With Democrats in charge of Congress and Republican critics of mandatory minimums providing cover, the prospects for federal sentencing reform are looking better than they have in years. Rep. John Conyers (D-Mich.), a strong proponent of reform, is the new chairman of the House Judiciary Committee, replacing the rabid drug warrior F. James Sensenbrenner. Conyers plans to hold hearings on the subject this month or next. The first issue to be tackled probably will be the crazy sentencing disparity between crack cocaine and cocaine powder. Under current law, smokable cocaine is treated as if it were 100 times as bad as the snorted form—i.e., five grams of crack triggers the same mandatory sentence (five years) as 500 grams of powder. Because federal crack defendants are overwhelmingly black, the result is racially skewed sentencing dramatic enough to trouble even tough-on-crime conservatives (some of them, anyway). Since the active ingredient in the two forms of cocaine is the same and crack's purity is, if anything, lower (though smoking delivers a faster, more dramatic high), the sentencing disparity never made sense, as former advocates now admit. The punishment for possessing the two drugs should be the same (ideally, none), but more likely is a compromise that reduces the weight factor from 100 to, say, 20.
Crack sentences are just one particularly egregious feature of a system that imposes draconian punishments on nonviolent, low-level drug offenders, prompting judges across the country to complain about the injustices in which they are forced to participate. Although the Supreme Court has given judges some leeway by ruling that federal sentencing guidelines are merely advisory, that decision left untouched mandatory minimums dictated by statute, such as the 55-year sentence received in 2004 by a small-time pot dealer who happened to own a gun. "After so many years of this," says Julie Stewart, president of Families Against Mandatory Minimums, "people have forgotten that we should be asking for the whole fix, not just little pieces."