August 5, 2010

Bipartisan consensus is mighty rare nowadays on Capitol Hill. How hard must it be, then, to get folks on both sides of the aisle to agree to reduce some criminal penalties - especially in drug cases - in an election year? Usually that's when lawmakers are bloviating on their efforts to "get tough" on crime.

Fortunately, Congress has defied the trend and produced legislation to fix an out-of-whack drug sentencing law. At issue is the sentencing disparity under federal law for users of crack cocaine vs. powder cocaine. Both are potent, addictive, destructive drugs, but when crack - the cheaper form of the narcotic, found more often in poorer, inner-city neighborhoods - began appearing on the streets in the 1980s, Congress levied hefty penalties for its possession.

Indeed, a 1986 law created a 100-to-one difference between the amount of crack and powder cocaine it takes to land behind bars for five years. Those caught and convicted with having as little as five grams of crack - about two sugar packets worth - faced a mandatory, five-year prison term. To draw the same sentence for powder cocaine, which tends to have a more affluent purchaser, required being caught with at least 500 grams.

Those sentencing rules led to 25 years of claims of racist treatment in the judicial system from legal, medical and policy experts on both sides of the aisle. To this day, around 80 percent of defendants charged with crack possession are African-American, though an estimated two-thirds of users are white or Hispanic. Most states have brought sentencing ranges for the two drugs closer to each other, but despite calls first from George W. Bush and then Barack Obama, the feds hadn't followed suit until last week.

The measure was crafted by Illinois Sen. Dick Durbin, the Democrat who has been pushing change on this issue for years. It is supported by Alabama Republican Sen. Jeff Sessions, who told reporters the disparity didn't meet the test of "rationality, fairness and logic."

Truth be told, the new law, signed by Obama on Tuesday, still doesn't meet those criteria, as an 18-to-1 difference still exists in the compromise bill. But it's a big step closer to parity. We hope Durbin and Sessions both start working to eliminate the difference that remains. Beyond that, the law isn't retroactive, so it won't affect the thousands jailed under the old provisions. The Obama administration could encourage the federal Sentencing Commission to take a new look at those old cases, something the commission did after administratively lowering minimum prison terms for cocaine convictions late in Bush's tenure.

Ultimately this issue is about fundamental fairness. Such a wide difference in sentencing rules was outrageously unjust. It targeted not drug kingpins or major dealers but low-level street thugs and small-time customers (who, by the way, cost taxpayers a bundle to lock up). Ideally, hard-and-fast minimum sentences wouldn't exist and judges would be allowed to exercise discretion. They'll get a bit of that back here, with mandatory sentences for first-time offenders being abolished in the bill.

In the short term, we'll take any step toward justice in America's judicial system, which this is.