Congress Reworks Drug Laws

After decades of unequal treatment under an outdated drug law, the U.S. Sentencing Committee has decreased the vast disparity between the sentencing of crack cocaine and powder cocaine possession. However, providing trial attorneys for the 20,000 crack convicts seeking shorter sentences has proven easier for some than others.

The disparity was codified into the Anti-Drug Abuse Act during the 1986 drug war hysteria. The disproportion was derived from the erroneous belief that crack cocaine was more addictive and caused more violent crime than its powder counterpart. The result was a 100-to-1 ratio in sentencing, which was only recently reduced to 20 to1.

The shorter sentences have been criticized by the White House, which claims that the retroactive releases will cause an influx of “violent criminals” onto the streets—despite the fact that a majority of those who are eligible are non-violent. The comments reflect a mistrust of the judicial system by the executive branch, perhaps stemming from the misconception that criminals are simply released from their cells without a review of their cases.

With the intention of incarcerating major drug dealers, crack cocaine is the only drug for which mere possession can amount to a mandatory minimum sentence. However, two-thirds of those incarcerated are considered low-level dealers, while less than two percent are categorized as high-level dealers.

Additionally, 82 percent of the individuals sentenced on crack cocaine charges are African-American. When the law was enacted, powder cocaine was more expensive than crack cocaine; thus, most powder cocaine users were wealthy, white individuals.

Coupled with the negation of many of the myths about crack cocaine, the stark differences in the sentencing statistics of African-American and Caucasian cocaine users may reveal a racial injustice in the sentencing system. According to a recent report sponsored by the Department of Justice, minority youth are six times more likely to be sent to jail for the same crime than their white counterparts.

U.S. District Court Judge David Carter, a UC Irvine lecturer on the legal implications of the drug trade, said, “People have started to recognize the disparity by race, and it’s a difficult thing to explain because the numbers are so disproportionately high.”

While the world attempts to remedy the sharp difference in sentence length, some of those behind bars remain uninformed about the rules.

As Judge Carter explained, “We worry that some of the defendants wouldn’t know enough to apply … [or] wouldn’t have representation,” or wouldn’t be appointed attorneys.

While the right to an attorney is incontestable, some federal judges, who are the only authorities for granting attorneys, are arguing that the retrials should be straightforward. Therefore, some consider the appointment of an attorney to be costly and unnecessary.

The introduction of an attorney can quickly become a high-stakes undertaking, which some judges see as superfluous. However, for poor convicts with little legal education, this decision is a set-back that pits the litigants against skilled prosecutors with long, detailed briefs and a superior knowledge of legal reasoning and procedure.

“I believe that each defendant is entitled to an attorney, but I can’t speak for somebody down in the Fifth Circuit. … I know that [California’s Central District] is taking a very strong position and making sure each one of them is represented,” Judge Carter said.

While the rules have changed to reduce what many interpret as an injustice, the application of the law is now in question. While the legislature stands on the side of the incarcerated abusers of crack cocaine, the responsibility for ensuring that the reduced sentencing is offered equally rests in the hands of the judges.

Despite the fact that the right to an attorney and the right to a fair trial are constitutional, the government’s right to be represented by a counsel as an impartial mediator of justice should be equal to an individual’s right to receive one.