Attorney General seeks review of cocaine sentencing laws

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U.S. Attorney General Eric Holder told lawmakers that it was time to close the gap in prison sentences for crack and powder cocaine crimes, a disparity in sentencing that has had a large impact on the African-American community.

For years drug reform advocates have pointed to the difference in sentencing for powder and crack cocaine as one glaring example of institutionalized racism in the criminal justice system. About 90 percent of crack arrests are of African Americans, while 75 percent of powder cocaine arrests are of whites. Under federal law, it takes only five grams of crack cocaine to trigger a five-year mandatory minimum sentence. But it takes 500 grams of powder cocaine to trigger the same sentence.

The Obama administration announced in April its desire to change the law to end this 100-to-1 racial disparity in sentencing. Holder this week agreed, calling for a thorough review of federal sentencing and corrections policies, with an eye toward possible reform.

'The disparity in crack and powder cocaine sentences is unwarranted, creates a perception of unfairness, and must be eliminated.' he said, adding that the ballooning prison population and inadequate drug treatment programs also contribute to a public perception of injustice in the criminal justice system.

A few of the areas Holder said a review should concentrate on include:

* the structure of federal sentencing, including the role of mandatory minimums; * the DOJ's own charging and sentencing policies; * alternatives to incarceration and re-entry; * eliminating the sentencing disparity between crack and powder cocaine; and * an examination of other unwarranted disparities in federal sentencing.

'We are approaching this effort with a specific set of core values,' Holder underscored. 'We will apply those principles to create a sentencing and corrections system that protects the public, is fair to both victims and defendants, eliminates unwarranted sentencing disparities, reduces recidivism, and controls the federal prison population.'

The effort to change federal sentencing laws for cocaine has gained broad support at the federal level over the past few years. Rep. Bobby Scott (D-VA) is pushing for legislation that would end the gap by eliminating crack as a category in the criminal code. He called the 100-to-1 ratio 'a racial discrimination in practice' that must be ended, reported the Associated Press.

The movement for sentencing reform also reflects changes that have been been bubbling up on the national scene for the last few years. As the Sentencing Project detailed in their May 2009 review of federal crack cocaine sentencing:

After two decades of contentious debate regarding the federal sentencing disparities between crack cocaine and powder cocaine, unprecedented momentum to reform current policy has emerged. In 2007 the United States Sentencing Commission lowered the sentencing guidelines for crack cocaine offenses and recommended that Congress finally address the lengthy mandatory minimum sentences for low-level crack cocaine offenses. The U.S. Supreme Court ruled that judges may consider the excessive nature of penalties for crack cocaine offenses for purposes of sentencing defendants below the recommended sentencing guidelines. Seven crack cocaine sentencing reform bills were introduced during the 110th Congress, including bills in the Senate and House of Representatives that would equalize penalties for crack and powder cocaine offenses without increasing mandatory sentences. In 2009, President Obama declared that 'the disparity between sentencing crack and powder-based cocaine is wrong and should be completely eliminated.' The likelihood of legislative reform in the 111th Congress is the strongest it has ever been. ... The overwhelming consensus among federal judges, the civil rights community and legal experts is that now is the time for reform.

Drug reform advocates are also applauding the traction being made in Congress in terms of overall criminal justice reform. As Facing South reported earlier this month, new legislation -- the National Criminal Justice Commission Act of 2009 -- was introduced in March by Sen. Jim Webb (D-VA). If passed the bill would create a commission charged with completing an 18-month top-to-bottom review of the country's entire criminal-justice system, ultimately providing Congress with specific, concrete recommendations for reform.

It's Been a Long Road

Since 1980, the country's prison population has quadrupled to more than two million, with the South accounting for nearly half of that increase. The prison population increase can be attributed largely to draconian 'tough-on-crime' criminal justice policies enacted in the 1980s and 1990s. Among them were mandatory drug sentences and 'three-strikes-and-you're-out' laws.

The effects of the Drug War and incarceration were especially hard-felt in the South. By 2000, nine of the 20 states with the highest incarceration rates were in the South. It was harsh drug sentences that, more than anything, fueled the skyrocketing rate of incarceration in the South. According to the Sentencing Project, the nation's mandatory penalties for crack cocaine offenses were the harshest ever adopted for low level drug offenses - crack cocaine is still the only drug that carries a mandatory prison sentence for a first-time possession offense.

As the Sentencing Project reported:

African American drug defendants have a 20 percent greater chance of being sentenced to prison than white drug defendants. Between 1994 and 2003, the average time served by African Americans for drug offenses increased by 62 percent, compared to an increase of 17 percent for white drug offenders. Moreover, African Americans now serve virtually as much time in prison for a drug offense (58.7 months) as whites do for a violent offense (61.7 months).

Nation-wide, 27 percent of the growth in prison rates for African-Americans from 1990-2000 was from drug busts, even though 72 percent of illicit drug users in the country are white. By the late 1990s, 33 percent of convicted white defendants received a prison sentence, while 51 percent of African-American defendants received prison sentences. African Americans today account for more than 50 percent of sentenced drug offenders, yet only 13 percent of the country's population. Since the majority of African Americans live in the Deep South (the highest populations are in Mississippi, Louisiana, and Georgia respectively), the racial disparities of 'get-tough' drug war policies have been disproportionately felt there.

Despite the call for sentencing reform and policy review being pushed by the Obama administration, Holder and lawmakers such as Sen. Webb, drug reform advocates still point out that there is a long road ahead. Some advocates are calling for more focus on eliminating mandatory minimum rules which are especially harsh on first-time offenders, as well as racial profiling and other disparities in who gets arrested and charged for what offense. Advocates also hope to see more funding for prevention and rehabilitation programs, two things that are particularly lacking in the South.

Yet, lawmakers and advocates that have been pushing for reform in federal sentencing laws do agree that this is an important start. As Holder said this week:

There is no tension between a sentencing scheme that is effective and fair and one that is tough and equitable. We must work toward these twin goals and we must do so now. Too much time has passed, too many people have been treated in a disparate manner, and too many of our citizens have come to have doubts about our criminal justice system...We must break out of the old and tired partisan stances that have stood in the way of needed progress and reform. We have a moment in time that must be seized in order to ensure that all of our citizens are treated in a way that is consistent with the ideals embodied in our founding documents. This Department of Justice is prepared to act.