Beyond The Fair Sentencing Act

this year's historic vote in congress to scale back the harsh & racially disparate mandatory sentences for federal crack cocaine offenses was a watershed event in the movement for a humane approach to american drug policy. the fair sentencing act expects to benefit about 3,000 defendants annually, with an average sentence reduction of 27 months.

defendants convicted of possessing as little as five grams of crack - the weight of two pennies - no longer receive a mandatory five years in prison; the quantity-based sentencing disparity between crack & powder cocaine offenses has been significantly reduced. the true value of the new law will be seen, however, only if it helps secure widespread drug policy reform.

as welcome as the new reforms are, they leave in place the broad structure of mandatory sentencing for most drug offenses, under which judges have no discretion to weigh mitigating circumstances such as the defendant's age, history of abuse & parenthood. as such, the current drug policies have produced the most bizarre outcomes: in 2004, a 55 year prison sentence was imposed on weldon angelos, a 24 year-old music producer in utah with no prior felony convictions.

on three separate occasions angelos sold about $350 worth of marijuana to a police informant. at each sale, angelos possessed a gun, which he neither used nor threatened to use. yet under the terms of federal mandatory penalties, judge paul cassell, a george w. bush appointee, was required to impose what was essentially a life sentence, which he called "unjust, cruel & even irrational."

in recent years states across the nation have re-evaluated their excessive sentencing policies. michigan's extremely punitive "650 lifer law," whereby even a first-time offender convicted of selling 650 grams of cocaine or heroin would receive a life sentence without parole - the same as for 1st-degree murder - was finally scaled back in the late 90's after being on the books for 27 years. former republican governor william milliken, who signed the law into effect, called it "the worst mistake of my career." similarly, the rollback of new york's notorious rockefeller drug law in 2009 marked a milestone after decades of vigilant campaigning.

the federal crack reform continues this incremental move towards just sentencing policies, but there is more work to do. drug courts, for example, have proven to help divert low-level offenders into treatment rather than prison, but many of them impose strict criteria for admission, often focusing on cases in which prison terms would be unlikely to be imposed even without the program.

school-zone drug laws, imposed with the inarguable goal of reducing drug sales to children, often apply as well to drug sales between consenting adults. this has been a predictable racial impact, because large portions of densely populated urban areas, disproportionately comprising communities of color, lie within a school zone. in new jersey, 96% of such penalties were imposed on african-americans or latinos, an outcome which this year persuaded the legislature to restore discretion to judges in such cases.

the first test of the impact of the fair sentencing act will come when the u.s. sentencing commission votes on whether to apply the guideline changes retroactively to the thousands of people who committed their crack cocaine offense before the bill was signed. additionally, the commission's report on mandatory sentencing, due out in 2011, may help to strengthen the long-standing & much documented argument about excessive punishments.

ultimately, the scope of reform can be measured only by our ability to level the unbalanced playing field in addressing substance use. while the so-called war on drugs has been waged for decades, it is actually two distinct wars. in well-heeled (read: white) communities substance use is treated as a public health issue best served by prevention & treatment. in low-income communities of color, substance use is often viewed as a criminal justice problem to be solved with more police, prosecutors & prisons.

our challenge is to implement drug policy broadly, fairly & rationally.