Obama Expected To Ease Crack-Cocaine Sentencing Disparities

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Thursday, the U.S House of Representatives passed legislation to reduce the sentencing disparity between federal crack and powder cocaine sentences. President Obama is expected to sign this into law. To get a sense of the impact of this legislation, and in particular what it means for those in communities of color, guest host Rebecca Roberts speaks with Michael Nachmanoff, Federal Public Defender for Eastern Virginia and Co-Chair of the Federal Public Defender Legislative Committee.

REBECCA ROBERTS, host:

This is TELL ME MORE from NPR News. I'm Rebecca Roberts in for Michel Martin.

Coming up, one woman's move to bring the Torah to the Western Wall led to her arrest in Israel. We'll speak with her.

But first, a look at an issue of justice here in the United States. Congress has now passed a law that reduces the disparities between mandatory sentences for possession of crack versus possession of powder cocaine.

For 25 years, a much smaller amount of crack has triggered the minimum sentence, disproportionately affecting tens of thousands of African-Americans. White offenders are more often caught with the powered form of the drug, which has a much higher threshold.

To get a sense of how the new law will impact those in communities of color and the process behind this change, we've called on Michael Nachmanoff. He is the federal public defender for the eastern division of Virginia. He's also the chair of the federal public defenders legislative committee. He joins us on the line from his office in Alexandria, Virginia. Welcome to the program.

Mr. MICHAEL NACHMANOFF (Federal Public Defender, Eastern Division of Virginia): Hello, thank you for having me.

ROBERTS: What exactly does the new law change?

Mr. NACHMANOFF: Well, the new law is a big change. What it does is it increases the quantity threshold that triggers the mandatory minimum for crack cocaine offenses. And so, where before it required only five grams of crack cocaine to get a five year sentence and the judge's hands would be tied. It will now require 28 grams of crack cocaine before the judge's hands are tied with that mandatory minimum.

For the 10 year mandatory minimum, it will require 280 grams, and that's up from 50 grams. And so this is a real big difference in what we're going to see in federal court in terms of the prosecution of crack offenders.

ROBERTS: So it doesn't change the minimum sentences in terms of their length. It just changes the point at which the decision is taken out of the judge's hands.

Mr. NACHMANOFF: Exactly. The triggering quantity. And that's what the 100 to 1 ratio was. It took 100 times more powder cocaine to get to that same triggering threshold than it did crack cocaine, 500 grams of powder cocaine and that has remained the same. That was the source of this tremendous sense of unfairness because such small quantities were resulting in such long sentences for a very, very low level street level dealers.

ROBERTS: So would you characterize this as a small step in the right direction? A revolutionary move? Somewhere in between?

Mr. NACHMANOFF: Somewhere in between. For 20 years, organizations like Families Against Mandatory Minimums and many other folks across the political spectrum have been fighting to correct this injustice that goes all the way back to 1986. The problem has been in this ratio, which was not based on any kind of empirical evidence and was the product of a political frenzy over the fear of crack cocaine.

The right answer is one-to-one. And Advocates for Justice have been fighting for a one-to-one ratio. This is a great step in the right direction. It reduces the ratio to 18-to-1. But it's an unfinished job. There are still a lot of people serving many, many years too much in prison because of the 100-to-1 ratio. They are not going to get relief because of this change in the law.

ROBERTS: It's not retroactive.

Mr. NACHMANOFF: It is not retroactive. And so this will affect people who are prosecuted after the president signs the bill into law and it will make a big difference in terms of their sentences and in terms of the choices that the Department of Justice decides to make in terms of who they prosecute. But it still leaves a lot of people serving too much time in prison. And that truly is an injustice that still needs to be remedied.

ROBERTS: Well, also, we should clarify this only affects those who are prosecuted at the federal level which is not the majority of these cases.

Mr. NACHMANOFF: Well, that's correct. And, in fact, almost all states have abolished the difference between crack and powder cocaine in terms of punishment. They treat powder cocaine and crack cocaine which are pharmacologically identical the same way. There are still some states out there that have a greater penalty for crack, but those ratios are even lower than 18-to-1.

For example, here in Virginia, the ratio is 2-to-1. And so out in the States this problem has been reduced significantly. It is the federal government that was unable to solve this political problem. And this really was a tremendous achievement because it was bipartisan solution to a problem that many people didn't think there was political will or political leadership to overcome.

ROBERTS: Well, there was someone who did speak against the law, Representative Lamar Smith of Texas. He's the top Republican on the Judiciary Committee. He said the 1986 law, the one that brought in this very low threshold for crack possession, was enacted to prevent violence.

He said: Why do we want to risk another surge of addiction and violence by reducing penalties? Why are we coddling some of the most dangerous drug traffickers in America? What's your response?

Mr. NACHMANOFF: Well, this is about as far from coddling as you could possibly imagine. People who are prosecuted in federal court for drug trafficking, whether it's crack cocaine, powder cocaine or other drugs are still facing serious and substantial penalties. The idea that crack offenders are more dangerous than other kinds of drug offenders simply has not been borne out.

In fact, the statistics show that the fear that crack cocaine would result in a lot more violence than other kinds of drugs just never came to pass. And the sentencing commission issued multiple reports with very solid evidence that were very persuasive and that ultimately resulted in this legislation, showing that many of the myths upon which the 100-to-1 ratio was based, were totally without foundation.

And I can't speak for the lone opposition or for the little opposition that has been articulated, but the overwhelming majority of folks that have looked at this issue from across the political spectrum, remember Senator Sessions in the Senate...

ROBERTS: We have to leave it there, I'm afraid. Michael Nachmanoff, federal public defender for the Eastern District of Virginia. Thanks so much.

Mr. NACHMANOFF: My pleasure. Thank you.

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