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Support for crack cocaine sentencing reform signals more rational approach to public safety

Marc Mauer [Executive Director, The Sentencing Project]: "Attorney General Eric Holder's call this week for Congress to finally eliminate the sentencing disparity between crack cocaine and powder cocaine "this year" was the most high-profile indication of the Administration's support for fundamental change in this shameful 23-year-old policy, and an indication that a change in these policies may finally be possible. Despite wide critiques of the mandatory penalties for crack offenses from federal judges, civil rights organizations, and many others, efforts to reform the sentencing policies originally enacted in 1986 have previously met with resistance from both the Clinton and George W. Bush administrations.

The renewed prospects for reform build on several developments. First is support from the top. In the previous Congress, then-Senator Biden was the lead sponsor of legislation to equalize the penalties between crack and powder cocaine, and then-Senator Obama was a co-sponsor of the bill. Support for reform has also become increasingly bipartisan in recent years. Key Republican Senators Jeff Sessions (AL) and Orrin Hatch (UT) have each introduced reform bills, and have expressed concern both for the racial disparities produced by the sentencing policies and the excessive disparity between penalties for the two forms of cocaine. There remain important differences among quantity triggers in the legislative proposals being discussed, but nonetheless they demonstrate growing support for change. Finally, the crack cocaine guideline amendments put into effect by the US Sentencing Commission in 2007, and made retroactive for people currently in prison, have been met with broad support and limited partisan backlash.

Despite this growing momentum, several hurdles for reform still exist. First, there is not yet consensus regarding what form the legislation should take. The Department of Justice and the Obama administration are on record as supporting "complete elimination" of the sentencing disparity between crack and powder cocaine (currently a 100:1 drug quantity ratio), but have not yet committed to achieving that by increasing the quantity of crack required to trigger a mandatory penalty, rather than reducing the powder quantity (which would result in more persons convicted of low-level offenses being sentenced to federal prison). There is no informed opinion which suggests that the powder quantities are insufficient to achieve the goals of sentencing and the US Sentencing Commission has warned Congress away from addressing the disparity by lowering the powder thresholds. One hopes that the DOJ will recognize this in its recommendations. Second, partisan wrangling continues regarding the goal of a 1:1 quantity ratio between the two drugs, so there may be political jockeying regarding what type of bill may pass. And finally, advocates for reform are also confronted with a packed legislative agenda this year, so the need to push hard to maintain a focus on crack cocaine reform remains.

Advocates for rational sentencing have been heartened by the newfound support for reform in the DOJ and among political leadership. And in many ways, the evolving climate on crack cocaine opens up broader questions regarding federal sentencing policy, and the excessively harsh mandatory penalties that have been adopted in recent decades. One can hope that if crack reform is successful it may lead to a broader discussion about the need for sentencing reform and a more rational approach to public safety."

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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