Commission Recommends Drug Sentencing Changes

The U.S. Sentencing Commission has released a report that recommends changing sentencing guidelines for crack cocaine possession. Jesselyn McCurdy, Legislative Counsel with the American Civil Liberties Union, and Timothy Lynch, Director of the Cato Institute's Project on Criminal Justice, talk to Farai Chideya about the proposed changes and alleged racial disparities in drug sentencing.

FARAI CHIDEYA, host:

And our last headline takes us to Washington.

On Tuesday, the U.S. Sentencing Commission released a report urging the reform of federal cocaine sentencing policy. The current Anti-Drug Abuse Act was signed into law by President Ronald Reagan in 1988. Now, that requires that the distribution of five grams of crack cocaine and the distribution of 500 grams of powder cocaine carry the same minimum sentence: five years. In weight, five grams of crack weighs only the same as two pennies.

Supporters of the bill have long said it takes drug pushers off the streets early and for good. But critics, including in this latest report, argue against that current policy, saying it's filled our prisons with first-time offenders, it disproportionately affects black and low-income Americans.

For more, we're joined by Jesselyn McCurdy, legislative counsel with the American Civil Liberties Union, and Timothy Lynch, director the Cato Institute's Project On Criminal Justice. Cato is a Washington, D.C.-based libertarian think-tank. So welcome to both of you.

Mr. TIMOTHY LYNCH (Director, Cato Institute Project On Criminal Justice): Thank you.

CHIDEYA: So I'm going to start with you, Timothy. What exactly did the sentencing commission recommend?

Mr. LYNCH: Well in order - before we get into the details of the report, I think the listeners would benefit from a little bit of perspective. The criminal justice system in American is decentralized. That means most the government action is at the local level - the arrests, the prosecutions and the prisoners. We have about more than two million people in prison in the United States right now, and 90 percent of these people are held in state and local facilities. About 10 percent are in federal prisons.

And the U.S. Sentencing Commission basically studies the federal system and makes recommendations of federal sentencing policies to the Congress. And this latest report, as you mentioned, focuses on how the federal system deals with cocaine. And it talks about these disparities between very harsh sentences for crack cocaine and more lenient sentences for powder cocaine and whether or not these disparate ways of treating powder versus crack cocaine make sense. And the Sentencing Commission basically said it does not make sense and that Congress needs to make changes.

CHIDEYA: So Jesselyn, I'm going to you. How do you interpret this recommendation?

Ms. JESSELYN MCCURDY (Legal Counselor, American Civil Liberties Union): I think that the recommendation, or the report, is basically an updating of several reports that the Sentencing Commission has done from 1995 to 2002, all of which have not justified the 100-to-one disparity between crack and powder cocaine.

So what the Sentencing Commission also did on May 1st was to take another step forward and to send up an amendment to Congress that would make the sentencing guidelines for crack cocaine more consistent with the five-year mandatory minimum statute.

And that was definitely a first step in the right direction. But even the Sentencing Commission - and many others around the country - acknowledge it's a very small and modest step. What really needs to happen is that Congress needs to act to eliminate the disparity between crack and powder cocaine.

CHIDEYA: Timothy, what is your organization, the Cato Institute's position on this? Your libertarian, that's - first of all, very briefly, please, describe what a libertarian is and also what's your interpretation of this is.

Mr. LYNCH: Well, you're right. Cato is libertarian. We - basically, when it comes to the criminal justice system, our focus is on the Bill of Rights and to make sure that governmental policies that are put in place to reduce crime do not dilute or undermine the Bill of Rights or the Constitution.

We have been very critical of the drug war in general. We think that the criminal justice system is a mess, that the drug war has completely swamped the criminal justice system with cases. And we need to get back to that fundamental question. I don't think sentencing reform makes much sense unless you have code reform. And that's what we need to look at with when it comes to the drug war.

