Whittling Away But Leaving A Gap - NY TIMES

We are concerned that unless there is significant intervention on a congressional level, new sentencing guidelines won't amount to much more than lip service.

By ADAM LIPTAK

There was an avalanche of sentencing news last week. The Supreme Court gave trial judges more power to show mercy, the United States Sentencing Commission gave almost 20,000 prisoners doing time on crack cocaine charges a good shot at early release, and even President Bush commuted a crack sentence.

The net effect: tinkering.

The United States justice system remains, by international standards at least, exceptionally punitive. And nothing that happened last week will change that.

Even the sentencing commission’s striking move on Tuesday, meant to address the wildly disproportionate punishments for crack and powder cocaine, will have only a minor impact. Unless Congress acts, many thousands of defendants will continue to face vastly different sentences for possessing and selling different types of the same thing. Crack and powder cocaine are two forms of the same drug. But, under the old guidelines, a drug dealer selling crack cocaine was subject to the same sentence as one selling 100 times as much powder.

Street dealers selling crack got much longer sentences than the wholesalers who sold them the powder they used to make it. Eighty-five percent of people convicted of crack offenses are black
After the recent amendments to the guidelines, the ratios vary from 80 to 1 to 25 to 1, and the average sentence for crack offenses dropped by about 15 months, to a little less than 9 years. On Tuesday, the commission made the changes retroactive. The final sentencing decisions will be up to federal judges, newly empowered to do as they wish.

But only to a point. Neither the commission nor judges can do anything about the mandatory minimum sentences that retain the same disparities. The sentences are required by a 1986 law, enacted when crack was new, terrifying and seemingly unstoppable. Only Congress can change it Paul G. Cassell, an authority on sentencing who was until recently a federal trial judge, said the focus on the sentencing guidelines was in some ways a distraction.

“The mandatory minimums are so draconian,” he said. “I’m a believer in a good guidelines system. And I would much rather trade a much tougher guidelines system and get rid of mandatory minimums. The mandatory minimum sentence for crimes involving five grams of crack — a little more than a sugar packet — remains five years. For powder, the five-year mandatory sentence does not kick in until 500 grams, or more than a pound.

Fifty grams of crack equals a guaranteed 10 years. It takes five kilograms of powder to mandate the same sentence. Five kilos is a lot of cocaine. Mere possession of a relatively small quantity of crack means a five-year sentence. Possessing five grams of powder cocaine usually results in probation, said Marc Mauer, the executive director of the Sentencing Project, a research and advocacy group.

Indeed, the maximum sentence for simple possession of any drug but crack, including powder cocaine and heroin, is one year. There are several bills kicking around Congress meant to harmonize cocaine sentencing laws. But, perhaps perversely, the Supreme Court’s decisions last Monday may make Congressional action less likely. Letting judges have too much discretion does not sit well with some legislators, and that discretion can be controlled through mandatory minimums.

“It’s going to be more difficult to make the case for repeal of mandatory minimums across the board when judges are viewed as having too much discretion,”

The New York Times