I wish the National Review‘s Andrew McCarthy would stop to consider the implications of his own words. As he acknowledges, under The Sentencing Reform Act of 1984, possession of 5 grams of crack or 500 grams of powder cocaine were treated the same way: a mandatory prison sentence of five years was imposed. Now, consider the practical difference. A group of white suburban teenagers might purchase an “eight-ball” of coke to have some fun on a Saturday night. Possession of two eight-balls would be equal to possession of seven grams of powder cocaine. In other words, someone who brought a slightly more than average amount of coke to a party would have been subject to a five-year sentence if powder cocaine had been treated the way that crack was. Looked at another way, possession of five grams of crack was not a true indicator that someone was a a significant narcotics dealer, or a dealer at all. A crack addict might buy five or more grams at a time for simple convenience, or because they were buying some for their friends, too. So, the disparity wasn’t just that crack-dealing and coke-dealing were treated differently, but that the crack sentences netted a lot of people who were mere addicts or, at worst, couriers. Casual users of cocaine did not commonly possess 500 grams of it at any one time. Casual users of crack often possessed 5 grams at one time.
That’s why the following is so myopic:
Holder carefully talks about “non-violent” drug “offenders.” Obama riffs about “kids or individual users” supposedly “lock[ed] up . . . for long stretches of jail time.” You are left to imagine poor addicts who never hurt anyone but themselves, languishing for decades in some super-max prison. Yet federal drug enforcement targets felony drug dealers, not simple possession of drugs — the latter is left to the states. Mere users of marijuana and crack are not wasting away in federal penitentiaries. Moreover, an offender sentenced under a mandatory-minimum provision has necessarily committed a significant narcotics felony; the felony distribution of minor amounts of narcotics is not subject to a mandatory minimum, and judges maintain discretion to sentence those offenders to little or no jail time. Obama and Holder are talking about freeing what could amount to thousands of serious criminals.
Again, five grams of crack is a minor amount of narcotics, which is largely the point. McCarthy also dismisses the whole notion of “disparate impact” since white crack dealers were treated the same as black crack dealers. In addition to the fact that even this isn’t true, it is impossible to imagine that white suburban parents would have tolerated seeing their college-bound sons and daughters sentenced to five years in prison over possession of a couple of eight-balls. They call blacks a racial minority for a reason. They make up less than 20% of the population, and they are therefore less capable of using their political weight to change laws they find outrageous. White parents could live with sentencing guidelines that only impacted folks who possessed 500 grams of coke. They didn’t know any one like that, and those people were serious drug dealers. Black folks didn’t like the crack epidemic and would have supported tough sentencing for serious crack pushers. But that’s not what existed.
Andrew McCarthy says that President Obama is subverting the law by soliciting applications for commutation from people who received too-harsh sentences, but he doesn’t understand that too-harsh sentences actually occurred on a regular basis.
