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Crack-Powder Sentencing Disparity Reduced By Congress

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Congress addressed a historic wrong on Wednesday afternoon, replacing it instead with a slightly lesser wrong, when the House voted to reduce the disparity in the sentencing of people caught with crack cocaine versus powder cocaine.

To be charged with a felony, crack users needed to possess only 5 grams of the drug. To be hit with the same charge, powder cocaine users needed to be caught with 500 grams. This 100-to-1 disparity has frequently been cited by drug war opponents as exhibit A to buttress their claim that drug laws are racist.

Pending President Obama's signature, the new law will reduce that disparity to 18-to-1. The threshold for crack cocaine in the new law will be 28 grams; the powder level remains the same.

The moment on the House floor came and went fairly quickly, but the ease with which the bill passed belied a lot of behind-the-scenes activity.

As of Friday, the bill was not on the calendar to be considered this week. But on Saturday at the Netroots Nation conference, House Speaker Nancy Pelosi (D-Calif.) was asked about the disparity and said that she expected the bill to come up the next week. It was placed on the calendar on Tuesday.

Majority Leader Steny Hoyer (D-Md.) controls the floor schedule and has been pushing on the issue for several weeks, working "hand in glove," according to one Senate aide, with Senate Majority Whip Dick Durbin (D-Ill.), who sponsored the upper chamber's version of the disparity fix. The Senate aide said that Hoyer was late to a bicameral leadership meeting Tuesday night because he was still making calls to nail down support for the legislation.

A key question was whether Republicans would demand a roll call or allow it to pass by a voice vote. Few vulnerable politicians, in an election year, want to vote on anything that could be cast as being soft on crack cocaine. Hoyer worked directly with House Republicans to assuage some of their concerns in an effort to ward off a demand for a recorded vote, which could jeopardize the legislation.

A House Republican aide confirmed that Hoyer approached Republicans before the vote but said that the GOP's decision not to demand a roll call had more to do with the bill having the support of conservative stalwarts such as Sen. Tom Coburn (R-Okla.), the Prison Fellowship Ministries and activist Grover Norquist. With a left-right coalition intact, the bill sailed through.

In March, the Senate approved the legislation to reduce the disparity to 18-to-1, also on a voice vote.

President Obama is expected to sign the legislation, having expressed opposition to disparity in the past.

Majority Whip James Clyburn (D-S.C.) hailed the law. "Although the majority of crack offenders are white, 80 percent of convictions fall on the shoulders of African Americans. A law that reflects such a high degree of discriminatory application needs to be fixed," he said after the vote. "This is not to say the crack cocaine is not harmful and destructive in our neighborhoods and communities. It is, and S. 1789 includes increased criminal penalties for serious drug offenders. Furthermore, this legislation does not sacrifice our law enforcement capability; it simply recalibrates the exaggerated sentencing guideline to better reflect the relative harmfulness of crack and powder cocaine."

Other members of the Congressional Black Caucus said that it was a step in the right direction, but that more needs to be done. "I would have hoped that it would have gone further. But we'll take this for the moment. I mean it's movement. We're headed in the right direction," said Rep. Danny Davis (D-Il.).

"We always know that we have work to do," said Rep. Donna Edwards (D-Md.), "but the fact is that we have done something now that we never have been able to achieve before -- to close that disparity gap, which is really important to all our communities... This is a big deal."

Rep. Gwen Moore (D-Wisc.) called it a "work in progress." "I've been elected as a member since 1988 and I've yet to vote on the perfect thing," she said. "We're down to 18 to one instead of 100 to one."

The vote comes a day after the House approved legislation -- again by voice vote; nobody wants to be on record on drug policy issues -- creating a blue ribbon commission to study the criminal justice system from top to bottom and recommend reforms. The commission was pushed through the Senate by Sen. Jim Webb (D-Va.), whose tough-guy credentials allowed him to take on the issue of sentencing and drug-policy reform.

Law Enforcement Against Prohibition, a group of cops and judges who advocate for reform, hailed passage of both measures. "The 'war on drugs' has done nothing to reduce drug use," said the group's head, Neill Franklin, a 33-year police veteran who led multi-jurisdictional anti-narcotics task forces for the Maryland State Police. "But this failed prohibition policy has achieved some results: far too many cops killed in action, billions of tax dollars wasted, powerful and well-funded drug cartels and out-of-control violence in our cities. It's great to see our elected representatives finally beginning to address these problems, but there's still a lot more work to be done."

There are still dome dead-enders, however, unwilling to stop fighting the war. "I'm really disappointed we chose to reduce the penalties of cocaine trafficking," said Rep. Lamar Smith (R-Texas). "The original legislation was passed 25 years ago in response to the epidemic of addiction and violence in communities across America and it worked. Violent crime is down, drug crime is down substantially since those days and one of the major reasons is because of the increase in penalties. Now we've lowered those penalties and I greatly worry that this is going to cause more cocaine trafficking, increased addictions and the destruction of more lives."

Ryan Grim is the author of This Is Your Country On Drugs: The Secret History of Getting High in America. Lucia Graves contributed reporting.

CORRECTION: The original version of this article inaccurately attributed a quote to Rep. Artur Davis (D-Ala.). The quote, which remains in the piece, has since been attributed to the proper source, Rep. Danny Davis (D-Il.) In addition to seeking clarification, Davis' office released a statement this morning offering the following thoughts on the issue:

My position is that I supported the legislation to reduce the crack powder distinction because the current 100 to 1 ratio in the federal sentencing guidelines cannot be justified. I have held that position since I practiced as a federal prosecutor in the nineties. At the same time, I would oppose efforts to make the new ratio retroactive to past drug defendants largely on the grounds that the federal courts would be swamped with appeals and collateral attacks on sentences.

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