Drug Sentences Will Never Be Fair

Commutations and reforms can only ameliorate the inherent injustice of prohibition.

When President Obama issued his latest batch of commutations last week, the White House called them "102 second chances." Obama, who shortened just one sentence during his first term, is finally taking advantage of his second chance by issuing more commutations "than the previous 11 presidents combined" (as the White House puts it), 97 percent of them in the second half of his second term.

While Obama deserves credit for his belated but numerically impressive mercy, it should not obscure the fact that most of the people whose petitions he has granted did not belong in prison to begin with. Thousands more like them are still behind bars thanks to the moral travesty known as the war on drugs.

Almost all of the 774 prisoners whose sentences Obama has shortened so far are nonviolent drug offenders, 282 of whom received life sentences. One of them is Ricky Minor, a Florida carpet installer who in 2000 was caught with a little more than a gram of methamphetamine, plus supplies for making more: pseudoephedrine pills, acetone, matches, and lighter fluid.

Minor, who had a long history of drug problems, said the meth was intended for himself and his wife. To avoid charges against her that could have left their children without parents, he pleaded guilty to attempted manufacture of methamphetamine.

Under state law, Minor probably would have received a sentence of two or three years. But under federal law, he qualified as a "career offender," which triggered a mandatory life sentence.

That designation was based on a string of convictions for nonviolent drug offenses, none of which resulted in prison time. Minor had also been involved in some minor altercations that led to convictions for assault, trespass, battery, breach of peace, and resisting arrest.

Minor's criminal history hardly marked him as a violent predator who needed to be locked away for life. The judge who sentenced him acknowledged that a life term "far exceeds whatever punishment would be appropriate" while noting that he had no choice but to impose it.

"I was sitting in the courtroom when it happened," Minor's mother recalled in an interview with the American Civil Liberties Union, "and it was all I could do to stay seated in my chair. I was so shocked. I just couldn't believe they could do that to him."

Recognizing this miscarriage of justice, Obama last week shortened Minor's sentence from life to 262 months—almost 22 years. Minor already has been behind bars for 15 years, which is 15 years too many for someone whose crime consisted of mixing together some common household chemicals.

Although 22 years is less outrageous than a life term as a punishment for that offense, it can hardly be called fair. Yet this is what counts as progress in a criminal justice system that routinely locks people up for doing things that violate no one's rights.

In that context, the Fair Sentencing Act, which Obama signed in 2010, was a major improvement. While it used to take 100 times as much cocaine powder to trigger the same penalty as a given amount of crack, it now takes only 18 times as much.

The distinction between the snorted and smoked forms of cocaine is arbitrary and unscientific, so the new scheme is just as nonsensical as the old one. But it is less onerous for crack offenders, who happen to be overwhelmingly black.

Because the change did not apply retroactively, thousands of crack offenders continue to serve sentences that nearly everyone now agrees are too long. While Obama's commutations have helped some of them, at his current pace the vast majority will get no relief.

Congress could do more. But what seemed like bipartisan enthusiasm for sentencing reform fizzled this year in the face of pre-election anxieties about looking soft on crime. If fair sentencing is the goal, what's really needed is a reconsideration of what counts as crime.

© Copyright 2016 by Creators Syndicate Inc.