TOPICS > Politics

New Drug Law Narrows Crack, Powder Cocaine Sentencing Gap

August 3, 2010 at 12:00 AM EDT
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President Obama signed a new law Tuesday that closes a decades-old gap in federal sentencing that led to much stiffer penalties for crack cocaine cases than ones involving powder cocaine. Gwen Ifill speaks with two experts about the implications.

GWEN IFILL: President Obama signed a new law at the White House today that will close the long-disputed gap in federal sentencing for crack vs. powder cocaine. Since 1986, defendants caught with 500 grams of powder cocaine have gotten the same punishment, five years in prison, as defendants convicted of possessing only five grams of crack cocaine. That’s a sentencing ratio of 100-1.

The new law reduces that dramatic disparity, cutting the ratio to about 18-1. And, for the first time in 40 years, Congress is rolling back a mandatory minimum sentence already on the books. The law won rare bipartisan support.

Here to discuss its implications are former Arkansas Congressman Asa Hutchinson, who served as the head of the Drug Enforcement Administration under President George W. Bush, and Judge Reggie Walton, who sits on the U.S. District Court bench for Washington, D.C.

Welcome to you both.

ASA HUTCHINSON, former drug enforcement administrator: Thank you.

GWEN IFILL: What was the original reason?

I will start with you, Judge Walton.

What was the original reason for this disparity becoming law?

JUDGE REGGIE WALTON, U.S. District Court, Washington, D.C.: Well, at the time it became law, clearly, crack cocaine was having a devastating impact on many parts of our country, especially many of our inner-city communities.

There was, in fact, a lot of violence associated with crack cocaine, because it was an effort on the part of various drug organizations and individuals to garner the market in those particular locations. And, as a result of that, there was a lot of violence.

Also, there was a misperception that crack cocaine was something different chemically than what powder cocaine was. And it was because primarily, I think, of those two factors that we ended up with the disparity that we have.

GWEN IFILL: I remember this, Asa Hutchinson — and I’m sure you do, too — that we heard lots of talk of crack babies and other terms which gave crack this horrible kind of — this horrible idea, this idea that it was far more dangerous than heroin, far more dangerous than anything on the market.

Why was that so pervasive?

ASA HUTCHINSON: Well, it was a reaction. First of all, there were serious problems with crack invading communities and the violence that was associated with it.

But we were not able to distinguish those cases that had violence vs. those cases that someone was just using crack and similar to someone else using powder cocaine. And a lot of the turmoil and concern was created by the death of Len Bias, former, I believe, Maryland basketball player, that caused Congress to enact this tough mandatory penalty.

And, so, this is one of those good occasions in Congress where you can actually do something to restore some fairness in the system.

GWEN IFILL: Why did the attitudes begin to shift on this?

ASA HUTCHINSON: I think a lot of it was education.

I remember when I was in Congress 14 years ago advocating for reducing this disparity, and — and many of my colleagues didn’t want to sign on to this because they didn’t want to be perceived as being weak on crime. They didn’t want to reduce the penalties for cocaine.

And so it had to take a lot of very difficult stories to educate them, as well as the science catching up and the law enforcement community expressing, we need to change this for fairness.

GWEN IFILL: Judge Walton, as someone who had to hand out these kinds of sentences, why — why wasn’t the solution to increase the powder — the penalty for possessing powder cocaine, rather than decreasing the penalty for crack cocaine?

JUDGE REGGIE WALTON: Well, there were some who advocated that.


JUDGE REGGIE WALTON: However, I think the sentences that we are meting out in these circumstances are very stiff sentences. And we have an overwhelmed number — an overwhelming number of people in our prison system now, and clearly don’t need to exacerbate that problem by increasing the population.

I think, to a large degree, it’s the certainty of punishment in these type of situations that is more important than the severity of punishment.

GWEN IFILL: And I want to give you some numbers that you know well, that 80 percent of crack defendants are African-American and 20 percent — well, they’re 20 percent more likely to be sentenced. Why this racial disparity?

JUDGE REGGIE WALTON: Well, it wasn’t intentional. I mean, clearly, there’s a socioeconomic component to why crack cocaine is used and trafficked in minority communities to a greater extent. And that’s because crack cocaine is a lot cheaper than powder cocaine and, therefore, a lot more accessible to people who don’t have significant financial resources.

And, as a result of that, you have a large number of poor people, to a greater extent, who are using crack, as compared to powder.

