March 8, 2009 -- San Francisco Chronicle (CA) New Look At Sentencing Guidelines For Cocaine By Claire Cooper

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Willie Mays Aikens has returned to Kansas City, where he's still a star. He's worked in construction and hopes to land a job with Major League Baseball, maybe as a counselor, he says, "talking to people about what drugs can do to a person."

People in Kansas City still talk about Aikens' four home runs for the Royals in the 1980 World Series. They seem ready to forgive the crack cocaine bust that earned him a 16-year prison term.

"It takes a big man to step back into the limelight after such a dark path," wrote one blogger.

Aikens' path was dark indeed, but not because his crime was large. The drug sale that sent him to prison was 64 grams, about a quarter cup. The federal cocaine sentencing statutes treat that much crack the same as a bucket of cocaine powder, the material from which crack is produced.

Aikens' case exemplifies all that's gone wrong because of these federal sentencing laws: The focus on petty crimes. The distortion of priorities in the war on drugs. The lopsided impact on African Americans -- the 83 percent of federal crack defendants who are black, though a federal health survey found most crack users are white.

The problems have been documented for years. Now it's time for a change.

Finally, key congressional members seem to be in a negotiating mood, and the Obama administration wants the crack/powder disparity eliminated. In the last session of Congress, then-Sen. Barack Obama co-sponsored a bill introduced by then-Sen. Joe Biden to do just that.

The same bill is on the table again. HR 265, introduced in the House by Texas Democrat Sheila Jackson Lee, would increase federal penalties for big-time trafficking while reducing them for possession or dealing in trivial quantities of crack -- offenses that should be left to state prosecutors or public health officials.

Cracking down on kingpins was the idea all along. When Congress established the crack sentences in 1986 and 1988, it expected to lock away major drug traffickers who were rumored to be preying on African American neighborhoods and creating an epidemic of crack-fed violence.

Support for the legislation crossed every line -- left, right, black, white. In signing the 1986 bill, President Reagan named Rep. Charles Rangel of Harlem as one of its "real champions," along with Strom Thurmond and the president's wife, Nancy.

But Congress got it wrong in every way. As the U.S. Sentencing Commission reported in 1995, "the stereotype of a drug-crazed addict committing heinous crimes" was simply fiction. And the crack laws shifted the focus to drug quantities that a neighborhood pusher might carry, not a national or international trafficker.

Commission records show that more than half of all crack offenders in the federal courts are street-level distributors, with crack weighing less than an ounce. The average crack case is less than 2 ounces. In the San Francisco-based judicial district, it's even smaller, according to the latest 2006 statistics.

So irrational are these laws that a crack retailer like Aikens could be punished more severely than his powder cocaine wholesaler, as the commission has pointed out.

The undercover agent who busted Aikens understood that. Aikens had offered her cocaine powder, not crack. According to the court's pre-sentence report, she told him "she thought he was going to get crack cocaine." So he made some for her. Crack is produced at the neighborhood level by cooking cocaine powder with baking soda and water.

Federal law enforcement has focused on neighborhood dealers, says Eric Sterling, president of the Criminal Justice Police Foundation, because "it's easy for U.S. attorneys to try cases against low-level offenders" but hard to find informants to testify against "genuine high-level traffickers."

Sterling, who was counsel to the House Judiciary Subcommittee on Crime when the crack/powder sentencing formula was established, says Congress "blundered completely." It failed to understand how much crack would signify major trafficking.

The mistake has been widely acknowledged in Washington, but reform has been stymied by congressional disagreements over the best way to correct it. Recently, the U.S. Sentencing Commission took matters into its own hands.

For two decades, the commission's guidelines reflected a decision by Congress that a crack sentence should equal a sentence for 100 times as much powder cocaine. But then in November 2007, the commission ratcheted down its crack guidelines by 20 percent. It made the change retroactive, allowing judges to review the sentences of many defendants already serving time.

As of six weeks ago, 12,723 inmates had been re-sentenced -- and many of those have been released.

But the reforms by the Sentencing Commission are restricted by mandatory minimum terms set by Congress -- five years for possession or sale of five grams of crack and 10 years for sale of 50 grams. Eighty-two percent of federal crack defendants are serving those mandatory minimum terms, which only Congress can change.

It's time to do so. As Clyde Cahill, a St. Louis federal judge, said in a 1994 crack case, "If young white males were being incarcerated at the same rate as young black males, the statutes would have been amended long ago."

Or, from the more personal perspective of Stacey Candler: "We're talking about somebody's life here. It doesn't take 10 years for you to teach that person a lesson."

Candler served more than 10 years for the crack that her boyfriend kept in their Fresno home. She was released from the federal women's prison in Victorville (San Bernardino County) a year ago, in the first wave of inmates to have their sentences re-evaluated under the Sentencing Commission's revised guidelines.

Originally, Candler was sentenced to almost 16 years for 2 kilograms of crack. She knew the crack was in the house, she says. She didn't expect to be held criminally responsible for it. Her boyfriend got 25 years to life.

She was 22, a nursing student and hospital aide living a modest lifestyle. She had no criminal record.

"I was just a young girl looking for love," she says. She hoped that her boyfriend, six years older, would follow her good example, "but, of course, it didn't turn out that way."

Candler is back in Fresno. She's working and going to college, now majoring in social work. She's confident about her future. "I have the family support and I have friends," she says. "I don't have kids, thank God."

The inmates who do have kids are Candler's saddest prison memory. She recalls the Children's Days that she would help organize once a year, how the kids would get to see their mothers' prison cubicles: "This is where Mommy eats and sleeps now."

As for Aikens, he got out of prison last June, five years early. At 54, he's getting his feet on the ground, he says.

He visited with his older daughter for the first time in eight years -- she was 5 when he went to prison for selling a couple of ounces of crack cocaine. His younger daughter, 4, when he went away, won't see him yet. He's trying to build a relationship with her.

He blames only himself for getting in trouble. "All of us make a decision," he says. But he also knows that the stiff crack sentencing laws make no sense. As he puts it, "The ones who have control of this have it wrong."

BUSTS BY THE NUMBERS

Median drug weights for federal crack cocaine cases

Nationwide - 51 grams (1.8 oz.) - 4,262 cases

Los Angeles - 120 grams - 27 cases

Sacramento - 86.5 grams - 35 cases

Chicago - 76.3 grams - 79 cases

New York - 56.3 grams - 78 cases

Seattle - 45.7 grams - 30 cases

San Francisco - 30.2 grams - 18 cases

Miami - 30.2 grams - 104 cases

Note: San Diego was not included because there was only one case (33 grams)

Source: U.S. Sentencing Commission, based on 2006 data

LOCAL DISTRICTS STRICT ON CRACK QUANTITIES

Federal prosecutions target petty crack cocaine cases throughout the nation, destroying the lives of many small-time offenders and squandering resources in the war on drugs.

The U.S. Sentencing Commission tallied all 4,262 crack cases for 2006. It calculated a median drug quantity of 1.8 ounces.

Surprisingly, among the strictest jurisdictions was the Northern California district based in San Francisco. A single ounce of crack was involved in the median case here, enough to cover the bottom of a teacup.

In fact, crack quantities in Northern California prosecutions were the lowest in the state -- and 17th lowest among the 94 federal judicial districts in the country.

The smallest cases were in Idaho and the largest in Wyoming.

Claire Cooper is an East Bay freelance writer. Her reporting was supported by the Justice and Journalism Fund, established by USC Annenberg's Institute for Justice and Journalism with Ford Foundation funding.

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