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Attorney General's remarks show its time to end disparity in crack vs. powder cocaine sentencing

Bill Piper and Ethan Nadelmann [Director of National Affairs and Executive Director, Drug Policy Alliance]: "US Attorney General Eric Holder's recent call for eliminating the crack/powder cocaine sentencing disparity and reforming mandatory minimum sentencing is a welcome development that reflects the growing momentum for sentencing reform on this issue.

This momentum began last year when then-Senator Joe Biden, running in the Democratic presidential primaries in early 2008, introduced a bill to eliminate the disparity in how crack and powder cocaine offenses are punished under federal law. Sentiment had been building in Congress to reform the law, and Senators Orrin Hatch and Ted Kennedy had co-sponsored a bill to reduce the disparity from 100:1 to 20:1, but Biden's bill leapfrogged them and proposed to reduce the penalties for crack cocaine to the same as those for powder cocaine.

It didn't take long for the bill to collect a handful of impressive co-sponsors, including Senators Barack Obama, Hillary Clinton and Richard Durbin (the assistant majority leader in the Senate). Few other senators signed on, sensing that the bill was unlikely to move during the last year of the Bush administration — but what stood out was the fact that three presidential candidates, including the two leading the pack, were willing to endorse the most far reaching reform of the crack/powder laws. That would have been inconceivable just four years earlier.

Last year's sponsors are now the President, Vice President and Secretary of State, and Sen. Durbin is not just the assistant majority leader but also the Judiciary Committee member who is leading the effort to usher the reform through the Senate. The day after the inauguration in January, the White House website was changed to make clear that the new administration would make good on the commitment of candidate Obama to eliminate the crack/powder disparity. Attorney General Eric Holder and his senior staff have reiterated that commitment numerous times since, both publicly and privately, with the attorney general emphasizing that he views this as a personal commitment as well.

The issue really boils down to three points. The first is the absence of any scientific or other legitimate basis for distinguishing how crack and powder cocaine are treated under federal law. They are, after all, the same drug — and it takes little talent or expertise to transform powder cocaine into crack cocaine, or to smoke the former to achieve the effect of the latter. That is why the US Sentencing Commission recommended, a decade ago, eliminating the disparity; that turned out to be the only one of the commission's recommendations to be rejected by the Clinton administration. The second point is the extraordinary injustice and cruelty of locking up people for five, ten, and more years for possession and sale of remarkably small amounts of drugs. This injustice and cruelty became more and more evident as the drug war hysteria of the 1980s faded and the federal prison population boomed.

The third point is the racial disparities in sentencing and incarceration that flowed from this law, with the crack penalties falling almost entirely on African Americans. This glaring injustice proved pivotal in galvanizing African American communities and leaders, including many elected officials who had voted for the initial law.

Both the White House and the Democratic leadership in both the Senate and the House have made clear three things: (1) that they want to eliminate the crack/powder disparity by reducing the penalty for crack — and not, as some Republicans have recommended, increasing the penalty for powder cocaine; (2) that they want a major reform of these laws signed by President Obama this year; and (3) that they want to pass reform with significant bipartisan support, which could mean settling for less than 1:1 or possibly a modest increase in powder penalties (although advocates oppose both).

Drug policy reformers hoped for this sort of momentum in 2009 but we are pleasantly surprised by the rapid progress in Congress. This progress reflects both widespread recognition of the drug war's excesses and a growing conviction that after decades of failure US drug policy needs to move in a new direction - one that, in President Obama's words, "focus[es] more on a public-health approach." At its heart, crack/powder reform is a racial justice issue, but more broadly it's a human rights issue.

The United States ranks first in the world in per capita incarceration rates, with less than 5 percent of the world's population but almost 25 percent of the world's prisoners. The incarcerated population has grown from 500,000 in 1980 to 2.3 million today, of which roughly a third involves drug law violations or drug-related violations of probation or parole. We incarcerate more of our fellow citizens for drug law violations than all of Western Europe (with a much larger population) incarcerates for all offenses combined.

As Sen. Jim Webb, D-VA, has said, "either we have the most evil people in the world or we are doing something wrong with the way we handle our criminal justice system, and I choose the latter. The central role of drug policy in filling our nation's prisons makes clear that our approach to curbing illegal drug use is broken." Policymakers, legal minds, and voters need to look critically at the social and economic consequences of criminalizing drug use and punishing people for nothing more than what they put into their bodies.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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