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The debate about crack and powder cocaine sentencing
misses the big picture.
In 1986, Congress gave the U.S. Justice Department
a powerful tool to attack high-level drug traffickers
-- mandatory minimum prison sentences. Since then, 95
percent of the crack dealers sent to federal prison
have not been high-level dealers. More than 60 percent
have been bodyguards, couriers or street-level operators
-- the low-level offenders.
What outrages many observers is that almost 90 percent
of these low-level federal prosecutions involve African-American
men -- even though a substantially larger percentage
of whites used crack cocaine than blacks in 1994.
In fact, the Los Angeles Times reported in 1995 that
after eight years of prosecutions no white person had
ever been convicted of a crack cocaine offense in the
federal courts in Chicago, Boston, Dallas, Denver, Los
Angeles or Miami.
Why are so many low-level crack dealers ending up
in federal court? In its pre-election haste, Congress
set the quantities defining two classes of high-level
drug traffickers at absurdly low levels -- one at 5
grams and the other at 50 grams of crack cocaine. The
quantities for powder cocaine were slightly more reasonable
-- 500 grams and 5 kilograms.
Some African-American lawmakers have seen Congress'
mistaken 100-to-1 cocaine-to-crack ratio as the reason
why so many black males were going to federal prison.
They suggest creating quantitative parity between the
two types of cocaine. Scientists have shown that cocaine
is equally addictive whether it is powder or crack.
In 1995, the U.S. Sentencing Commission recommended
moving to a 1-to-1 ratio between the two forms of cocaine
(at the powder cocaine levels of 500 and 5,000 grams)
for general sentencing purposes.
Last week, the president adopted the recommendations
of Atty. Gen. Janet Reno and drug czar Barry McCaffrey
to change the mandatory minimum sentencing statute to
25 grams and 250 grams. But the statute is not the key
to the problem.
The key is that federal prosecutorial power is discretionary.
The Justice Department picks which cases go to federal
court. They should be the most important ones but they
aren't. The U.S. Sentencing Commission's 1995 report
revealed that of the 3,100 federal crack defendants
in 1994 only 5 percent were high-level offenders. Federal
power is being wasted on small-fry.
If the Feds were focusing on high-level dealers, the
racial disparity in cocaine sentencing would disappear.
Federal anti-cocaine efforts should be focused on
those who ship cocaine by the ton, in 1 million-gram
loads, not the 5-gram, 50-gram street criminals.
If there is any force on the globe that can successfully
challenge the cocaine dealers' billions of dollars in
revenues and private armies, it's U.S. law enforcement
-- but not if the officials are running down hoodlums
at the corner crack house.
These low-level, non-white drug defendants are the
least important drug trafficking offenders even though
they are getting longer sentences than high-level drug
traffickers -- 62 percent longer than the average federal
heroin sentence.
Isn't this evidence of a "pattern or practice" of
racial discrimination? That is why the Congressional
Black Caucus is outraged. Low-level Drug Enforcement
Administration agents and prosecutors are making these
decisions without effective supervision by the U.S.
attorney general.
Arguing about the sentences for 5-gram, 25-gram, 50-gram
or 100-gram cases when cocaine floods in million-gram
and multimillion-gram shipments, is a debate about the
size of the minnows. We must stop letting the Justice
Department, the attorney general and the "drug czar"
off the hook as the big fish get away.
It's time for Americans to stop cheerleading and yell
at the coach.
Mr. Sterling, president of the non-profit Criminal
Justice Policy Foundation in Silver Spring, MD was counsel
to the House Judiciary Committee, principally responsible
for anti-drug legislation, from 1979 to 1989.