Crack and the courts

Our view: Prosecutors shouldn't rely on an unfair disparity in drug sentencing rules to keep dangerous felons off the streets

November 30, 2011

Maryland U.S. Attorney Rod J. Rosenstein is warning that a recent revision to the federal sentencing guidelines for crack and powder cocaine possession will lead to the release of hundreds of dangerous criminals onto the streets. But before crying wolf about a new crime wave, he ought to consider federal prosecutors' role in creating what he describes as an impending disaster.

The fact is, most of the people currently in prison for drug violations aren't there because they committed violent crimes. On the contrary, the majority are low-level, nonviolent offenders who pose little threat to public safety. The reason they're still in prison isn't because they are more dangerous or violent than other drug offenders but because of the huge disparity in punishment between people convicted of selling crack cocaine and those guilty of selling the same drug in powder form.

Under the old sentencing guidelines, the penalty for possessing a gram of crack cocaine was the same as that for possessing 100 grams (or about 31/2 ounces) of powder cocaine, with a corresponding difference in mandatory minimum prison time. Given the devastating impact of addiction on families and communities from either form of cocaine, the disparity never made much sense as a drug abuse prevention strategy or public health policy. But it did disproportionately impact poor and minority communities where crack cocaine was more prevalent, leading to the arrest and conviction of hundreds of thousands of petty offenders who were sentenced to long prison terms.

That's why the bipartisan U.S. Sentencing Commission was right to move last year to narrow the gap between how the two forms of the drug are treated by the courts — and to make the change retroactive so that people who were sentenced under the old rules can regain their freedom as well as a measure of justice. The offenders who are being released now haven't gotten away with anything; they've simply served terms more in line with what they would have served if the penalties for crack had been more equitable in the first place.

Which brings us back to Mr. Rosenstein's dire warning that violent offenders are being let out. If they are, it's because federal prosecutors didn't do their job when they settled for putting dangerous criminals away on drug charges rather than prosecute them for violent crimes such as murder, assault and armed robbery. It's harder to win such cases, however, so when the skewed drug laws presented prosecutors with the opportunity to convict defendants for crack possession and have them sentenced to prison for nearly as long as they would have been for violent crimes, it's not hard to understand why they chose the easier, safer course.

The problem, of course, is that the same skewed drug law that made crack cocaine possession tantamount to murder also scooped up thousands of people who had never committed a violent crime and were unlikely to pose a public safety threat. Prosecutors may have put some bad guys behind bars using the crack cocaine law's stiff penalties, but the victory came at the cost of thousands of others who were unfairly sentenced to excessively long prison terms. Federal prosecutors were perfectly happy to just lock them up and throw away the key.

The result is a prison system overflowing with low-risk, nonviolent drug offenders who could be better dealt with through treatment programs and supervised probation at far less cost to the city and state. Simply throwing more people into prison doesn't make us any safer; it diverts resources away from dealing with the truly dangerous violent offenders who commit most serious crime. Meanwhile, it exacts a terrible toll on nonviolent inmates, their families and communities.

If Mr. Rosenstein and his colleagues across the nation are concerned about keeping dangerous criminals off the streets, they should be going after them for the violent crimes they commit, not relying on a patently unfair and counterproductive disparity in drug sentencing laws to do the job for him.

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