Two weeks ago, the U.S. Sentencing Commission promulgated a permanent amendment to the Federal Sentencing Guidelines that reduces jail time for those convicted of offenses related to crack cocaine. Liberals would love to portray the new drug sentencing standard for crack cocaine as a success story, in which the Obama administration undid a draconian Reagan-era drug policy. Critics are unduly harsh on Ronald Reagan’s drug policy, blaming the Great Communicator for driving the hysteria in the 1980s which led to the enactment of unfair criminal drug laws.
However, liberals might want to avoid taking credit for “fairer” crack cocaine sentencing laws when President Obama signed the Fair Sentencing Act of 2010. A look back twenty-five years ago reveals it was not President Reagan behind the gross disparities in sentencing of cocaine traffickers but in fact the liberals who created the problem in the first place.
In 1986, Congress was drafting the Anti-Drug Abuse Act. Mandatory sentencing minimums for trafficking in crack cocaine and powder cocaine were treated differently, based on presumptions about the degree of differences in the addictiveness of crack cocaine and its link to violent behavior. Legislators needed to determine how crack and powder cocaine should be sentenced.
The person responsible for the crack-powder cocaine ratio contained within the Anti-Drug Abuse Act of 1986 was Vice President Joe Biden. Then-Senator Biden succumbed to what he later referred to as “a feeling of desperation” and proposed a 100-to-1 ratio. His Democratic colleague from Florida, Senator Lawton Chiles, went even farther, by suggesting a 1000-to-1 ratio. The 100-to-1 ratio ultimately became law and served as the basis for the November 1, 1987 sentencing guidelines. By contrast, the Reagan administration proposed a much more reasonable 20-to-1 crack-powder ratio.
As a result of adopting Senator Biden’s ratio, defendants convicted of trafficking 50 grams of crack cocaine received a mandatory minimum sentence of 10 years, the same sentence given to someone who trafficked in 5,000 grams of powder cocaine. Confronted with this disparity, the Sentencing Commission proposed reductions to the ratio in 1995, 1997, 2002 and 2007. Each of these recommendations was unsuccessful because Congress refused to make a change.
Twenty years after his proposal became law, Biden backtracked, admitting that the facts that informed Congress’s determination “have proved to be wrong, making the underlying cocaine sentence structure we created unfounded and unfair.” He also said, “Each of the myths upon which we based the sentencing disparity has since been dispelled or altered.”
The amendment to the guidelines that was promulgated last week raised the quantities of crack cocaine to trigger mandatory minimum terms from 5 to 28 grams for five-year sentences and from 50 to 280 grams for ten-year sentences. Thus, the Fair Sentencing Act of 2010 reduced the ration to 18-to-1. After multiple attempts by the Sentencing Commission to undo Biden’s proposal and years where crack and powder cocaine traffickers were sentenced in vastly different ways, a proportion akin to Reagan’s policy was established.
On August 3, 2010, President Obama signed the Fair Sentencing Act in the Oval Office. He made no remarks at the signing. What President Obama probably should have said was that twenty-five years of a vast disparity in drug sentencing could have been avoided if Congress only listened to Reagan.
Maya is an Intern in the Center for Legal & Judicial Studies.