Cocaine sentencing disparities may drop

Durbin bill would put crack penalties more in line with powder cocaine
2010-04-05T00:05:00Z Cocaine sentencing disparities may dropBy Dan Hinkel - dan.hinkel@nwi.com, (219) 852-4317 nwitimes.com

If you have a bag of cocaine and you want to add years to the prison sentence you will face if arrested and convicted, one quick way is to go to the stove with a box of baking soda and cook your cocaine into its smokable rock form, crack.

For decades, federal penalties for crack possession have far outweighed penalties for cocaine possession, and that disparity has galled lawyers and activists who say legislators relied on misinformation about crack cocaine's effects when they wrote sentencing laws that have disproportionately punished black drug defendants.

But the gap could be narrowed soon.

The U.S. Senate on March 17 approved a bill that would raise the amount of crack needed to trigger a five-year mandatory minimum sentence from a federal judge. Under current federal law, a person convicted of possessing 5 grams of crack with intent to distribute faces a mandatory minimum sentence of five years in prison. It takes 500 grams of powder cocaine to trigger that five-year mandatory minimum. The legislation, sponsored by Democratic Illinois Sen. Dick Durbin, would cut the sentencing disparity ratio from 100-1 down to 18-1, raising the amount of crack needed to trigger the mandatory minimum to 28 grams.

The bill similarly would adjust the ratio linked to the 10-year mandatory minimum, raising the amount of crack needed to trigger that sentence from 50 grams to 280 grams. The legislation would also eliminate the five-year mandatory minimum for simple possession of a small amount of crack.

Once a bill is passed, the U.S. Sentencing Commission could modify the sentencing guidelines that advise judges on the lengths of the sentences they hand out.

Local federal defense attorneys voiced support for a measure closing the gap.

"Five grams of crack cocaine weighs about (the same as) a nickel," said Jerry Flynn, executive director of the Federal Community Defenders program in Indiana's Northern District. "I've seen no rational explanation for the disparity."

Local attorney Stephen Scheele, who has represented many federal crack defendants, said he would like to see the disparity narrowed, but he thinks the crack-to-powder sentencing ratio should be 1-1. Flynn agreed.

Defense attorney Scott King, a former mayor of Gary, doesn't see the reasoning behind the proposed 18-1 ratio.

"I'm struck by the lack of logic. You're pulling a number out of a hat. What's your scientific or other basis for establishing a ratio?" he said.

Acting U.S. Attorney David Capp, whose Senate confirmation is pending, deferred comment to Attorney General Eric Holder. Holder has said he supports "eliminating" the gap, and he applauded the Senate's passage of Durbin's bill.

The idea of narrowing or eliminating the disparity has bipartisan support among federal legislators in Indiana and Illinois. Republican Indiana Sen. Dick Lugar supported the bill sponsored by Durbin and co-sponsored by Sen. Roland Burris, D-Ill. A spokesman for Sen. Evan Bayh, D-Ind., could not be reached for comment. The measure was approved by a voice vote, so there is no record of each senator's vote.

"Sen. Lugar recognizes the sentencing differential disproportionately affects African-American defendants, and he supported the Senate legislation," Lugar spokesman Mark Hayes wrote in an e-mail.

But the legislative scenario is not settled. U.S. Rep. Jesse Jackson Jr., D-Ill., has co-sponsored a pending bill that would eliminate the disparity by raising the amounts of crack needed to trigger the mandatory minimums to the current levels that apply to powder cocaine. That bill also would strike the mandatory minimum for simple possession of crack.

Jacob Ritvo, a spokesman for Democratic Indiana Rep. Pete Visclosky, said he could not speculate on how Visclosky would vote on Durbin's bill. But Ritvo said the Merrillville Democrat "believes that the mandatory minimum sentencing requirements should be made equal."

Crack cocaine was a new and incompletely understood street drug when legislators enacted the harsher penalties in 1986. Flynn said his experience never led him to believe crack is associated with greater violence than powder cocaine. The harsher crack sentences have disproportionately punished black neighborhoods, Flynn said,

"I think all you have to do is look at the incarceration rates to know that it's had a devastating affect. Obviously drugs and drug dealing are bad for communities, but I think that everyone can agree that the punishment should fit the crime," Flynn said.

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