COCAINE DISPARITY: It's possible to be tough on drug criminals without being soft on common sense. For two decades, however, Congress' desire to appear hard-nosed has run afoul of sense and fairness.

It's possible to be tough on drug criminals without being soft on common sense. For two decades, however, Congress' desire to appear hard-nosed has run afoul of sense and fairness.


Specifically, a law passed in 1986 — during the height of America's "war on drugs" — treats cocaine offenders drastically different, depending on what form of the drug they have: powder or crack. One is snorted, the other smoked. Both produce a euphoric high. But criminals who sell 500 grams of powder cocaine face the same sentence as crack offenders selling 5 grams, the weight of a couple sugar packets.


This disparity has come under increased scrutiny and criticism from legal, medical and policy experts, who say the laws are racist. Indeed, in the 1980s powdered cocaine became popular among affluent Americans, while considerably cheaper crack rocks found an audience of abusers on urban streets. Even now, 85 percent of crack offenders sentenced under federal law are black.


"There's no scientific justification to support the current laws," argues Dr. Nora Volkow, director of the National Institute on Drug Abuse.


Two recent federal actions represent small steps toward narrowing the sentencing gap.


First, the U.S. Sentencing Commission — the agency that establishes sentencing policies and practices for federal courts — decided in November to cut the range for crack offenses. First-time violators with 5 grams or more of crack now face 51 to 63 months behind bars, instead of 63 to 78 months.


On Dec. 11 the commission made the decision retroactive, meaning as many as 19,000 federal prisoners could seek a sentencing reduction. It will be up to judges to decide.


Second, in a Dec. 10 ruling, the U.S. Supreme Court reaffirmed the right of judges to use their judgment when sentencing federal drug offenders. The case before the court involved a Gulf War veteran arrested in Virginia. It wasn't the 90 grams of powder cocaine possessed by Derrick Kimbrough that threatened him with two decades of prison time; it was the 56 grams of crack he had. Still, a district judge gave him a reduced sentence of 15 years, noting that Kimbrough's case exemplified the "disproportionate and unjust effect that crack cocaine guidelines have in sentencing."


An appeals court overruled him. The high court, however, rightly concluded that the original judge acted reasonably. "In making that determination, the judge may consider the disparity between the guidelines' treatment of crack and powder cocaine offenses," Justice Ruth Bader Ginsburg wrote for the 7-2 majority.


We appreciate why lawmakers cracked down on crack in the 1980s. It is a potent, addictive, destructive variant of a known devil. But a cocaine user is a cocaine user. The 100-to-1 ratio for powder cocaine and crack users is so outrageous that it is absolutely fair to raise questions of race and class in the law's enforcement.


We can argue all day about whether America is winning or losing its war on drugs, though it does seem that these get-tough policies have done little to deter the use of illegal narcotics. What should be beyond debate is that America's judicial system must be just. These cocaine laws are not; the penalties should be more equitable.