Bessent: Fix cocaine sentencing disparity

Alvin Bessent is a member of the Newsday editorial board.

Legislate in haste, repent at leisure. That's been the sorry story of federal prison sentences for possession of crack cocaine versus powder cocaine for more than two decades.

Congress wrote an injustice into law in 1986 when it decided five years behind bars was the appropriate mandatory minimum sentence for possessing 5 grams of crack, while setting the trigger for that same sentence at 500 grams if the cocaine is powder.

That 100 to 1 weight disparity was the result of policy-making driven by fear, misinformation and race, a volatile mix that often drives criminal justice legislation astray.

Creating the disparity was wrongheaded. Retaining it for so long, despite evidence it was unjustified by the facts and racially discriminatory in its impact, was an affront to justice. That affront was only partially cured by a new law last year that narrowed, rather than eliminated, the disparity.

Crack was the new, new thing in the 1980s. Conventional wisdom was that crack was more addictive than powder cocaine, and that crack use led to out-of-control violence. It was a bad time, with ravaged crackheads and a bold drug trade holding sway in city neighborhoods across the country. So Congress bought the hype.

Experience and study subsequently debunked the notions of addiction at first toke and hyper-violence. Crack devastates lives and scars communities. But so does powder cocaine. As the basis for distinctions faded, Congress should have revisited the law to eliminate the disparity. Particularly as it also became clear that the law, if not intentionally discriminatory, had that effect.

Black addicts -- drawn to crack because it could be bought in cheap, individual doses and carried an urban druggie cachet -- were slammed with hair-trigger mandatory sentences. Whites who preferred powder caught the break cooked into the law. It was as though there were separate laws, one for blacks and another for whites.

The U.S. Sentencing Commission -- the agency that develops sentencing guidelines for the federal courts -- urged Congress for 15 years to correct the injustice. The commission amended its guidelines in 2007 to reduce prison time for crack possession, but only Congress could address the fundamental inequity.

It finally did last year. Under the new Fair Sentencing Act, it now takes 28 grams of crack, or 500 grams of powder cocaine, to trigger a mandatory 5-year prison sentence -- a 1 to 18 weight disparity rather then the previous 1 to 100. The law established the same reduced disparity for offenses involving more weight that trigger 10-year minimum sentences.

That's something, but it's not enough. Cocaine is cocaine, no matter the form, so penalties should be the same, no matter the form. And sentencing changes should be retroactive, something the law didn't address. People locked up under the old, unjust law should be eligible to seek sentence reductions.

The Sentencing Commission will vote today on whether to authorize that kind of retroactivity. Approval would make 12,835 people -- 10,884 of them black and 109 from the Eastern District of New York, which includes Long Island -- eligible to petition a judge to have up to three years taken off sentences that average 13 years. About one-third of them would be eligible for immediate release.

It's the right thing to do. Similar, retroactive sentence reductions in 2007 resulted in no significant increase in recidivism, so the impact on public safety should be minimal.

Some members of Congress don't like giving inmates a break. No great surprise there. Like fear, misinformation and race, tough-on-crime posturing is also a staple of the politics of criminal justice, which should be, above all, about justice.