For more information, contact:
Eric E. Sterling, President
The Criminal Justice Policy Foundation
Tel. (301) 301-589-6020

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WASHINGTON -- "The long awaited report from the U.S. Sentencing Commission on racial disparity in crack cocaine and powder cocaine sentencing is fascinating and authoritative, but terribly inconclusive. It presents a strong case that Congress' sentencing policies diverged from logic and scientific evidence, and are applied with a suspicious racial imbalance. But the Commission fails to make a meaningful recommendation for correction," said Eric E. Sterling, President of The Criminal Justice Policy Foundation, and former counsel to the U.S. House Judiciary Committee (1979-1989). Sterling was responsible for developing drug laws when the controversial crack and cocaine sentences were written in 1986. The 242-page report, "Special Report to Congress: Cocaine and Federal Sentencing Policy," was issued on February 28, 1995 by the U.S. Sentencing Commission. Call 202-273-4500 [changed to 202-502-4500] for copies. [or http://www.ussc.gov] "This report is like Brown v. Board of Education in 1954 in which the Supreme Court found a terrible problem and said come back again and we'll think about a solution, and then in 1955 said lets address this problem with 'all deliberate speed.' This report proves that there is a terrible, unacceptable problem in the racial application of this statute, but its proposed remedies look like they will take place as slowly as frozen molasses, taking effect in November 1996 at the earliest," said Sterling.

"The report was commissioned by Congress to help it address the most egregious mistake in Federal sentencing -- the crack cocaine mandatory minimum sentences. This is an excellent report -- well researched and authoritative -- but it is tarnished by conclusions and recommendations that are pale platitudes about the seriousness of the drug problem, and the responsibility of Congress to make the laws," said Sterling.

"The Commission has marshalled the evidence that mandatory minimum sentences should be repealed. This report demonstrates that the mandatory minimum sentences are screwed up, and screwing up the justice system -- the result is that we are not sufficiently prosecuting the highest level traffickers and we are punishing the most minor offenders too harshly.

"The Commission could have, and should have, made a straight-forward recommendation to Congress -- repeal the mandatory minimum sentences. With the current guidelines in place drug traffickers will continue to go to prison for long terms. The alternative to the current approach of mandatory minimums is not no punishment, the alternative is a principled system of justice that the punishment ought to fit the crime. There is more to finding that fit than pulling out a scale and counting grams --simple quantity measures do not accurately define major or minor. Current sentences provide maximums for minor offenders of up to twenty years, and for serious offenders, maximums of 30 years, 40 years, and life imprisonment. The guidelines provide very long sentences right now. In order for the Commission to carry out its recommendation to itself, it has revise the guidelines to more carefully distinguish between major offenders and minor offenders. Judges cannot follow a more carefully written guideline structure while the mandatory minimum sentences remain the law," said Sterling.

"This report could be the foundation for the necessary, fundamental revision of Federal sentencing guidelines for drug offenses that take the many relevant variables into appropriate consideration, but the Commission's unwillingness to take a position now -- with strong data in hand -- makes me fear for the courage of their convictions. The recommendations in today's report are a disappointment; I am tempted to call them a cop out, " said Sterling.

In 1986 Congress enacted mandatory minimum sentences for cocaine and crack trafficking: sale of 5 grams of crack or 500 grams of powder cocaine is sentenced to a mandatory minimum 5 years in Federal prison; sale of 50 grams of crack or 5000 grams (5 kilos) of powder cocaine is subject to a mandatory minimum 10 years in Federal prison.

The report finds that 88.3% of those sentenced for selling crack are African-Americans and only 4.1% are white (p. 161), even though a majority of the nation's crack users are white (p.39). A November 9, 1993 hearing by the Commission produced extensive data and testimony that there is no pharmacological difference between crack and powder cocaine.

Crack is easily made out of powder cocaine. Simply mixing powder cocaine with baking soda and water, and heating the mixture on a stovetop or in a microwave oven can convert powder cocaine into crack. Federal agents have been found to insist to suspect drug sellers that they convert into crack cocaine the small amounts of powder cocaine that they are willing to sell. This enforcement practice often results in changing sentence levels for the conduct from the level of penny ante offenders who should get drug treatment and intensive probation and supervision to the level of drug traffickers who get mandatory 5 year sentences -- a practice that has been severely criticized by Federal judges.

"Every parent worried about the drug problem ought to be outraged by the circumstances at the base of this controversy. This report also demonstrates that a great deal of money and energy has been focused on many prosecutions of young black men for selling 5 gram or 50 gram quantities of crack cocaine. The report finds that 59.6% of all the crack defendants are street-level dealers or bodyguards. Only 9.2% of the powder cocaine defendants (and only 5.5% of the crack defendants) are high-level dealers (p.172). (And 41.7% of all the marijuana defendants are couriers or mules!) But the mandatory minimum sentences were created by the Congress in 1986 for 'major drug traffickers.' Congress wanted to 'send a message' to the Justice Department to focus on higher level traffickers. Justice has been deaf to that message.

"The Justice Department -- especially DEA and the U.S. Attorneys offices around the country -- ought to be focusing on those who are responsible for bringing tons of cocaine into the country, not those selling spoonfuls of crack on street corners. Street corner law enforcement is appropriate for local police, not for the international law enforcement resources of the U.S. Department of Justice. If DEA and the Justice Department were doing their job properly, the major traffickers they should be prosecuting under these statutes would not turn out to be 88% black men or 59% street level dealers.

"As scandalous as the racial disparity in sentencing is the underlying scandal that DEA and Justice aren't doing their job properly. This is obvious to almost everyone, but no one in authority is willing to say so, because they are afraid to criticize brave law enforcement officers or law enforcement agencies," said Sterling.

The Criminal Justice Policy Foundation is a non-profit educational organization that works with the public and policy makers on crime prevention, anti-violence, drug policy, sentencing, and other criminal justice issues.

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