Revisiting Drug Sentences

This nation’s harsh drug sentencing laws, now nearly two decades old, are causing low-level first-time offenders to serve ever-longer prison terms. Drug cases now account for one-third of federal criminal court dockets. These findings, from a new Justice Department study, are a familiar, disturbing story. It has gone on for so long because the same lawmakers who regularly decry rising prison costs, crowded court calendars and decades-long sentences for small amounts of drugs are too gutless to change laws imposing mandatory prison terms. A federal circuit court decision earlier this month may finally force the issue.

A panel of the U.S. 9th Circuit Court of Appeals in San Francisco struck down parts of the 1984 drug sentencing law that allowed judges to increase a defendant’s possible sentence, depending on the amount and purity of drugs involved. The appeals court said in the Aug. 9 ruling that determining the actual amount of a drug in a case is the job of the jury, which decides the facts. The bottom line is that if the ruling stands, which is far from certain, thousands of previous federal drug sentences could be overturned because, the court said, the process by which judges arrived at those sentences is unconstitutional.

The appeals court decision comes at an interesting moment, with even the new conservative administration expressing some interest in tempering the law.

Federal judges of all political stripes have long disparaged the rigid sentencing in the 1984 law. Federal guidelines and statutes have turned judges into accountants who, once a jury convicts, look up the crime and any enhancing or mitigating factors in pages of tables and calculate the sentence. End of story.

The mandatory minimums are also unfair by another measure. Those convicted of possessing 500 grams of powder cocaine draw a mandatory five-year term. It takes only five grams of crack--cocaine in a different form--to draw the same minimum term. Lawmakers justified this 100-to-1 disparity by pointing to violence in the crack trade. But the result has been the disproportionate incarceration of African American crack offenders.

The federal Sentencing Commission has over the years recommended softening the law’s harsh impact. But for Congress and recent presidents, the perils of appearing to coddle criminals always won over a rational and humane policy. Now even some conservatives, including Sen. Jeff Sessions (R-Ala.) and Asa Hutchinson, the head of the Drug Enforcement Administration, want to revisit the sentencing issue. The appeals court decision should give them the political cover they apparently need.