The system is totally swamped and the politicians really don't want to address it. They want to spend billions and billions of dollars every year trying to expand the system a little bit, hire a little bit more police officers, judges, and build a little bit more prisons.

But, you know, they haven't stopped drugs from coming into the country. They haven't kept drugs away from our schools. All we get is more crime, corruption and curtailment of our civil and constitutional rights. So I think we need to rethink the drug war the same way we came to understand that alcohol prohibition didn't work.

Now, Congress isn't ready to do that. Everybody understands that. So there are some pragmatic things that can be done in the meantime, so that's what we've been pushing for at Cato. I mean, at the very least, we should stop the paramilitary drug raids on people's houses in the middle of the night. We should stop this ridiculous policy on medical marijuana where the DEA is threatening doctors and patients over, you know, wanting to use medical marijuana, you know, to…

CHIDEYA: Timothy, let me get to (unintelligible)

Mr. LYNCH: cure their medical ailments. And then we have to address the mandatory minimum sentencing.

CHIDEYA: You bring up a lot of other questions about the drug war. I want to bring Jesselyn in, though. Jesselyn, when you think about - let's just give a scenario from TV. My hometown of Baltimore is portrayed in "The Wire," a very popular show, and it's basically about drug dealers and cops, and all the other people who come into contact with drug dealers.

So say that you have someone who is of legal age, 18 or over, they start running crack cocaine on the street, they're arrested for possession or sales. First offense, what's going to happen to someone like that, and what could change in terms of the policies overall?

Ms. MCCURDY: In terms of the federal system, if they get caught up in the federal system, if you have as little as five grams of crack cocaine, they could get a five - they will get a five-year mandatory minimum sentence, very little leeway. Sometimes, there is some leeway if you're a first-time offender, but you have to fulfill several other criteria to be able to benefit from that.

So for a very little amount of drugs and for that amount of drugs you really could be a user versus, really, a dealer. And so, again, as Tim says, this war on drugs is really focused on the wrong area. We should be using federal resources to stop the flow of drugs into the country. The way we do that is have the federal government focus not on the people that you see portrayed in "The Wire," the street-level dealers, but to have the federal government focus on people who are importing the tons and tons of drugs in the country.

CHIDEYA: When you think about what works in terms of stopping people from using drugs and from selling drugs, do either of you - and I'm going to go to Jesselyn first and then to Timothy - do either of you have any solutions or any new approaches that you think work?

Ms. MCCURDY: Well, I think one thing that we have to really deal with and grapple with is the fact that oftentimes people, particularly in urban communities, or even not in urban communities - sell drugs as a source of economics or as a way of making money. And so, if there are not opportunities in their communities to have jobs, to support their families, then oftentimes they turn to selling drugs. That's one thing we need to deal with. We need to make sure people have the opportunities, as well as the educational opportunities to be able to qualify for decent jobs, so that they can support their families.

CHIDEYA: Timothy, we have to be brief, we're almost out of time. Your thoughts.

Mr. LYNCH: Well, again, I don't think the criminal justice system is the answer. I mean, the dirty secret when it comes to the drug war is that when a family member or a friend of a politician has a drug problem, that person - they don't call the police and to get that person over to jail. They try to get that person who has a drug problem into a treatment facility like the Betty Ford Clinic. But too often for too many people, like the people in Baltimore, they get caught up in the criminal justice system. And we have to end this hypocrisy and end this counterproductive drug war.

CHIDEYA: All right. Well, Timothy Lynch directs the Cato Institute's Project on Criminal Justice, and Jesselyn McCurdy is the legislative counsel for the American Civil Liberties Union. Thank you both so much.

Ms. MCCURDY: Thanks for having us.

Mr. LYNCH: Thank you.

CHIDEYA: And they joined us from NPR's D.C. headquarters. And just ahead, we talk sports safety with Dr. Tony Strickland and the Department of Justice fires back at a story that we aired earlier this week.

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