Under Federal law, possession of half a kilo of cocaine — about $10,000 worth — draws a mandatory 5-year minimum sentence. Possession of only 5 grams of crack — about $500 worth, since prices per unit weight are higher at retail — draws the same 5-year mandatory. That’s the notorious “100-to-1 crack/powder ratio.” It’s lost on no one that while dealers of large amounts of cocaine are sometimes white, retail crack dealers are almost invariably black or Latino. Anyone with half a kilo of cocaine is a substantial dealer, though under the laws of conspiracy very minor participants (e.g., drivers) can be punished as if the cocaine was all theirs. But someone can easily have 100 rocks of crack — it doesn’t even to have to be all at one time to count — without being more than a trivial player.
The law was passed in the aftermath of the Len Bias death, as violent and disorderly crack markets were devastating inner-city areas. At the time, it was supported rather than opposed by black elected officials, whose constituents were (and remain) outraged that law enforcement is so ineffectual in its attempts to protect their kids from drugs and their neighborhoods from the side-effects of dealing.
There’s no doubt that crack — cocaine prepared to be smoked rather than snorted — is a nastier drug problem than powder cocaine, in terms of risks to the user, user behavior, and the damage done by retail dealing. Since crack is typically converted from powder cocaine in small quantities, it would be difficult to punish crack dealing without punishing crack-dealing even in modest quantities; there’s no crack equivalent of the 100-kilo bust.
But the racial disparity in sentencing that has resulted from the law has made its repeal a cause célèbre . The federal Sentencing Commission has crafted its guidelines around the mandatories, so even cases that fall below the 5-gram limit draw much harsher sentences if the material is crack rather than powder.
Under current conditions, there’s no rational defense for the 100-to-1 ratio. Even President Bush has figured that much out. But the political process has been stalled by politicians’ fear of looking soft on drugs and by the lack of a convincing rationale for any other ratio. The Justice Department continues to stand firmly behind the current nonsense. While drug policy doves argue for equalizing up, by raising the quantity of crack needed to trigger a mandatory sentence, hawks reply “Why not equalize down?” as if two grossly disproportionate sentences were somehow better than one.
The problem lies deeper: in the decision to base sentencing mostly on the identity of the drug and the quantity sold or possessed for sale. Those facts are extremely poor proxies for what we ought to care about, which is the social damage done by the pattern of dealing that led to the arrest and conviction. The distinctions between flagrant and discreet dealing, between organizations that use kids and those that don’t, and between more violent and less violent ways of doing business all ought to matter more than the distinction between four grams of crack and six grams. But fixing that would involve changing the federal drug-sentencing structure from the ground up.
Today’s move by the Justice Department’s to rein in white-collar crime prosecutions shows the way toward a possible resolution of the crack/powder ratio problem. Most prosecutions are handled by the U.S. Attorneys’ offices in the ninety-four judicial districts. U.S. Attorneys are political appointees, chosen in practice by the Senators of the President’s party from the states in which they serve. Many are politically ambitious, and all are jealous of their independence from “Main Justice” in Washington. The Criminal Division of “Main Justice” (where I used to work) has about 400 prosecutors, compared with 4000 Assistant U.S. Attorneys.
But Main Justice asserts control on some issues. Prosecutions under the RICO (organized-crime) statute must be approved by the head of the Organized Crime Section, largely out of concern that aggressive use of that statute’s very sweeping provisions might lead the courts to strike it down. Today’s action requires AUSAs to get clearance on various aggressive tactics in corporate prosecutions, such as squeezing companies to waive attorney-client privilege and to stop paying legal bills for their employees.
So I propose the following solution to the crack/powder impasse: leave the mandatories where they are; decouple the guidelines from the mandatories so that crack isn’t punished much more severely than powder unless the mandatory sentences are invoked; and require clearance from the Narcotics Section of the Criminal Division in Washington for any charge leading to the 5-year mandatory sentence for crack where the cumulative quantity involved is less than 500 grams.
That would leave the 5-year mandatory available for use as part of crackdowns against flagrant and violent dealing, where the threat of “taking it Federal” is an extremely potent one. But it would eliminate the flagrant injustice of sending someone away for five years just for selling a little bit of rock. Perfect? No. But workable.