Will Other Justice Reforms Join Crack-Powder Sentencing in Law Books?


Last week, Congress corrected what most criminal justice analysts believe was a 24-year-old error, reducing the large disparity between mandatory federal prison sentences for crack and powder cocaine offenses. Advocates hailed the long-overdue action. Alison Shames of the Vera Institute of Justice called it “monumental on many fronts.”

But why did it take a quarter century for Congress to act, and what does that long time lapse say about the prospects of reform on other criminal justice issues?

For some of the answers, The Crime Report went to Eric Sterling of the Criminal Justice Policy Foundation, who as a congressional staff member helped write the legislation that sent many defendants to federal prison for long terms. “My role in these tragic injustices has been the great tragedy of my professional life, and has pained me for decades,” Sterling says now.

Many people have complained about the legislation ever since it went on the books, in large part because it was racially discriminatory: blacks tended to be the predominant users of crack, which required the same prison term as possessing 100 times the same amount of powder.

Sterling cites three factors that combined to help the fix finally emerge from Capitol Hill. One of them is the fact that crime rates have fallen so far since the crack bill was passed in 1986 that “crime is no longer the urgent issue that it was then.” Americans and their legislators are far more consumed with issues like the economy, health care, energy, and the environment. Members of Congress simply are less vulnerable to being contested on what formerly were controversial issues of crime control.

A second factor is the change of control at the White House. President Obama favored changing the crack-powder sentencing law; his two predecessors did not. The prospect that the president will sign a bill makes a big diference in its chances of passsage.

The third factor cited by Sterling is that it was only in the past five years that a coalition worked hard to pass the bill. It includes groups like Families Against Mandatory Minimums, the American Civil Liberties Union, the Open Society Policy Center, The Sentencing Project, the American Bar Association, the National Association of Criminal Defense Lawyers, the NAACP, the United Methodist General Board of Church and Society, the Drug Policy Alliance, and the Prison Fellowship and the Justice Fellowship.

The last two are particularly significant because they are conservative groups. In fact, the legislation got through only because Republican senators like Jeff Sessions of Alabama and Orrin Hatch of Utah embraced it. (As it was, Republican Lamar Smith of Texas, ranking GOP member of the House Judiciary Committee, opposed it to the end.) Sterling also credits Rep. Charles Rangel (D-NY) as having been in the first member of Congress to take up the issue. Rangel now is in trouble on ethics issues.

What’s next? In the first place, the new bill failed to eliminate the crack-powder disparity, rather reducing from 100-1 to 18-1 the ratio of crack vs. powder required to trigger a mandatory minimum penalty. Sentencing expert Douglas Berman of Ohio State University calls the law “more of a tweak than a big change: and adds that “a lot of the long-term impact will depend on how the U.S. Sentencing Commission makes corresponding changes in the crack guidelines” for judges.

Berman cites a commentary by Chris Weigant in the Huffington Post, headlined, headlined “Cocaine Sentencing Injustice Slightly Lessened,” which notes that, ” The penalties for crack and powder cocaine are still nowhere near parity.”

With Congress not expected to approve much more legislation beyond appropriations bills in its few weeks remaining before hitting the fall campaign trail, it is almost remarkable that the crack-powder bill was enacted. Much other criminal justice legislation has been discussed, and some has got through commitees in either the Senate or House, but there is no certainty that any of it will pass.

One example is the proposal by Sen. Jim Webb (D-VA) to create a commission to study criminal justice problems nationwide. It, too, passed the House last week, and has been approved by the Senate Judiciary Committee, but in the full Senate, the opposition of one member can prevent a bill from getting to the floor. Apparently the sponsors are lacking that unanimous consent so far, as they are on a long list of other measures. The quarter century that it took the drug bill to pass may not bode well for quick passage of crime-related bills.

The fact that crime is less of a prominent issue, as advocate Sterling points out, may have helped the crack-powder bill but is probably hampering other worthy legislation that needs unanimous agreement to make it into the law books this year. Many lawmakers simply don’t see the urgency to move on a problem that may not be on the front pages and at the top of their constituents’ minds.

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