Thursday, August 5, 2010

Drug sentencing:
Narrowing a crack that’s still a chasm

“I think the signing of today’s bill into law represents the hard work of Democrats and Republicans … coming together and making progress on something that people had identified as a glaring blight on the law,” White House press secretary Robert Gibbs said on Tuesday. You’re forgiven if the phrase “Democrats and Republicans ... coming together” made you think reality had been magically repealed.

Happily, no. On Tuesday President Obama signed into law legislation that reduces the effect of one of the more blatant, pernicious examples of discrimination in American society. With the stroke of a pen, Obama narrowed the sentencing disparity between crack cocaine and powder cocaine — a disparity that has disproportionately affected black and minority Americans for almost 25 years.

By signing the Fair Sentencing Act passed by the Senate in March and approved by voice vote by the House last week (Democrats and Republicans), the president goes a long way to making the raw numbers of judicial imbalance on this issue closer to lining up.

Under the law passed in 1986, in the height of the crack era, someone convicted of crack cocaine possession (historically, almost always black or Latino drug users) received the same mandatory prison term as someone with 100 times the same amount of powder cocaine (favored by white drug users). The new law cuts that ratio to about 18:1.

The law Obama just signed also eliminates the mandatory five-year minimum sentence for simple possession of crack. And more: The American Civil Liberties Union, on its Web site, noted that the Fair Sentencing Act “becomes law at a time when the U.S. Sentencing Commission is reconsidering the legitimacy and effectiveness of mandatory minimum sentencing [for all crimes] and ahead of a report on the subject the commission is expected to release in October.”

With his triumphal announcement of the planned drawdown of forces in Iraq, Obama’s signing of the Fair Sentencing legislation makes for fulfillment of two campaign pledges in one week. During the 2008 campaign, Obama said the disparity in cocaine-related sentencing based on forms of the drug "has disproportionately filled our prisons with young black and Latino drug users" and "cannot be justified and should be eliminated."

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Civil libertarians see it as a good first step. “Even as the president signs this bill into law, there is still work to do to address the ripple effects of this unbalanced sentencing policy,” said Jennifer Bellamy, ACLU Legislative Counsel. “The remaining disparity is at odds with an American criminal justice system that requires that all people be treated equally.”

The new law isn’t perfect, or even uniform in its application; because it doesn’t allow for being applied retroactively, there are any number of black and Latino Americans, some of them first-time offenders, who face the full weight of their sentences with no hope of relief from this law. And there’s that nagging 18:1 thing. Why’s this feel like a variation on the Three-Fifths Compromise?

But still. It’s a beginning, a move in the right direction of correcting an imbalance that we’ve known was an imbalance for years. The ratio revision for cocaine possession, and lawmakers considering changes in the mandatory-minimum sentencing structure, point to a promising possibility: judges being judges, freed of the handcuffs of imposing sentences that reject mitigating circumstances (like first-time offenses), sentences that fail to reflect the discretion and case-by-case latitude of sentencing a judge has rightly earned. Maybe there’s momentum now to move this further this down the field.

Image credit: Obama signs Fair Sentencing Act: Pete Souza/The White House. Crack cocaine: DEA.

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