Early this week a change took place that made more than 20,000 people convicted federally of crack cocaine offenses become possibly eligible for an earlier (but not necessarily immediate) release from prison. Punishment for charges of crack possession are now closer to, but still not as low as, prison terms for powder cocaine possession.
U.S. Attorney General Michael Mukasey reacted to this change by calling for the law to be repealed. “Many of these offenders are among the most serious and violent offenders in the federal system and their early release … would produce tragic, but predictable results,” Mukasey claimed.
The St. Louis metro area ranks in the top 10 communities that could be affected by these earlier releases. Should we worry?
In the 1980s Congress enacted tough sentencing laws for those convicted of federal crack cocaine offenses. These laws resulted in a “100 to 1” ratio of punishment for those convicted of crack offenses compared to powder cocaine crimes. Simply explained, someone convicted of having one ounce of crack faced the same punishment range of someone convicted of having 100 ounces of powder cocaine. With mandatory minimums set by Congress, less than two ounces of crack cocaine triggered an automatic 10-years-to-life sentencing range, with no parole.
Only some of the crack penalty ranges have changed, but mandatory minimums continue. Since these laws were established, more than four in five of those convicted of crack offenses were African-American.
Crack commonly is associated with dramatically more violence than powder cocaine, but facts prove otherwise. Of those convicted of powder cocaine offenses in 2005, 6.2 percent involved violence. During the same year, 10.4 percent of crack convictions involved violence. This shows that the vast majority of the crack offenders are not “the most serious and violent offenders,” as Mukasey claimed, and explains why the crack penalties were lowered.
Mukasey’s inaccurate statements drew harsh criticism, including from Asa Hutchinson, a former head of the Drug Enforcement Agency. In an editorial published in the Washington Times, Hutchinson judged Mukasey’s position to be ignorant and unfair.
“It makes no sense that somebody arrested for a crack cocaine offense should receive a substantially longer prison term than somebody who is convicted of a powder cocaine offense,” Hutchinson writes. “When disparities like this exist, it offends the high principles of equal treatment under the law and fundamental fairness. The disparate racial impact of the sentencing rules undermines our nation’s larger goal of instilling respect for the criminal justice system.”
Mukasey also failed to acknowledge the process developed to protect the public in the aftermath of these possible earlier releases. Federal judges will review the merits of eligible individuals and receive briefs from federal prosecutors on each case before making a decision; furthermore, career criminals are not eligible for sentence reduction.
Approved inmates began being released Monday, including eight individuals who are coming home to St. Louis. We welcome them home and wish them well in their efforts to build new, productive lives. We believe that the U.S. attorney general is wrong to raise the alarm about their early release, which only reduces one of many race-based disparities in our system of justice. This change in crack sentencing norms is a small, belated but incredibly important step in bringing about more equality in criminal law. The elimination of mandatory minimum sentences should be next on the agenda.