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Julie Stewart

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The Moral Urgency of Crack Retroactivity

Posted: 01/17/11 03:50 PM ET

On some positions, Cowardice asks the question, "Is it safe?"
Expediency asks the question, "Is it politic?"
And Vanity comes along and asks the question, "Is it popular?"
But Conscience asks the question "Is it right?"
And there comes a time when one must take a position that is neither safe, nor politic, nor popular, but he must do it because Conscience tells him it is right.
-- Martin Luther King, Jr

On August 3, 2010, the nation's first African-American president signed into law a bill to reform what many considered the most racially discriminatory sentencing policy in federal law. The old policy required dramatically more severe penalties for crimes involving crack cocaine than for offenses involving powder cocaine. The president and Congress deserve credit for working together to lower crack penalties. Yet, in a cruel irony, they failed to provide any relief to the very prisoners whose unnecessarily harsh sentences they had pointed to as the impetus for reform. As our nation celebrates the life and legacy of Martin Luther King, Jr., we implore the president and new Congress to listen to their consciences, do what is right, and apply the reformed crack penalties retroactively to all offenders.

In 1986, in response to the emergence of a perceived crack epidemic and the high-profile death of college basketball star Len Bias, Congress adopted legislation to impose lengthy prison sentences for even low-level crack cocaine offenders. The weight of drug needed to trigger these sentences was 100 times lower for crack cocaine defendants than for powder cocaine defendants.

Over the past two decades, the grounds cited for treating crack so differently were undermined by extensive research, analysis, and experience. Experts explained that crack and powder are chemically similar and have similar effects on the body. Law enforcement officials, such as Asa Hutchinson, the former Drug Enforcement Administration head under President George W. Bush, noted that the violence associated with crack is the result of the cocaine trade and the neighborhoods in which it is most vibrant, not of any particular effect of the drug itself. Finally, and fortunately, we learned from experience that some of the worst fears expressed when the disparity was created -- for example, that so-called "crack babies" would result in a "lost" generation -- were overblown and never materialized.

Tragically, though crack did not create a lost generation, the sentencing law passed to combat it did. The strict five-year mandatory sentence imposed for just five grams of crack -- the weight of two pennies -- contributed to the mass incarceration of mostly young, African-Americans. Consider that while blacks make up just 30 percent of crack users, they represent 82 percent of all federal crack convictions. Since the law was passed in 1986 some 56,700 people have been sentenced to five and ten year mandatory minimum sentences for crack cocaine and many more to even longer guideline sentences.

Last year, members of Congress from across the political spectrum came together to pass a new law that reduced the infamous 100:1 disparity between crack and powder cocaine sentences to 18:1, a not-perfect but enormous step. They also eliminated the egregious five-year mandatory minimum for simply possessing crack cocaine.

Sadly, the reform, passed on the backs of people like Stephanie Nodd, does nothing to help them. Stephanie, an African American, was barely 20 years old when she began dating a crack dealer. A little over a month after they met, Stephanie was arrested and held accountable for over 6.5 kilograms of crack cocaine that was estimated to have been sold in the Mobile, Alabama area from July 1987 to August 1988. During the one month that Stephanie dated her dealer-boyfriend, she regrettably provided some assistance to his operation. Though Stephanie had no adult criminal record, she received a prison sentence of 30 years, longer than the dealer.

That Stephanie Nodd is still incarcerated makes her story outrageous, but not unique. Thousands of our fellow citizens are serving long sentences under a penalty scheme that has been overwhelmingly repudiated and eliminated by law. Keeping Stephanie and others like her in prison costs taxpayers millions of dollars, but does nothing to protect public safety. In fact, keeping individuals detained for so long is only likely to hurt their chances to reenter society successfully. Most importantly, keeping individuals like Stephanie in prison for decades because she was sentenced under a law everyone recognizes is unjust is simply wrong.

It is time for Congress and the administration to take the next step and apply last year's crack sentencing reform to all offenders, including those already serving time. It might not be politic or popular, but if our leaders search their consciences, they can be assured it is the right thing to do.