Some Sound Advice on Crack Sentencing

Assuming that Sen. Sheldon Whitehouse can break away from his all-white country club, the Senate Judiciary Committee should have full attendance today for its hearing about crack cocaine sentencing.  As the Washington Post informs us, today’s hearing will center on the Biden Administration’s proposal to lower the cost of doing business for crack dealers by reducing their sentences and, as an extra bonus, making the reductions retroactive.  This will assure earlier release for this particular cohort of drug traffickers, a large percentage of whom will recidivate within five years, according to Sentencing Commission figures. (The number is actually higher than Commission reports, first because yet more dealers recidivate after the five year window, and second because drug trafficking is a notoriously under-reported crime in any event).

Crack sentencing has been a hot topic for years, going back at least to the Fair Sentencing Act of 2010, co-sponsored by Sen. Dick Durbin and a man I’m proud to call a friend, then-Senator and later Attorney General Jeff Sessions.  Back then, that self-same Washington Post had some sound observations on crack sentencing, observations Congress would do well to heed today.

This is what the WaPo had to say, in part, in an August 2010 editorial (emphasis added):

Congress took a courageous and historic step last week toward making the criminal justice system more fair.

House lawmakers embraced a measure to reduce the 100-to-1 sentencing disparities between crack and powder cocaine; the Senate approved the proposal in the spring. The president is expected to sign the bill on Tuesday.

For the past three decades, those arrested for crack offenses — mostly young, African American men — faced far harsher penalties than the white and Hispanic suspects most often caught with powder cocaine. A person found holding 500 grams of powder cocaine would face a five-year mandatory minimum; crack offenders would have to be in possession of a mere 5 grams to face the same obligatory sentence. Crack offenders faced a 10-year mandatory minimum for carrying 10 grams of the drug; the same penalty would not kick in for a powder-cocaine suspect unless caught with 1,000 grams.

The Fair Sentencing Act of 2010 reduced the disparity to 18 to 1. An offender would have to be convicted of peddling 28 grams or more of crack to be hit with a five-year mandatory sentence. A 10-year prison term would be handed down for 280 grams or more. (Penalties for powder offenses are unchanged.) The legislation also eliminates a mandatory minimum sentence for simple possession — a significant advance in and of itself.

Some critics of the crack sentences have pushed for complete elimination of the disparities. But this ignores some data that crack has a slightly more powerful and immediate addictive effect and more quickly devastates the user physically than does powder cocaine. It also fails to acknowledge the higher levels of violent crime associated with crack. The 18:1 compromise fairly reflects this reality.

The same reality exists today, and should, as the Post prudently noted, counsel against any further reductions in crack sentencing (unless crack has become healthier or has suddenly started to improve rather than degrade its users’ lives, something that understandably no one is claiming).

But the Post’s advice is almost sure to be ignored, largely because Democratic legislators are in lockstep behind the Biden proposal, and because some well-meaning but misguided Republicans are going to join them.

There is one noteworthy difference between the crime landscape today compared to the landscape in 2010, however:  Back then, violent crime of the sort routinely associated with the crack trade was headed down, and today, and over the last several years, it’s headed back up.  It’s not that hard a guess as to what’s going to happen to it when the hundreds of crack dealers soon to receive their windfall get back in business.