Congress scales back crack-powder disparity

Mark Osler discusses the crack-powder disparity at Harvard Law School

Since this post was published, the Dallas Morning News published a thought-provoking column by professor Mark Osler.

To the great relief of anyone who has ever witnessed a federal drug case, Congress has whittled back the infamous 100-1 crack-powder sentencing disparity to 18-1.

Personally, I have never understood the rationale for any disparity whatsoever.

Mark Osler, an Assistant US Attorney turned law professor (and Friends of Justice board member) played a key role in scaling back the sentencing disparity. 

Last year, professor Osler served as lead counsel in Spears v US, a case resulting in a Supreme Court ruling that sentencing  judges could categorically reject the 100:1 ratio in the guidelines.

I will allow Mark to explain the problem in his own words.   This brief quotation comes from Osler’s “More Than Numbers: A Proposal For Rational Drug Sentences”, a paper published by the Federal Sentencing Reporter.

While creating the terms of 21 U.S.C. § 841 in 1986, Congress clearly used the weight of the narcotics at issue as a proxy for the level of involvement of particular defendants, dividing them up between participants, “serious” traffickers, and “major” traffickers. For example, those distributing more than five grams of crack were considered “serious” traffickers and subjected to a five-year mandatory term, whereas those with more than fifty grams were “major” traffickers facing a ten-year minimum penalty.

This assumption, that the person actually holding the most drugs is the most culpable, ignores lessons that should have been learned from Al Capone. Capone was the key man in liquor trafficking, but he was not driving the truck full of booze. Similarly, those truly responsible for narcotics trafficking, those who create the distribution networks and are key to their success, are not the ones who carry, make, or sell the drugs. These functions are fulfilled by low-level subordinates, whereas those who are essential to the operation and retain much of the profit are the ones who manage financial details and organize the operation.

The problem with using weight as a proxy for culpability has over time become clear. The result is a system that is constructed to give long sentences to those with low-level roles: street-level dealers, couriers, and those with even more minor roles. According to the most recent Sentencing

Commission Report, 66.9 percent of those prosecuted for crack cocaine offenses in federal court were those committing these lower-level crimes. Even for powder cocaine the same holds true, with well over half of those prosecuted in federal court being classified as such low-level offenders.

In retrospect, few would dispute that weight is a lousy proxy for culpability. It leads us to lock up lots of unskilled labor in the drug market, while the narcotics trade thrives.

Within this system, what the crack/powder 100-to-1 ratio does is exacerbate the underlying problem of using weight as a proxy for culpability. Because powder cocaine is often only cooked into crack by the street-level dealer, the 100-to-1 ratio only amplifies the distortion already built into the system.

Osler’s critique suggests that scaling back the crack-powder discrepancy represents an important step down the right road–but just a step.  Our drug laws, state and federal, are rooted in a deeply flawed understanding of the drug trade.