The U.S. Sentencing Commission is supposed to see to it that defendants receive uniform punishments for similar crimes.
And while the Constitution gives Congress itself little responsibility for setting criminal penalties — domestic crime was supposed to be the concern of the states — it too, operates under a presumption that prison sentences should be reasonable and substantially equal.
For the past 20 years, both bodies have been failing miserably at meeting this standard in the “cocaine” theater of their proudly declared “War on Drugs.”
Although the “rush” experienced by drug users smoking cocaine processed into “crack” is reportedly more intense, the drug is chemically similar to cocaine consumed as a powder.
But — responding to one of those “drug of the year” panics which regularly assure us the republic has never faced a threat so dire as this year’s epidemic of marijuana, smack, speed, China White, crystal meth, black tar, “Angel dust,” crack, Oxycontin, Ecstacy, or whatever — Congress in the 1980s wrote into law a mandatory minimum five-year prison sentence for trafficking as little as 5 grams of crack cocaine — while such a sentence is triggered only when a user or dealer of powdered cocaine is found in possession of 100 times as much.
Since more than 80 percent of federal defendants sentenced in crack cases are black, while just over a quarter of those convicted of powdered cocaine crimes last year were black, this has had a predictably unbalanced impact on the racial profile of America’s prison population.
The Supreme Court weighed in Monday on a case which did not directly challenge those congressionally imposed sentencing guidelines, but did ask whether federal judges can consider the unequal impact of the “mandatory minimums” in issuing lighter sentences to crack defendants like Derrick Kimbrough, a black veteran of the first Gulf War, who was sentenced to only 15 years in prison, when federal sentencing guidelines called for him to receive 19 to 22 years.
In a baby step toward restored sanity, the high court ruled 7-2 that the lighter sentence was “reasonable.”
U.S. District Judge Reggie B. Walton of Washington, who served as a top drug policy adviser to the first President Bush, applauded the decision but called it a “minor fix” — which is an understatement.
Cocaine was legal for hundreds of years — it used to be a major ingredient in Coca-Cola. It is still legal for some medical uses, and will doubtless someday be generally legal again.
Yet armed forces veterans caught consuming this natural plant extract — or providing it to willing buyers — face decades in prison, longer than the sentences served by violent armed robbers — and the court calls this “reasonable”?
“Obviously the Supreme Court can’t rewrite legislation and they can’t rewrite the sentencing guidelines,” explains Judge Walton, who once advocated harsher penalties for crack cocaine crimes but believes the current law has gone too far. “The ultimate fix has to be done by Congress.”
But when Congress did nothing to end the segregation of public schools by race, the court threw out the entire machinery of school segregation, ruling that a de facto inequality of outcome trumped and invalidated any de jure assurance of “separate but equal.”
Other than guaranteeing employment for thousands of unionized prison guards, what has the “War on Drugs” accomplished? Has it made it harder for those determined to use these “bad” substances to find their personal plant extract of choice? Just the opposite: Since prohibition puts a premium on moving a more concentrated and thus more profitable product by weight, prohibition has replaced opium with heroin and old-style Coca-Cola with crack cocaine, the same way bootleggers aiming to maximize profit-per-boatload turned Americans from a nation of beer and wine drinkers into the Land of the Cocktail.
Other than giving us pride of place as the nation out of all the world that locks up the largest percentage of its own young men, the Drug War has been an expensive and embarrassing flop.
Meantime, where in the Constitution is the federal government authorized to regulate this trade, or any other part of the medical and drug industry? Nowhere.
If a Constitutional amendment (the 18th, since repealed) was required to authorize a federal war on liquor, when was the similar amendment ratified to authorize the “War on Drugs”? Never.
Here is a case where a net social good — freedom of choice, freedom of commerce — and the court’s responsibility to examine the underlying constitutional authorization for any set of laws fit hand-in-glove.
Justices Samuel Alito and Clarence Thomas dissented Monday, commenting that following this ruling “Sentencing disparities will gradually increase.”
What an unfortunately narrow and short-sighted dissent.
Even if they are in the minority, it would have been far more useful for the dissenters — supposed “strict constructionists” undaunted by popularity polls — to ask where Washington finds any grant of jurisdiction for its “War on Drugs” — and how any judge with a minimum of compassion and common sense can hold it “reasonable” to lock up a healthy young man for a quarter of his life — longer than the average sentence of an armed robber who cripples his victim, longer than the sentences served by many murderers — for the “crime” of consuming cocaine to get high while the guy next door, using the far more socially destructive drug called alcohol — is no longer considered a criminal at all.