Weights and Half-Measures

The federal government reconsiders marijuana and crack sentences.

Savvy U.S. marijuana growers have learned never to cultivate more than 49 plants at a time. That rule has nothing to do with horticulture. Under federal sentencing guidelines, each plant in a garden with 49 or fewer plants is considered equivalent to 100 grams of dried marijuana. In a garden with 50 or more plants, each counts as 1,000 grams.

This scheme creates a sharp sentencing cliff, imposing dramatically longer prison terms based on small differences. Recognizing the unfairness of such disparities, the U.S. Sentencing Commission has unanimously approved an amendment that applies the 100 gram standard to all marijuana plants.

Robert Kampia, director of government relations for the Marijuana Policy Project, calls the amendment "a small step in the right direction." He says the one-kilogram standard is unrealistic, since one plant rarely produces more than 100 grams of dried marijuana. "When the U.S. Sentencing Commission soberly examines such policies," he says, "it becomes clear that they were based on hysteria and political posturing."

The commission came to a similar conclusion regarding the sentencing distinction between crack and cocaine powder. Under the current guidelines, one gram of crack is treated as equivalent to 100 grams of cocaine powder, resulting in sentences several times as long for the same amount of cocaine. The commission unanimously concluded that the 100-to-1 ratio was inappropriate, and a majority agreed that the two forms of the drug should be treated the same for sentencing purposes.

The commissioners noted that crack and cocaine powder are pharmacologically identical and that the latter can be easily converted into the former. Furthermore, since conversion occurs far down the distribution chain, the 100-to-1 standard punishes low-level dealers more severely than major traffickers. The commissioners seemed especially troubled by the fact that nearly 90 percent of federal crack defendants are black. The racial impact of crack sentences has generated considerable controversy in recent years, and the commission received 9,000 letters supporting reform.

The commissioners conceded that crack cases may be more likely to involve violence, juveniles, or other aggravating factors. Indeed, "under the amended guidelines, crack offenders will receive sentences that are, on average, generally at least twice as long as powder cocaine offenders involved with the same amount of drug," mainly because of aggravating factors.

The marijuana and crack amendments, which will go into effect on November 1 unless Congress overturns them, are expected to reduce the sentences of several hundred marijuana defendants and several thousand crack defendants a year. The commission has not yet decided whether the changes will apply retroactively. Furthermore, only Congress has the authority to change the mandatory minimum sentences established by statute: five years for 100 or more marijuana plants and for five grams or more of crack, 10 years for 1,000 or more plants and for 50 or more grams of crack.

The commission has asked Congress to eliminate the distinction between crack and cocaine powder in applying the mandatory sentences. "I'm not optimistic the statute will change," says Julie Stewart, president of Families Against Mandatory Minimums. "The guideline change might slip through." Although Attorney General Janet Reno has expressed concern about mandatory drug sentences, the Justice Department is opposing the commission's proposal. Right now, Stewart says, Congress is not paying much attention to crack sentences. Which may be just as well.