Seeking to close the book on a bad law

For Arthur Burnett, a senior D.C. Superior Court judge, few drug cases have tested his judicial temperament like those involving crack cocaine. What infuriates Burnett most is not the users but the law itself: a five-year mandatory minimum prison sentence for possessing five grams of crack cocaine -- about as much as two packets of sugar.

No other drug law metes out so much punishment for such a small offense, Burnett points out.

No other drug law makes such a peculiar distinction between different forms of the same drug: If a person has powdered cocaine, it takes 100 grams to get five years -- even though crack is nothing more than a heated mixture of powdered cocaine and baking soda.

Worse yet, with blacks comprising 80 percent of those charged and convicted of crack-related offenses, the law is widely perceived as being unjustly applied.

And "mandatory" means there's no case-by-case consideration.

"I've handled thousands of these cases, and in many instances you had African American youths being coerced by gangs to aid and abet in the distribution of crack," Burnett told me. "They weren't profiteering; they were just trying to keep from getting shot. You had women who were victims of domestic abuse. If they didn't hold the drugs or help make deliveries, the boyfriend would put them out and they'd end up homeless, living out of a car. And for that, they'd get sent to prison for five years. What rankled me most was having my hands tied and being unable to evaluate individual circumstances."

In 2004, Burnett took a sabbatical from the D.C. bench to wage war against the law. He is serving as executive director of the National African American Drug Policy Coalition, a 21-member organization of reform-minded law enforcement officials and health experts headquartered at Howard University. Thanks to Burnett's organization and others, such as the Sentencing Project and the Congressional Black Caucus, efforts to change the law appear to be gaining momentum.

In a report to Congress last week, the U.S. Sentencing Commission recommended reducing sentences for low-level cocaine offenders and repealing the mandatory minimum penalty for simple possession of crack cocaine. Even Sen. Jeff Sessions (R-Ala.), long a proponent of stiff federal drug laws, has become concerned by the enormous disparity and recently introduced legislation that would reduce crack sentences while raising powder penalties.

"For the first time in 20 years, there is some real prospect for a change in policy," said Marc Mauer, executive director of the Sentencing Project, which advocates for an end to racial disparities in the criminal justice system. "It's hardly the full answer, but it's a step."

Burnett, who became the nation's first African American federal magistrate in 1969 and was appointed to the D.C. Superior Court in 1987, said: "The law is more harmful than the problem it was supposed to solve. I've had cases where African American senior citizens on welfare were busted for running a crack house. They needed money to keep a roof over their heads so they let these guys pay to use their basements. A 62-year-old grandmother goes to prison because she needs money to supplement her Social Security. A judge ought to be able to make decisions in cases like these based on moral culpability and economic duress, not a one-size-fits-all mandatory law."

About 100,000 people have been given mandatory five-year sentences since the federal crack law was passed in 1986. But the incarcerations did not have the desired effect. As low-level dealers and users were sent to prison, new ones simply took their places. Meanwhile, the cocaine kingpins kept importing the drugs with virtual impunity.

Instead of spending $20,000 a year to imprison drug addicts, Burnett said, we should provide drug treatment and job training.

"I've see guys with seven, eight convictions for drug possession -- start out in their 20s and still coming back at 50," Burnett said. "In effect, they are serving life sentences with intervening vacations of three and four months before they get busted again. Therefore, we are just spinning our wheels."

Burnett's sabbatical was supposed to be for two years. But he recently got it extended. For now, he prefers sitting in judgment of a bad law -- and wants it sentenced to death.