Sometimes Law Is Far From Blind : Justices should address disparity in drug cases

Crack cocaine has destroyed many American lives. Powdered cocaine has destroyed many American lives. The people who peddle either deserve harsh punishment. But unfortunately federal law makes a false distinction between these two related poisons.

Those caught with five or more grams of crack must serve five years in prison. But the same five-year sentence would be meted out for possession of powder cocaine only if the accused had 500 or more grams. This 100-to-1 disparity is rooted in concern about the potency of crack, its greater popularity than powder and the violence often associated with the crack trade. One result of the difference has been to crowd prisons with first-time offenders, many with no record of violence.

ISSUE OF FAIRNESS: The U.S. Supreme Court’s decision Monday to review federal indictments against five men accused of drug trafficking in the Los Angeles area gives the justices an opportunity to comment on the disparity. The federal system sorely needs more flexibility and rationality. But at nearly every turn, lawmakers, and President Clinton, have shrunk from sanctioning any latitude. Will the high court look beyond facile tough-on-crime rhetoric? The court should: It is a simple question of fairness.

The narrow issue before the justices is whether federal prosecutors in Los Angeles can be forced to explain why nearly all people charged here with crack cocaine violations are black. Arguments will focus on whether there is a basis for imposing a discovery order on prosecutors that would force them to prove that the five young black men charged in 1992 with crack dealing by Inglewood police were not the victims of “selective prosecution.” Last March, the 9th Circuit Court of Appeal found that “evidence of a significant statistical disparity in the race of those prosecuted” is enough to force prosecutors to open their files and demonstrate their fairness.

The evidence for disparity is troubling. A 1992 survey found that in many federal court districts only minorities were prosecuted for crack cocaine offenses, while whites charged with crack possession were usually prosecuted in more lenient state systems. Federal prosecutors defend their record as colorblind, insisting that it results from prudent, even compassionate, decisions to use their scarce enforcement resources in the areas most victimized by drug violence--minority neighborhoods. Arguments in the case will be heard early next year.

EXPERTS IGNORED: The U.S. Sentencing Commission voted last spring to equalize the penalties for simple possession of the two types of cocaine. If violence was used or threatened, tougher sentences would prevail, whichever type of the narcotic was involved. Now that makes sense.

The panel’s recommendations, long overdue, would have become law if Congress had not intervened. But Congress passed a bill to maintain the disparity. Worse still, Clinton signed that bill Monday. Would that this President had instead displayed some true toughness on crime by acting to return a measure of common sense and fairness to the federal criminal code.