Pubdate: Mon, 14 Jan 2002 Source: Wall Street Journal (US) Copyright: 2002 Dow Jones & Company, Inc. Contact: http://www.wsj.com/ Details: http://www.mapinc.org/media/487 Author: Gary Fields GOP SENATORS' BILL WOULD ADDRESS DISPARITY IN COCAINE-SENTENCING LAWS WASHINGTON -- In this city, sometimes only the unlikeliest politicians can force action on an issue. In the latest instance of this "Nixon to China" syndrome, a pair of tough-on-crime senators are addressing the disparate sentences meted out for crack and powder-cocaine offenses. Just as Congress recessed for the holidays, two conservative Republican senators -- Alabama's Jeff Sessions and Orrin Hatch of Utah -- introduced a bill to narrow the 100-to-1 ratio representing the amount of powder cocaine and the small amount of its crack form that, respectively, mandate five years of prison time for distributing the drug. Critics long have seen the disparity as a racial issue, unfairly punishing African-American communities, where crack is more prevalent, compared with white suburbia, where powder cocaine is the preferred form of the drug. But in a political climate that rewards those who are tough on crime, politicians have been wary of taking action that might be viewed as softening a drug law. But "when it's two senior, white senators talking about racial disparity," that brings a different level of exposure to the issue, said Marc Mauer of the Sentencing Project, a nonprofit group opposed to mandatory sentences. "It's important recognition of the problem." The Sessions-Hatch bill still would leave a disparity in how much of each drug draws a five-year sentence, though it would narrow the ratio to 20-to-1. If a case is prosecuted at the federal level under the current law, someone caught with five grams of crack gets a certain five-year sentence, while someone would have to be in possession of 500 grams of powdered cocaine to trigger the mandatory prison time. The two Republicans' bill would raise the crack trigger amount to 20 grams, and lower the powder amount to 400 grams. Meanwhile, other signs point to a willingness to take on the long-simmering question. Last year, some states, such as Louisiana, changed their own versions of mandatory-sentence laws. President Bush, less than a week after taking office last year, said it was time to examine the impact of the lengthy sentences on nonviolent, first-time drug offenders. Spokeswoman Claire Buchan says the administration is reviewing the Sessions-Hatch bill. Separately, the U.S. Sentencing Commission, which sets guidelines for federal sentences, has begun reviewing those rules. Just days ago, the commission decided to put a notice in the Federal Register this week, seeking public comment about revisions, specifically on the crack- vs.-powder cocaine disparity. The commission had planned to take up the issue anyway. But in December, Sen. Hatch, the lead Republican on the Senate Judiciary Committee, and Committee Chairman Patrick Leahy, a Vermont Democrat, wrote Commission Chairwoman Diana Murphy that it should do so. "Provide us some guidance," they wrote, "as we continue to evaluate the appropriateness of the penalty differential between powder and crack cocaine." For her part, Ms. Murphy, a federal appellate court judge, welcomes the Sessions-Hatch bill that was filed eight days after she received that letter. "We're very happy to have Congress moving into this area." The crack-powder disparity has been a source of dispute for years. In 1986, Congress imposed the harsh minimum sentences for crack crimes, as legislators concluded that the substance was more dangerous than powder cocaine. The Sentencing Commission proposed eliminating the disparity in 1995. But Republicans, who had just taken over Congress for the first time in 40 years, promising a conservative "revolution," blocked the change. It was the first time Congress had rejected a commission recommendation. President Clinton tried but failed to lower the disparity to a 10-to-1 ratio. During the past decade, medical studies have determined that there is little physiological difference between crack and powder cocaine usage. As a result, the arguments supporting a stiffer penalty for crack users have lost some of their punch. The Fraternal Order of Police, once opposed to change, is open to the debate now. James Pasco, executive director of the 300,000-member group -- the largest law-enforcement labor organization in the country -- said, "There's been too much demagoguery and not any civility in the debate on powder versus crack. That's what's needed, a debate. Anytime you've got two total disparate points of view, there's a compromise in the middle, and I'm sure Sen. Sessions would seek that compromise." Though his co-sponsor, Mr. Hatch, is the better known of the two conservative senators, Mr. Sessions's lead role on the race-sensitive matter is the most intriguing. As a tough Alabama prosecutor of drug dealers, he caught the Reagan administration's attention and was tapped to be a federal judge in 1986. But senators rejected his nomination after civil-rights groups raised questions of racial intolerance. The low-profile senator was at work on his bill months before Sept. 11, and the attacks that day delayed both his introduction of the bill and his marketing of it to other senators. "Unfortunately, we have to put people in jail to preserve a safe society," he said. "But we don't need people in jail longer than necessary to accomplish that goal." The bill doesn't "undermine the sentencing guideline structure," he added, "but, in fact, strengthens it because it makes it more rational and effective." Some critics of the current law welcome the senators' initiative, but say they would prefer that the bill simply raised the amount of crack needed to trigger the prison sentence. "I'm not opposed to the idea that there might be a difference between the two drugs, but I am against picking the numbers out of the blue to get a ratio," said Julie Stewart, president of Families Against Mandatory Minimums. "The ratio isn't the problem. It's the crack penalties that are the problem." Meantime, some Senate Democrat staffers are wary that Sens. Sessions and Hatch have moved without waiting for some analysis under way at the Sentencing Commission. "We were hoping to look at the whole thing before deciding what legislative step to take," one staffer said. The Democrats privately question whether the two Republican senators are trying to undercut the commission's review of appropriate sentences, in effect, by setting what appear to be limits on what Congress will agree to. Proponents of change, such as Ms. Stewart's group, endorse other parts of the bill as well, particularly those that pertain to the sentences meted out to bit players, or unwitting ones, in the drug crimes. An important provision could limit to as little as 10 years the jail time that minor players, who benefited little from a drug operation, can receive. It also would allow for reducing that sentence at least 20% more if the defendant "had a minimum knowledge of the illegal enterprise, was to receive little or no compensation ... and acted on impulse, fear, friendship or affection." Currently, federal sentences are based heavily on the quantity of a drug linked to a suspect, rather than other factors such as a suspect's knowledge of the drug operation itself. Sen. Sessions said hundreds, if not thousands, of offenders who were couriers -- known as mules -- or otherwise bit players have ended up serving lengthy sentences because of the size of the operations. "A girlfriend or a young person may be asked to transport some drugs and they just do it. And whether it is two pounds of cocaine or 30 pounds of cocaine wouldn't make much difference to them, but it has a huge impact on sentencing," he said. "The goal of a good sentencing system would focus on the person with what I call the highest degree of criminality," Mr. Sessions added. "We have provided tougher sentences for the organizers who use violence and easier sentences for those who were small role players." - --- MAP posted-by: Keith Brilhart