Closing crack’s 100-1 ratio

Harlan Protass is a criminal defense lawyer in New York and an adjunct professor at the Benjamin N. Cardozo School of Law, where he teaches sentencing law.

For years, judges, academics, defense lawyers and even the U.S. Sentencing Commission -- the federal agency charged with responsibility for developing fair sentencing guidelines -- have condemned as unfair and unfounded the laws passed by Congress in the late 1980s that punish crack cocaine offenses much more severely than crimes involving powder cocaine. Average crack sentences have been about 10 years; powder cocaine sentences, seven years. Most notoriously, the laws wallop those who deal in as little as 5 grams of crack with the same five-year mandatory minimum prison term as those caught dealing 500 grams of powder cocaine. Lawmakers have stubbornly refused to close this 100-1 ratio.

This week, Congress finally tacitly conceded that crack-related penalties are too harsh. On Thursday, lawmakers let pass into law new guidelines proposed by the Sentencing Commission that will cut crack prison terms by an average of just over two years, with the amount of narcotics involved still playing the determining factor in the length of sentences.

Now the commission needs to finish the job. On Nov. 13, it will hold a public hearing to consider whether the new scheme should be applied retroactively -- a move that could potentially reduce the sentences of nearly 20,000 men and women currently incarcerated for crimes involving crack. Backed by Congress’ silent support, retroactive application is the right thing to do for the following reasons:


First, myths about crack, on which the 1980s laws were based, have been debunked. When those laws were introduced, Congress believed that crack was instantly addicting. Lawmakers feared that a generation of “crack babies” would plague the nation for years to come and believed there was a direct link between crack use and the commission of violent crimes.

It turns out that lawmakers were wrong. Relying on a finding detailed in the Journal of the American Medical Assn., the Sentencing Commission recently reported to Congress that crack is pharmacologically indistinguishable from, and produces harms no more severe than, powder cocaine, even to the unborn. The commission’s research also showed that crack’s use never reached the epidemic proportions that so many expected and that its consumption bears no higher correlation to violent crime than does that of other drugs.

What’s more, the laws’ objective of targeting high-level drug traffickers largely failed. The majority of crack offenders doing time today were street dealers, couriers and lookouts.

It only makes sense that crack offenders locked up for long stretches over the last 20 years because of laws based on false premises should have the opportunity to pursue the benefits of this week’s long-overdue remedy. What’s appropriate for a crack offender tomorrow is appropriate for yesterday’s offender as well.

Second, the 1980s’ crack laws disproportionately affect minorities. About 80% of the 25,000 federal defendants jailed for crack offenses during the last five years have been black. This has created the perception that federal drug laws intentionally discriminate against minorities. If the new sentencing scheme is not applied retroactively, this perception will be perpetuated, further eroding confidence in the judicial system and respect for the law.

Third, Congress, in establishing the Sentencing Commission and enacting federal sentencing guidelines in 1987, specifically sought to eliminate incongruent penalties imposed on similarly situated defendants. If the commission does not apply the new crack penalty structure to those convicted before Nov. 1, it will undermine its own cause. Moreover, retroactive application is consistent with past modifications to other drug penalties, such as those for LSD, marijuana and oxycodone.


Finally, retroactive application would place no extraordinary burden on the courts. The primary fact necessary to recalculate prison time -- the amount of crack involved -- already would have been determined in connection with offenders’ original cases. Thus, while the courts likely would be flooded with requests for changed sentences, they wouldn’t have to hold new hearings. Most motions could be dealt with on paper. Experience with other recent changes to federal sentencing laws has shown that the system is capable of revisiting many thousands of cases when justice so requires.

Opportunities to neatly turn back time on social injustices are rare. The new crack sentencing scheme presents one such chance. The Sentencing Commission should take advantage of this opening. To do otherwise is to compound the mistakes made when Congress first introduced harsh penalties for crack offenses.