Ken Salazar was one of a bipartisan group of four Senators who introduced the Drug Sentencing Reform Act of 2006 aimed at reducing the disparity in sentencing between crack cocaine and powder cocaine.
The introduction was timed to hit the papers at the same time as his July 25, 2006 vote of the Child Custody Protection Act which makes it a crime to take a minor across state lines to obtain an abortion (which would have failed with six fewer votes; a margin made possible with Democrats like Salazar).
The goal was to balance a vote that would incite his Democratic party base with a bill that would encourage it. A closer look at the drug sentencing law, however, makes clear that Salazar is not introducing bold progressive legislation, although it does improve the status quo. Instead, the half measure is the moral equivalent of banning segregation in all but the front two rows of the bus.The Status Quo
The most discussed sentencing issue in criminal law in the United States is the death penalty. Close in second place is the fact that federal law equates 100 grams of powder cocaine to 1 gram of crack for sentencing purposes, as a result of legislation passed by Congress in 1986 and 1988.
As a result, it imposed a mandatory minimum sentence of ten years for possession of 5,000 grams of powder cocaine, or 50 grams of crack cocaine, and a five year mandatory minimum sentence for possession of 500 grams of powder cocaine, or 5 grams of crack cocaine. The United States Sentencing Guidelines used the same 100:1 ratio.
Alas, Congress isn’t any better at understanding cocaine than Bill Frist is at diagnosing brain damage via videotape.
It has been widely known, at least since the prestigious Journal of the American Medical Association reported a decade ago, in 1996, in an article by Hatsukami and Fischman, “Crack Cocaine and Cocaine Hydrochloride: Are The Differences Myth Or Reality?”, that, in fact, equal amounts of powder cocaine and crack cocaine have equal effects.
A typical street level drug dealer in powder cocaine has under 500 grams of powder cocaine on hand, while a typical street level drug dealer in crack cocaine has more than 50 grams of crack cocaine on hand. Thus, mandatory minimum sentences don’t apply at all to typical street level powder cocaine dealers, while a typical street level crack cocaine dealer faces a ten year minimum sentence.
The average sentence for someone convicted of selling under 25 grams of powder cocaine is 1 year and 2 months. The average sentence for someone convicted of selling the same quantity of crack is 5 years and 5 months.
There is one clear difference between the two drugs, however. Race.
Those convicted of powder cocaine offenses are 18% white, 30% black, 51% Hispanic and 1% other. Those convicted of crack cocaine offenses are 6% white, 84% black, 9% Hispanic and 1% other.
There has been widespread criticism of the 100-1 ratio in both academic literature, in judicial opinions and the popular press for decades. It is not a new issue at the U.S. Sentencing Commission or in Congress. Indeed, the “fad” that brought crack to the national spotlight has now, to a great extent, faded in favor of the drug de jure, methamphetamines.
The bill co-sponsored by Senator Salazar is a half measure. It changes the ten year minimum sentence threshold from 5000 grams and 50 grams to 4000 grams and 200 grams, respectively for powder and crack cocaine. It changes the five year mandatory minimum sentence threshold from 500 grams and 5 grams respectively, to 400 grams and 20 grams respectively for powder and crack cocaine.
Thus, it adopts a 20-1 ratio, instead of the current 100-1 ratio, even though the scientific evidence makes clear that both are identical substances. It is the equivalent of punishing illegal trafficing in gin twenty times as seriously as illegal trafficing in tequilla. (It is also notable that drug sentencing is based on the total weight of the drugs including inactive ingredients — thus, the illegal drug equivalent of a martini produces a much harsher sentence than the illegal drug equivalent of the gin that goes into it.)
The bill also changes the sentencing guidelines to add additional penalties for cases involving violence or possession of an undisplayed firearm, and on offenders who a “supervisors” in the drug trade.
The bill has two lesser publicized elements as well.
The most notable one places a cap the sentences of minor participants in the drug trade, regardless of the quantity of drugs involved (offense level 32 for most, and offense level 30 for true dupes and pawns). This saves “mules” from facing the harshest possible sentences, but doesn’t elminate mandatory minimum sentencing.
And, the program creates a pilot home detention program for non-violent offenders age 65 and over who have already served hard time (ten years or 50% of their sentence).
In short, Salazar’s drug sentencing bill, while a baby step in the right direction, is classic Salazar. It is an unprincipled half measure compromise, that moves slightly in the right direction without actually overhauling a fundamentally flawed part of the law. It deals with an area that is no longer seriously controversial, where there is already a widespread consensus that the law is grossly wrong and racially biased, supported by an overwhelming consensus and two decades of scientific research and near unanimous opinion from the judiciary and academia.
Indeed, the bill could fairly be described as a rear guard action, fighting hard to preserve racially disparate sentencing a little longer, rather than doing what clearly ought to be done, which is to eliminate the crack/powder cocaine entirely, as all but 14 states have already done. (Only Iowa uses the 100-1 ratio of the federal government).
Of course, a Senator Coors, would have opposed any change from the status quo. But, Ken Salazar’s agenda on July 25, 2006 is the kind of day that helps make politician a four letter word.