WASHINGTON - Senior Justice Department officials said today
that disparities between sentences for distributing crack cocaine and powder
cocaine were far smaller than generally believed and that they would oppose
any changes in the law to reduce prison terms for crack offenses.
In the first statement of the Bush administration's position in the
debate about whether harsher sentences for crack cocaine unfairly punished
blacks, Deputy Attorney General Larry D. Thompson testified, "The current
federal policy and guidelines for sentencing crack cocaine offenses are
Mr. Thompson, the second-ranking official in the Justice Department,
the United States Sentencing Commission that it should not vote to change
the guidelines used to sentence crack cocaine defendants. If anything is
be done, he said, the sentences for powdered-cocaine offenses should be
The guidelines dictate terms based on the weight of the cocaine seized
from an offender. Critics have said the guidelines provide an astonishing
100 to 1 ratio because possession of five grams of crack cocaine mandates
minimum sentence of about five years in the federal system, whereas
possessing 500 grams of powdered cocaine would be needed to reach the same
The assistant attorney general for legal policy, Viet D. Dinh, said
analyzing the figures that way was misleading and led to the fallacious
assumption that the sentences for crack were vastly greater than those
involving powdered cocaine. Mr. Dinh said it was better to compare the
sentences for like amounts of crack and powdered cocaine.
His office studied 46,413 people convicted and sentenced under federal
guidelines from 1996 and 2000 using that method. Mr. Dinh said that on
average people convicted of possession of five grams of crack cocaine with
intent to distribute received sentences of 70.5 months and that people whose
crimes involved five grams of powder received on average a sentence of 13
months. That is a ratio of 5.4 to 1.
Mr. Thompson said some disparity was justified, because "higher penalties
for crack offenses appropriately reflect the greater harm posed by crack
"There are significant differences in the predominant manner the two
substances are ingested and marketed," he said. "Based on those differences
and the resulting harms to society, we believe that crack cocaine is an
especially dangerous drug, and its traffickers should be subject to
significantly higher penalties than traffickers of like amounts of
He also said crack cocaine was more associated with violent crime than
The racial part of the debate stems from the fact that crack is mostly
prevalent in African-American communities and that the powdered form is
typically used by white Americans. In essence, Mr. Thompson and Mr. Dinh
argued that the harsher sentences for crack cocaine benefited minorities
because the sentences acted as a deterrent to a substance that has ravaged
Ethan Nadelmann, executive director of the Drug Policy Alliance, a group
in New York that promotes alternatives to the war on drugs, said tonight
that the Justice Department policy was misguided.
"The government," Mr. Nadelmann said, "is pretending to be protecting
minority community. But its harsher enforcement of crack has never worked
out that way."
Mr. Nadelmann said it was difficult to compare like amounts of crack
powder because of variables like purity and volume.
Judge Terry Hatter Jr., a federal trial judge in Los Angeles who has
fiercely critical of the sentencing guidelines, said in an interview that
was disappointed in the government position.
"If there's any disparity," Judge Hatter said, "it should be the reverse.
There should be higher penalties for powder. I mean, you can't make the
crack form without having the powder first, and the powder comes from
Judge Hatter, who has challenged the guidelines in his rulings only to
reversed, said the government was associating crack with crime because it
was sold in poor neighborhoods where crime was already more prevalent.
The sentencing laws are a mix of statutes in which Congress has
prescribed mandatory minimum sentences for some specific crimes while the
sentencing commission's guidelines govern areas that Congress has not
addressed. The seven judges and one law professor who form the commission
are considering changes to lessen the disparities. But that effort may not
affect specific rules laid down by Congress like the five-year mandated
minimums for 5 grams of crack and 500 grams of powdered cocaine.
Two conservative members of Congress have introduced a bill to reduce
disparity from 100 to 1 in the five-year sentences. Legislation introduced
by Senators Orrin G. Hatch of Utah and Jeff Sessions of Alabama, both
Republicans, would make the ratio 20 to 1 by raising the amount of crack
that mandated a five-year sentence while reducing the amount of powdered
cocaine for the same sentence.
Senator Patrick J. Leahy, the Vermont Democrat who is chairman of the
Judiciary Committee, has also said he favors reducing the disparities. His
spokesman, David Carle, said tonight that the Justice Department was "coming
into this debate to the right of some of the most conservative members for
the Judiciary Committee," a reference to the Hatch-Sessions bill.