By John Payton

(Washington, D.C.) –Last night the Senate passed S. 1789, The Fair Sentencing Act of 2010, concerning the, racially discriminatory disparity in the treatment of the crack and powder forms of cocaine. Although the Senate passed legislation concerning the crack/powder sentencing disparity, it refused to completely eliminate that unjustified disparity. The Senate’s failure is deeply troubling. If left uncorrected, the Senate’s action would mean that racial discrimination will persist.

There is no dispute that the crack/cocaine disparity must be eliminated. No scientific or criminological justification exists for treating the two forms of the drug differently. Second, the sentencing disparity has had a devastating, racially discriminatory impact on African Americans. The recognition of these two, simple facts is widespread, as is the recognition of the need to act now to eliminate this unjustified disparity.

• The United States Sentencing Commission concluded that eliminating the 100:1 sentencing disparity would do more to reduce the sentencing gap between blacks and whites “than any other single policy change” and would “dramatically improve the fairness of the federal sentencing system.
• Attorney General Eric Holder has stated that “[t]his Administration firmly believes that the disparity in crack and powder cocaine sentences is unwarranted, creates a perception of unfairness, and must be eliminated.”
• Lanny Bruer, Assistant Attorney General, Criminal Division testified that “we cannot ignore the mounting evidence that the current cocaine sentencing disparity is difficult to justify based on the facts and science. . . [t]he Administration believes Congress’s goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine.”
• Judge Reggie B. Walton- Associate Director of the Office of Drug Control Policy under President George H.W. Bush and appointed by President George W. Bush to the Federal Bench, testified about “the agony of having to enforce a law that one believes is fundamentally unfair and disproportionately impacts individuals who look like me.”
• Judge Michael McConnell of the Tenth Circuit Court of Appeals, who was nominated to that position by President George W. Bush and who served in the Department of Justice during the Regan Administration, has called the federal crack cocaine laws “virtually indefensible.”
• Scientific and medical experts have determined that crack and powder cocaine are pharmacologically identical and have the same effect on users. As Dr. Glen Hanson, then acting Director of the National Institute on Drug Abuse, testified to the Sentencing Commission that the pharmacological effects of crack cocaine are no more harmful than powder cocaine. There is absolutely no scientific basis for treating crack and powder cocaine differently.

We acknowledge that proponents of reform supported this action only because they believed it was the only way to achieve some progress, but a better result is obtainable.. The House of Representatives Judiciary Committee reported legislation to completely eliminate the disparity between powder and crack cocaine, H.R 3245. That legislation awaits action by the full House. It should swiftly be passed.

The Obama Administration has also supported complete elimination of this unjustified disparity. As a candidate, President Obama called for elimination of the disparity stating: “the disparity between crack and powder-based cocaine is wrong, cannot be justified and should be eliminated.” The Attorney General and the head of the Department of Justice Criminal Division have echoed this call. It is incumbent on the Administration to make its actions reflect its words. The Administration must support real reform, complete elimination of the disparity, and do everything in its power to eliminate unjustified, racially discriminatory sentencing practices.