GWEN IFILL: We should probably describe that crack is — is actually a rock-like substance which comes from baking it or cooking it with baking soda. So, it actually was a different substance, but the same basic chemical component.

So, big drug traffickers weren’t getting caught up in this?

ASA HUTCHINSON: Well, I think that’s another benefit, that you can concentrate your resources, federal resources, on serious drug trafficking organizations and those that are significant dealers.

If you’re looking at five grams of cocaine, it could be somebody going out for a weekend party. Five grams will last you for a weekend. And now it’s been increased substantially, so you’re actually going to be dealing with those that are more major traffickers or can lead to those trafficking organizations.

So, it’s a good use of resources. I think, very important, though, this is not a weak-on-crime initiative. What we can do now — and the judge will be able to do it — is, whenever you have characteristics of violence associated with drug trafficking, you can still enhance their penalties. And, so, if it’s violence associated with it, you’re going to have tougher penalties. And that’s what we have to concentrate our efforts on.

GWEN IFILL: Does it change your job?

JUDGE REGGIE WALTON: It does. It makes it easier, because, to be very candid, it was very difficult to mete out some of the sentences that we had to when you felt that some of those sentences were inappropriate.

So, yes, it does make my job somewhat easier. But I do want to emphasize that, you know, crack cocaine is still a major problem in our society. There — even though it’s the same chemical substance, because of the way it’s used, it is more addictive than powder cocaine. So, it does have a significant impact.

GWEN IFILL: How many — speaking of impact, how many people would be affected by this change in the law? It’s not retroactive. It doesn’t — people who are currently in jail wouldn’t be affected.

ASA HUTCHINSON: It’s my understanding that it’s — read the statistic of about 4,000 people it would impact. The judge might correct that.

But it’s interesting. On the retroactive aspect of it, I think the sentencing commission did recommend that at one point, in terms of fairness. But that wasn’t part of the law. It was silent on that point. So, it could be that the sentencing commission can still address that down the road.

GWEN IFILL: Is that your understanding as well?

JUDGE REGGIE WALTON: According to the sentencing commission, it will be about 3,000 defendants per year who would be impacted. And, on average, the sentences would be about 27 months shorter than otherwise would have been the case under the old law.

GWEN IFILL: What is it about this particular legislation, which we had a unanimous vote in the Senate, a voice vote in the House, the president signed it with very little fanfare, and no outcry, as far as I could tell? What is it about this issue?

ASA HUTCHINSON: Well, people came together and realized it was the right thing to do.

And it’s really the best of Congress whenever they can forge a bipartisan compromise on an issue of fairness, Senator Durbin, of course, on the Republican side, Senator Sessions, who I served with as United States attorney, a federal prosecutor. And he stood out and said, we ought to do this. It’s the right thing. And when they forged that compromise, their leaders, others in the parties, said, we will support you on this.

So, it was good to see that bipartisan compromise effort in passing this legislation.

GWEN IFILL: You say compromise, which is the reason I assume there was — this disparity wasn’t erased completely. It went to 18-to-1 disparity, but not 1-to-1.

JUDGE REGGIE WALTON: There was at least the administration — there were others who were advocating that it should be 1-1. The court system has never taken a position on what the disparity should be, if any.

We did believe, however, that the 100-1 was obviously out of kilter and needed to be — needed to be addressed. But I think, as indicated, I — you know, it’s a hot-button issue, because nobody wants to be perceived as being lenient on crime.

And I would have never taken up this cause on behalf of the court system if I thought that that’s what it was, because anybody who knows me knows that I’m not lenient when it comes to crime and punishment.

GWEN IFILL: But, yet, this has been talked about at least since Ronald Reagan was president, and we’re just getting it done today. What took the — what took so long?

ASA HUTCHINSON: Well, justice moves very slowly, but it had a fine result in this case.

And it has a great impact on people’s lives out there. And I hope that it — that not only the fairness is right for individuals, but for a system that has to trust the cooperation of people, of individuals and jurors that have to have confidence in the fairness. Law enforcement understand the importance of this.

As former head of the DEA, I think this will, in the end, help us to concentrate our resources, go after the serious traffickers, and hopefully build confidence in the minority communities again.

GWEN IFILL: Asa Hutchinson, former head of the DEA, former congressman, Judge Reggie Walton, thank you both very much.


JUDGE REGGIE WALTON: Thank you for having me.