, jam prisons

Perhaps the war on drugs can claim some victories. Some data suggests that violent street crime is down, even if a specific link to drug prosecutions is uncertain. The focus on drug crime has given rise to a widespread public intolerance toward even recreational drug use. But the drug war has also claimed casualties: judicial discretion and the qualities of fairness and proportionality that inextricably flow from that discretion.

In 1984, frustrated with mounting drug use and drug-related crime, Congress passed the Sentencing Reform Act, aimed at reducing the disparity in federal sentences for the same crime from one judge to another and stiffening penalties for certain offenses, including drug possession and sale. The prison terms Congress set were high, even for a first-time, nonviolent offense, and users of crack cocaine were particularly targeted. Conviction for possession of even 5 grams of crack draws a mandatory five-year prison term, 10 years for 50 grams. These so-called mandatory minimum terms contrast to the federal mandatory minimums for possession of cocaine in powder form: five years for 500 grams, 10 years for 5 kilos.

This 100-1 ratio is rooted in the reported use patterns of the two forms of cocaine. Crack is cheap but addictive and, prosecutors say, more prevalent in poor neighborhoods. A higher propensity to violence has been associated with crack users and dealers than with users of powder cocaine. Congress hoped that by coming down hardest on crack users, it could reduce not just drug use but violent crime.

But the 1984 act has had unintended consequences. The harsh and inflexible prison terms for first-time users, intended to “send a message” about the perils of even casual drug use, are now filling expensive federal prisons with convicted drug users. In 1970, drug offenders made up 16% of all federal prisoners; now they are 62% of the total and by 1997 they will make up an estimated 70%. Many are violent, repeat offenders, but too many others are not.

Judges of all ideological bents openly deplore and increasingly resist their absolute lack of discretion under this scheme. Experience as a jurist doesn’t matter. A convicted defendant stands before them; the judge simply looks up the crime in the sentence tables, adds time to the minimum term for such “enhancements” to the crime as the use of a firearm, and moves to the next case. About 100 senior judges now refuse to hear even low-level drug cases rather than abide by this brainless scheme.

The racial disparities now emerging from the application of the federal sentencing regime constitute the ironic, ugly underside of Congress’s dogged effort to end disparate treatment of drug offenders. As The Times recently reported, virtually all white defendants charged with crack offenses in Southern California since 1986 have been prosecuted in state court while federal prosecution, with far longer prison sentences resulting upon conviction, seems reserved exclusively for blacks and Latinos. Federal prosecutors defend their record as colorblind and as resulting from prudent, even compassionate decisions to target scarce law enforcement resources in the neighborhoods most victimized by drug violence--minority neighborhoods. Indeed, the local pattern mirrors the national one; a 1992 survey found that only minorities were prosecuted for crack offenses in 17 states and many cities--more than half the federal court districts nationally that handled crack cases.

The questionable strategy of drug surveillance and apprehension that produces this disparate pattern of prosecution should no longer prop up an inherently indefensible congressional sentencing scheme. Yet unlike a growing number of federal judges, U.S. attorneys continue to stand behind this regime. As they do, they undermine their own considerable influence on Congress and the President to restore some badly needed discretion and proportionality to the ongoing war on drugs.

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Who Gets Prosecuted

Although more whites than minorities use crack cocaine nationally, minorities account for at least 96% of the defendants prosecuted for crack offenses in federal courts nationwide.

Whites Minorities 1992 3% 97% 1993 4% 96% 1994 3.5% 96.5%