In 1986, what was happening with cocaine and crack?
Gelacek served on the U.S. Sentencing Commission from 1990 until 1998, and served as its Vice Chair from 1994-98. Currently, he is practicing law in
Washington, D.C. During his tenure, the Sentencing Commission issued a
recommendation that penalties for crack and powder cocaine be equalized
to remedy what many saw as an unfair disparity in sentencing. Congress rejected
this recommendation. This is the edited transcript of an interview conducted in 2000.
You had people talking about the allegedly tremendous amount of violence
surrounding the crack cocaine traffic. You had a hysteria built up that
politicians have to respond to. And they did. Their response was to turn to
tougher sentencing. Look at quantities of drugs and try to disassociate what
was actually going on from the quantities. What we wound up with was an awful
lot of people going to jail. And that's still going on. . . .
There was a lot of association of crack to violence. But when we looked at it,
what we found is what's true with any new drug that comes on the market. The
violence that's associated with the drug is not people who use the drug going
out and committing crimes on innocent bystanders, although some of that occurs.
Most of the violent crimes associated with crack cocaine had to do with setting
down trafficking patterns, and who was going to stand on what street corner.
Once that settled out, the violence died down.
There was a lot of bad information that went around, and it all hit at the same
time. And the media was part of that; the politicians were part of it.
Everybody was part of it. There was a genuine concern, with a lot of bad
information. What I fault the politicians for is, now that they know the
facts, now that they've looked at the outcome, they won't do anything about it,
and it's just not fair. Crack cocaine penalties and sentences surrounding them
are not fair.
How were crack sentencing guidelines developed?
If you go back and look at the Congressional Record, you'll see that they
tossed around all kinds of numbers for ratios. They ultimately settled on a
100-to-1, and I don't remember where that came from. I think they plucked it
out of the sky. They talked about 20-to-1, 50-to-1, 25-to-1. In the initial
ratios between powder and crack cocaine, no one talked about 100-to-1. That
came about as a one-upsman contest between the House and the Senate--who could
be tougher on crack cocaine. And they both proved they could be very tough.
What was the goal of mandatory minimums?
If you talk to people in the federal judiciary, there was a tremendous amount
of resistance to mandatory minimums and sentencing reform in the judiciary.
Judges will tell you, "Look, I'm fair in the way I sentence people. It doesn't
make any difference whether you're black or white." And to a large extent,
that was true.
There was a cultural bias in sentencing in this country. That's what led to
sentencing reform. Reform took the course of mandatory sentencing--mandatory
minimums, everybody goes to jail. We wanted honesty in sentencing. We wanted
the public to no longer worry about how long somebody actually went to jail for
if they got a ten-year sentence, they did ten years. What we wound up with is
a sentencing system that's based on quantity and conspiracy in the drug area,
and that leads to enormously lengthy sentences. You can go to jail for life in
this country very easily. . . .
Where we've taken drug penalties is absurd, in my estimation. It's not fair.
We've gone to punishment as a first resort in this country. It ought to be the
last resort. The last thing we should do is take someone's freedom away from
them. I know they committed a crime. I know they're criminals, but we don't
need to lock up everybody that's involved in the drug trade. They're not a
danger to society. There are ways to deal with some of these people other than
locking them up.
We know treatment works. We don't spend a lot of money on treatment. We know
that education works. We don't spend a lot of money on education. One thing
we know that doesn't work is incarceration. We don't cure anybody by putting
them in jail. All we do is take them off the streets. It's a pretty effective
deterrent for one individual, and it makes people feel safer about whether or
not that person is going to be back in their community, but it doesn't change
You could sit around in a social setting at a bar with your friends and find
yourself taking a ride from a friend of a friend, who happens to have 50 kilos
of cocaine in his trunk that you know nothing about. You get stopped because
the DEA or someone's been watching this individual. And, lo and behold, you're
in the car with your friend and the driver, and there's 50 kilos of cocaine in
the trunk. Now, you didn't have anything to do with it. You didn't even know
it was there. But the way the sentencing system in this country works, we give
people credit for substantial assistance to the authorities. The driver's
going to say that you were part of the conspiracy, because he's going to want
to do everything he can do to reduce his sentence. Your friend will
probably claim you were a part of it if he knew about it or she knew about it.
You're left holding the bag. And if you're holding a bag for 50 or more kilos
of cocaine in this country, you're going to go to jail for a long, long period
· For more about the process by which drug defendants bargain to decrease
their sentences by providing law enforcement with information on the drug
trade, see the web site for FRONTLINE's "Snitch."|
What is an example of the effect of mandatory minimums?
The Curry case in Washington. A young man who was a basketball player got
involved in a situation where he had absolutely no idea what was going on.
Knew virtually nothing, and he's a little bit intellectually challenged. He
got involved with some people that were trafficking in narcotics. When that
conspiracy was broken up by the authorities, he got the full weight of all the
drugs involved and is doing some 20, 25 years in the federal jail now.
