Unresolved Sentencing Disparity

The U.S. Sentencing Commission, fully staffed for the first time in years, last week revised federal sentences for a variety of cyber-crimes. Now the commission should return to the long-festering and indefensible disparity between penalties for crack and powder cocaine offenses.

Congress created the seven-member commission in 1984 to bring consistency to federal sentences, particularly for drug crimes. The panel sets guidelines for judges to follow when sentencing most federal offenders, sometimes responding to congressional directives and other times making its own recommendations to Congress.

In recent years the commission has become a casualty in the war on drugs, caught between the Congress and the White House. Federal drug felons, even first-time, nonviolent offenders found with small amounts of cocaine or marijuana, serve harsh mandatory minimum prison terms. There is no parole in the federal system.

The panel’s efforts to minimize these inappropriately stiff sentences and to narrow the huge disparity between sentences for crack and powder cocaine crimes landed it in hot water with Congress. For more than a decade federal law has mandated that anyone convicted of possessing five grams of crack serve at least five years in prison, the same minimum sentence that applies to federal gun crimes and arson. A five-year sentence for possession of powder cocaine kicks in at 500 grams. The 100-to-1 cocaine disparity sprang from concerns about the violence associated with the crack trade, but in practice it has meant that far more blacks and Latinos are prosecuted and convicted of cocaine crimes than whites. Sensible commission proposals to trim that disparity provoked a de facto congressional freeze on confirmations of new commissioners. By early last year, all seven seats on the panel were vacant.

Now back in operation with new members, the panel last week took action on a range of issues aside from cocaine, voting to boost penalties for pedophiles who use the Internet to find victims and for anyone caught assuming another person’s identity. These are sound steps, taken in response to congressional directives, a recognition of the growing threat of Internet-based crime as well as the heinous nature of such offenses as pedophile crimes.

Now, however, the commission should return to its unfinished business. Harsh and inequitable mandatory minimum sentences for drug crimes have filled one-fifth of all federal prison cells with low-level drug felons, many with no history of violence. That’s hardly the best use of scarce federal dollars, and neither is it the best face of American justice.