Facts Can Be Irrelevant

When it comes to passing legislation that creates or enhances penalties for drug possession, Congress rarely cares about facts.  The Marijuana Tax Act of 1937 was one of the first laws passed by Congress based on anything but facts.  It was, matter-of-factly, based upon sensationalized editorials written by William Randolph Hearst, owner of a huge chain of newspapers.  Hearst was more than the grandfather of infamous Patty Hearst; he was the granddaddy of “yellow journalism”, an approach to journalism that uses fake stories and interviews, phony photos, and the distortion of real events.

Almost 50 years later, Congress passed the Anti-Drug Abuse Act of 1986.  The law created a 100:1 ratio in the disparity in sentencing between crack and powder cocaine.  Again, the basis of this ridiculous ratio between two versions of the same drug was rumor, innuendo, fabrication, and political hyperbole.  Crack cocaine is made from powder cocaine.  It materializes after a process known as freebasing, removing the hydrochloride, a water soluble salt, to make powder into a solid chunk or rock.  Smoking crack will get you higher faster than snorting cocaine, but snorting the powder will last a heck of a lot longer.

Iowa was one of a few states that adopted the federal ratio of 100:1.  It wasn’t until 2003 that Iowa legislators reduced the ratio from 100:1 to 10:1.  It is possible that the outlandish ratio is one of the causes of Iowa’s disproportionate imprisonment of African-Americans.  Although it is believed that the percentage of drug users across ethnic and cultural lines is basically equal, African-Americans and Latinos are incarcerated at higher rates than their white counterparts, especially in Iowa.

So, to begin, a crack dealer needs cocaine.  The dealer heats the cocaine with baking soda and recovers the chemical reaction that rises to the top.  That solid piece of what remains is the crack. “According to the DEA and Sentencing Commission, one gram of cocaine powder converts/reduces to 0.89 gram cocaine base.”  http://edocket.access.gpo.gov/2010/2010-24648.htm.  In other words, beginning with 100 grams of cocaine powder (about the weight of a half roll of quarters, the dealer can produce approximately 89 grams of crack (take a couple of quarters out of that ½ roll).  Before the chemical transformation, the penalty for possessing those 100 grams of cocaine in Iowa would be a class “C” felony, ten years in prison.  After the transformation, the possession of the 89 grams of crack in Iowa is a Super class “B” felony, 50 years in prison.  “This disparity means that a major supplier of powder cocaine may receive a shorter sentence than a low-level dealer who buys powder from the supplier but then converts it to crack.”  Kimbrough v. US, 128 S.Ct. 558, 566 (2007).

Last week, a committee of the state’s Public Safety Advisory Board (PSAB) discussed this matter for almost 3 hours.  The Iowa Department of Corrections presented a proposal to equalize the sentences for equal amounts of cocaine/crack since “numerous studies have shown that the physiological and psychotropic effects of crack and powder cocaine are the same, and the drugs are now widely acknowledged as pharmacologically identical.”  Unfortunately, the department was willing to compromise as a result of pressure from law enforcement agencies.  The proposed compromise reduces the disparity to a couple of different percentages pulled out of mid-air, but it remains far from equalization.

Some would like to see the criminal sanctions for powder cocaine raised to match that of crack.  However, there are several problems with that reaction.  First, adjusting thresholds for powder cocaine will make a point that cocaine is a more troublesome drug than heroin, or meth.  Second, decreasing a threshold for amounts of powder possessed, bringing it down to current crack levels, will increase the population of Iowa’s prisons – already over capacity; thereby increasing the dollar costs to maintain those prisons.  Legislators are not about to frivolously spend money on additional prison beds in this grim economy.

The committee has not agreed to the compromise at this time; the Iowa Criminal and Juvenile Justice Planning Commission (CJJP) of the Iowa Department of Human Rights is going to conduct further research on projected results.  Nonetheless, even if the committee recommends a proposal to the PSAB, it may mean very little in terms of accomplishing the enactment of legislation this year that will address the disparity in sentencing between two pharmacologically identical drugs.  A committee proposal/compromise to the full PSAB may be shot down.  Even if it’s accepted by the PSAB, it may be rejected by the Iowa Legislature.  Either way, it’s nice to see people talking about this discrepancy rather than brushing it off as a political hot potato.

It’s funny how Congress and the State of Iowa can create a law based on thin air, but once facts are produced, explained, and emphasized, it is extremely difficult to change minds and hearts – and especially the law.

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