The U.S.'s system of checks and balances is under seige, but it was still lurching along late in December as the Supreme Court disappointed the White House with a ruling in a crack case. In a 7-2 decision, the justices said judges did not have to stick to federal guidelines that prescribe the same sentence for the sale of five grams of crack as for the sale of 500 grams of powdered cocaine.
The 100-to-1 ratio has long been the target of outraged protests by people opposing mandatory minimum sentences, and by black community leaders and lawmakers, who often had the crack laws in mind when they said that the war on drugs was really a war on young black men.
Among the latter is state Rep. Ben Swan of Springfield, who has been fighting the disparity ever since the law mandating it was passed in 1986. It was an opportunistic measure, pushed through without much study after basketball star Len Bias's death from an overdose of cocaine sparked a move by Democrats—led by legendary Rep. Tip O'Neill of Massachusetts—to one-up the Republicans by appearing tough on drugs. By 1995, hundreds of black people had been charged with crack-related crimes under the law, but no white people.
That year the U.S. Sentencing Commission recommended reducing the 100-to-1 disparity, but Congress refused. In 2002 the Commission repeated the recommendation, pointing out that facts did not bear out the alleged connection between crack and violence that had been used as an argument for the disparity.
In the year 2000, the Commission found, 75 percent of crack offenders had used no weapons. Furthermore, its inquiries showed, crack arrests seldom netted important figures in the drug trade. Other findings cast doubt on earlier beliefs that crack was vastly more addictive than powdered cocaine.
But a major concern of the Commission was that "the overwhelming majority of offenders subject to the heightened crack cocaine penalties are black, about 85 percent in 2000. This has contributed to a widely held perception that the current penalties structure promotes unwarranted disparity based on race."
Front and center in the case that brought the High Court's new ruling was a black man, Derrick Kimbrough, who had been convicted on charges involving crack and powdered cocaine in Virginia. The guidelines called for a prison term of 19 to 22 years because of the crack; the trial judge gave Kimbrough 15 years, citing the Commission's concerns that the crack law is most often applied to minor offenders, especially minority members. A federal appeals court struck down the judge's ruling, but the Supreme Court held that the judge had not abused his discretion.
On his way home from the Conference of the National Caucus of Black State Legislators in Little Rock, Ark., Swan called the Advocate to say that the Supreme Court ruling was "a major move in improving the criminal justice system." The notoriously disproportionate 100-to-one ratio was politically unassailable in its early years, Swan said: "Some of us have been trying to change these sentencing guidelines and we had difficulty because there are people in both parties who fear being seen as soft on crime."
And it wasn't just a liberal vs. conservative issue, he explained: "It is the quasi-conservatives that I have trouble with. If you are truly conservative, you will try to correct disparities in the law. I've been fighting this for 15 years or more. Sometimes we live long enough to see progress made."
