The Impact of Releasing Crack Offenders

The prison population has hit a historic high, according to a study released yesterday that put the country's adult incarcerations rate at 1 in 100. It's a figure that has been boosted in large part by tough federal sentencing laws on crack cocaine—laws that punish crack offenders far more harshly than those caught dealing the drug's powder form.

That disparity is changing—and it could put a dent in the prison population over the long haul. Next week, the first federal crack offenders will be eligible for early release based on retroactive changes to the sentencing guidelines. The release comes after a decision by the U.S. Sentencing Commission that retroactively reduced the disparity between crack and powder cocaine from 100:1 to between 75:1 and 25:1, depending on the quantity.

The Justice Department has opposed the early releases, but Congress has not acted to prevent them. Meanwhile, it may reduce the disparity even further. Some proposals would raise the penalty for powder cocaine to that for crack; others would lower the sentencing ratio between crack and powder to 20:1 or even 1:1.

Judge Reggie Walton, a U.S. district court judge in Washington, D.C., is hardly known for giving soft sentences. But as chair of the Criminal Law Committee for the Judicial Conference, he has been one of the most outspoken critics of the cocaine sentencing disparity. U.S. News spoke with Walton about his views:

Q: You say the sentencing difference is one of the most significant challenges facing the federal judicial system. Why?
A: Because I know there's a certain segment of American society that feels this is a reflection of unfairness of the system against people of color. Because of that, there are a lot of people who believe that our system is not fair and just. I just don't feel that it's constructive for a segment of our society to feel that our criminal justice is not fair and just.

Q: How have you seen that play out in the courtroom over the years?
A: I've had jurors who have refused to serve or said they would have difficulty being fair because of the disparity. And I've had jurors who've, after the fact, refused to convict or...who said they would not convict because they think the law is unfair.

Q: At the time did you think there was a problem with this disparity?
A: I supported a distinction between the two, and I can't unequivocally say there's not justification for some distinction. I just think that 100:1 is far too great a distinction between the two substances, especially based on what we know about crack cocaine as compared to what we knew then.

Q: There are a number of competing proposals in Congress to lower the disparity or raise the penalties for powder cocaine. Do you support one?
A: The conference has not taken a position on which particular legislation would be appropriate. I am willing to say from my personal perspective that I don't think it makes a lot of sense to raise the penalty for powder to the penalties you have for crack because all that is going to do is increase the number of people we have incarcerated. And while I don't have a problem locking people up who need to be locked up, I don't think the answer to addressing the drug problem is to lock more people up than we already have incarcerated.

Q: There are proposals that would lessen the disparity in sentencing between crack cocaine and powder cocaine from 20:1 to even 1:1. Do you think there should be a distinction?
A: I think that's a legislative decision that Congress has to make based on information that is presented to them that may suggest a distinction between the two substances. We do know that although the chemical makeup of the two substances is identical, the way crack cocaine is used makes it potentially more addictive. And that may be a sufficient reason for Congress to make a distinction between the two.

Q: The Justice Department disagrees with retroactivity. Do you think it's a problem?
A: I don't. The perception that's being put out there is that just because people are eligible means they are going to be released, and that is just not going to be the case. Even though [offenders] are eligible, judges are obligated to assess whether they would be a danger to the community. And you obviously will look at what their past history is, what their situation was as far as the particular crimes they are serving time for, and what their institutional adjustments have been. And I trust that judges, if they perceive that the individual would pose a danger, then obviously that individual won't receive the benefit.

There are many people...who are just languishing in prison who've been adequately punished who could come out and be a contributing member of society rather than us paying $25,000 to keep them locked up beyond the time when they need to be locked up.

Q: What about the Department of Justice's concern that there aren't enough programs to handle the re-entry of all the prisoners?
A: I understand what they are saying, and I think people like myself are equally concerned. But the reality, if you look at the statistics, is that, the last I checked, we're probably talking about almost 7,000 to 8,000 people who are going to be coming back into the community. So this number really doesn't add significantly to a problem that this society has got to confront. I mean, we've got to deal with the issue of re-entry.

Q: Are you hopeful there will be more action in Congress this time?
A: I would hope so. I would hope that our congressional representatives appreciate the fact that this disparity is just not justified in light of what we know now about crack. And that laws will be crafted in a way that we make sure that people who are involved in crack—not just crack but people who are involved in the distribution of all drugs—who are engaged in violent behavior or weapons offenses, or large drug sellers, that regardless of what drug they possess, that they will be punished appropriately.