Durbin's Bid to End Sentencing Disparity

The sentencing disparity between crack and powder cocaine is a national disgrace. Both President Barack Obama and Attorney General Eric Holder have called for it to be ended, and prominent Republicans like Alabama Sen. Jeff Sessions and Oklahoma Sen. Tom Coburn have indicated they're sympathetic to the idea. Today, the Senate Judiciary Committee will consider the Fair Sentencing Act, Illinois Sen. Dick Durbin's proposal to eliminate the disparity entirely.

"It is plainly unjust to hand down wildly disparate prison sentences for materially similar crimes," Holder said at a D.C. Court of Appeals Judicial Conference last summer. "It is unjust to have a sentencing disparity that disproportionately and illogically affects some racial groups."

Under current federal law, it takes 500 grams of powder cocaine to trigger the same mandatory minimum sentence as 5 grams of crack cocaine. The 1986 Anti-Drug Abuse Act was passed at a time when both black and white lawmakers wrongly believed that crack cocaine was more dangerous than powder cocaine. An absurdity, the law means that a high-level drug trafficker carrying hundreds of grams of powder cocaine is sentenced more lightly than a retail drug dealer on the corner with a rock in his sock.

Mistaking the effects of the drug trade for those of the drug itself, crack cocaine also became a convenient explanation for dismissing the effects of poverty and arguing that government efforts to remedy such problems would be useless. Conservative columnists warned of a permanent "bio-underclass" that would be created because of babies born to mothers who were addicted to crack, a eugenics-like argument that retroactively justified historical myths about black violence and depravity. The "crack baby" epidemic never materialized -- and scientists have concluded that the effects of crack on the development of children are negligible.

That's not to say disaster was averted. More than 80 percent of those arrested for crack have been black (despite the fact that most crack users are white), further exacerbating the racial disparities of a criminal-justice system author Michelle Alexander compares to Jim Crow segregation in her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness. More than 20 years since the passage of the law, the arbitrarily draconian penalties for crack cocaine have contributed to the increasing racial disparities in the U.S. prison system and helped swell the number of those behind bars to fully more than 1 percent of theĀ  entire U.S. population.

The sheer number of people behind bars isn't just busting state budgets; it's helped destroy families and neighborhoods with not much discernible effect on the drug trade. Because there's little difference between crack and powder cocaine, all the U.S. government is doing is doling out incredibly harsh sentences for no good reason. The U.S. Sentencing Commission has asked Congress to fix the problem four times, but one effort after another has faltered because of lawmakers fearful of being painted as "soft on crime." The sentencing disparity has been such an embarrassment that two years ago Vice President Joe Biden, one of the original sponsors of the 1986 bill, apologized saying, "Our intentions were good, but much of our information was bad."

Today, the Senate Judiciary Committee has an opportunity today to set something right -- or at least, make it less wrong than it has been for the past two decades. The problem is the Republicans on the committee might be less committed to reform than they initially indicated.

Sen. Sessions, who previously introduced bills to lessen the disparity but not eliminate it, has been circulating amendments to the Durbin bill that would do the same. Durbin's bill would make it so that it takes 500 grams instead of 5 grams of crack cocaine to trigger a five-year mandatory minimum, and 5 kilograms instead of 50 grams to trigger a 10-year mandatory minimum. Sessions' amendments would increase the amount of crack that would trigger a mandatory minimum to 25 grams for five years, and 250 grams for 10 years, leaving a sentencing disparity of 20 to one. Obviously that's an improvement on the status quo, but this course of action doesn't make much sense, since there's no difference between crack and powder cocaine that justifies the disparity in the first place.

Durbin's bill would eliminate the five-year mandatory minimum for simple possession of crack, while Sessions' bill would replace the mandatory minimum with a 10-year mandatory maximum. No other drug has a mandatory minimum for simple possession.

Sessions' amendments resemble a "compromise" Orrin Hatch forged in 2007 when a similar reform effort stalled. Diane Feinstein, Ted Kennedy, and then-Republican Arlen Specter signed onto Hatch's bill at the time, indicating their willingness to lessen the disparity if not end it entirely. Now, advocates for ending the disparity fear moderate Democrats on the committee might similarly line up behind Sessions' amendments for bipartisan cover.

There is an alternate path for Democrats seeking bipartisan support. Lindsey Graham plans to propose amendments that would reduce the disparity to 10 to one rather than 100 to one or 20 to one and that would eliminate the five-year mandatory minimum for simple possession, but again, there's no reason for a disparity in the first place. Graham's compromise remains more attractive than Sessions'.

Sadly, for political reasons, the Graham amendment may end up attracting more support than Durbin's original bill, which is the only one that rectifies the mistake made more than 20 years ago. If that happens, Democrats will have avoided ending several decades of injustice because of the mild discomfort of having to go it alone.

That hardly seems fair, but for the Democratic Party of today, painfully familiar.

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