It's a sad story, because he really didn't know what was going on. He did the
stupid thing; people do stupid things. You shouldn't have to go to jail for 20
years for being stupid. . . . Look at how we deal with murderers and everybody
else in this country. Violent offenders get out quicker than low-level drug
dealers do. That's not right. . .
I can't tell you the number of politicians that I've sat with who, in the
privacy of their office will say, "This is just not right. We know it's not
right. But, politically, there isn't a whole lot we can do about it because
everybody wants to be tough on crime. Until the public attitude changes, we're
not going to change." I just wish there was more courage involved in the drug
area because we need to change this. . . .
Whoever's got a lawyer or whoever has some street sense, there's a race going
on to see who can get to the prosecutor first to roll over on as many people as
they can, because they're going to get the biggest break. They might not even
go to jail. The real reason why quantity-driven guidelines and conspiracy laws
are absurd is because it focuses law enforcement's attention on the lowest
level of the drug trade, the guy standing on the street corner. And law
enforcement will tell you that, "Well, that's why we arrest those people,
because we want to work our way up the chain." That's okay, if you want to do
that. But the penalties ought to be based upon what your role in the
conspiracy was. If you're just dealing in two or three nickel bags, that's
what you ought to be charged with. That's what you ought to be penalized for.
. . . The Sentencing Commission did a public opinion survey, three years ago,
maybe. We found that people wanted to be tough on crime but what they thought
was tough and what the guidelines was tough were two different things,
particularly in the drug area. . . .
What is your assessment of the costs of the current prison situation?
The prison population is out of control. We can't build jails fast enough.
The cost is astronomical. What's scary about the prison problem in this
country is that it's becoming a business. We're putting prisons online every
month in this country. Sooner or later, the public is going to understand that
it costs a tremendous amount of money to keep these people in jail for long
periods of time. . . . Law enforcement does not focus on people who traffic in
powder cocaine. They're still not going to be out chasing around the suburbs
or the boardrooms of corporate America or anyplace else. . . .
The other thing we know is that treatment works in the drug area. But our
response is, "Lock 'em up." Our response to everything is, "Put somebody in
jail." There are better ways to go about it, and there are cheaper ways to do
it. There are alternatives to incarceration that we ought to try. . . .
Is our treatment of drug offenders related to race?
The commission issued a report that said that there was no intent to create a
racial impact. There is a racial impact. It is discriminatory. Ninety-five
percent of the people that go to jail for trafficking in crack cocaine are
either black or Hispanic. The majority of them are black, probably ninety
percent of them. And there's another five percent that are Hispanic. And I
want to tell you, if it were the other way around, if ninety-five percent of
the people doing five years or more in jail for trafficking in crack cocaine
were Caucasian, we wouldn't be sitting here talking about it, because the law
would have never passed in the first place or it would have been gone a long
time ago. . . . You don't have to be a rocket scientist to figure out that
there is a racial overtone. And we haven't done anything to change that. I
don't think Congress sat down and said, "This'll really impact on the black and
Hispanic community." But the fact remains that it does.
There's a logical reason for that. It's the best use of their resources. If
you can go to an urban area and go to a narcotics trafficking area and make ten
arrests in one night, that's what you're going to do. You're not going to go
out to Great Falls, Virginia. There's just as much drugs in suburban America
and rural America as there is anyplace else. But where you have to spend
months trying to figure out where those drugs are and who's dealing in them and
chasing around to different people's homes, it costs a lot of money in
resources to do that. So nothing will change. . . .
What was the Sentencing Commission's recommendation for crack
The commission recommended that we equalize penalties for crack and powder
cocaine. That would have meant that if you trafficked in 500 grams of powder,
you get five years. If you trafficked in 500 grams of crack you get five
years. Same ratio.
How rare is it for Congress to overturn a commission's
It's only been done once. Of all the amendments that have been sent to
Congress--and there have been some 500 or 600 amendments to the guidelines
since their inception--they've only rejected them once. . . . They were
willing to step on our suggestions in changing the crack cocaine penalties. It
only happened once, and probably will never happen again because they leave the
amendment process pretty much alone and accept the view of the Sentencing
Commission. That's why they put those people in place. This one was just so
politically charged that they didn't feel they could go along with it. . . .
It's significant that Congress rejected the amendments in the crack cocaine
area, because they'd never done it before. They allowed the Sentencing
Commission to function as a body of experts and bring that expertise to bear
upon the system. . . . By rejecting the Commission's recommendations in the
crack cocaine area, in many ways, it becomes a useless exercise, because the
message that is sent is, you guys are okay in the sentencing area as long as we
agree with what you're doing. Well, sometimes you have to be in front of the
train. Sometimes you have to lead the public's opinion instead of reacting to
it. . . .
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