Cleveland Plain Dealer...
Unequal crack cocaine penalties cleaned up as cost balances anti-crime pressure
By Reginald Fields, The Plain Dealer
Sunday, July 03, 2011 

COLUMBUS, Ohio -- For more than a decade, Ohio lawmakers, faced with political pressure, failed to correct one of the most glaring inequalities in the criminal-justice system: penalties for crack versus those for powder cocaine. 

In the late 1980s and early-1990s, when the country was embroiled in the war on drugs, when labels like “kingpin” and “drug czar” became household terms, Ohio -- like the federal government and other states -- got tough by taking down crack dealers. 

The result was penalties for possession of and trafficking in crack cocaine that were five to 10 times higher than for using and selling the same quantities of powder cocaine. The prisons swelled with young black drug dealers. The disparity was evident. 

“There’s no secret that more powder cocaine is sold in the white community than the black community,” said Charles R. See, executive director of the Community Re-Entry program in Cleveland and former board member for the Ohio Sentencing Commission. “But why should one rock of cocaine get the kind of sentence that you can get only if you have five, six or seven times that amount of powder cocaine? It’s all the same drug.” 

That’s all about to change. Gov. John Kasich last week signed House Bill 86, a multifaceted sentencing-reform law that among other things will even out the penalties for crack and powder cocaine. 

Just before signing the bill, the Republican governor noted that past lawmakers and governors were scared by political pressure to address aspects of the law that will probably see thousands of state inmates released early and the disparity related to cocaine penalties. 

Under the new law, the penalty for higher quantities of powder cocaine will be ratcheted up to match the tougher penalties for equal amounts of crack cocaine. On the other end, the penalty for lower to medium amounts of crack will be decreased to match the punishment for the same amounts of powder. 

“We end up with a blended sentence approach where pharmacologically both substances are treated the same,” explained State Sen. Bill Seitz, a Cincinnati Republican who had tried in previous General Assemblies to win approval for bills to eliminate the disparity.

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“We have largely eliminated the sentencing disparity and done so in a way that does not result in adding to the prison overcrowding problem,” he said. “So, it was kind of a win-win solution.” 

Ohio now becomes the 38th state to change its laws to address the disparity in sentencing between crack and powder cocaine, said Mike Lawlor, a board member for the Council of State Governments Justice Center. 

When crack cocaine was at its height, drive-by shootings were prevalent; open-air corner drug dealing was, too; and murder and incarceration rates skyrocketed. That triggered every state, Lawlor said, to implement tough new laws aimed at getting the crack problem under control. But that led to the unintended consequence of highlighting a racial disparity in sentencing, he said. 

The federal government in 2008 closed its disparity just as many states began trying to do the same. And last week, the U.S. Sentencing Commission voted to make those new sentencing guidelines retroactive. Ohio’s law is not retroactive. 

So why has Ohio finally come around to addressing its own disparity as so many other states and the federal government have done? Kasich said that on one hand it is about trying to give lower-level, nonviolent criminals another chance. On the other hand, it is about decreasing the state’s overwhelming prison population and saving the state money. 

“It’s only been in the last three or four years that you have seen a very unusual alliance between fiscal conservatives and social progressives emerge around prisons,” said Lawlor, the undersecretary for criminal justice policy at the Connecticut Office of Policy and Management. 

“Prisons are really expensive. Then you add in the state budget crisis that every state is grappling with right now,” he said. “So we’ve had this rethinking of priorities in the criminal justice system which I think really opens the doors for what had been advocated for already to emerge. People are heading down that same road towards the same destination here.” 

That explains why Ohio Republicans, who passed many of the tough-on-crime bills requiring mandatory prison time, are now willing to consider reform measures. Kasich took office in January and announced that sentencing reform would be among his early priorities in office. 

But the issue was on the radar for many state lawmakers long before the governor had even left Congress, a stop earlier in his political career. 

State Sen. Charleta Tavares, a Columbus Democrat, was in the Ohio House in the mid-1990s when she and other Democrats offered up a host of prison sentencing and re-entry bills, most of which were tabled by Republicans in the majority. 

To get around the fear of appearing to be not hard enough on criminals, a Tavares bill recommended making powder-cocaine penalties tougher across the board to match those of crack cocaine. 

“We decided we would equalize up so no one had to worry about appearing soft on crime,” she said. “We certainly felt that would be a way that our colleagues across the aisle and even some Democrats could support us. Needless to say, they didn’t agree.” 

Democrats with each General Assembly would bring up the same bill, hoping to keep the issue at the forefront of the minds of Republicans who controlled the Ohio legislature. 

The problem with their bill, said Dave Diroll, executive director of the Ohio Sentencing Commission, was that it would have vastly increased the state’s prison population, which even back then was over-capacity. Plus, many of the people being busted for dealing powder cocaine then were black. 

Diroll was instrumental in recent years working with a number of lawmakers, including Seitz and Tavares, to find a workable solution. He helped come up with the new sentencing guidelines. House Bill 86 passed the legislature with nearly unanimous support, and Kasich invited Democrats to his bill signing at the Statehouse. 

Diroll guesses that under the new law, more people busted for crack will be getting breaks on going to prison than there will be people going to prison under the increased powder-cocaine provisions. That’s because there are more convictions for lower-level crack offenses than there are for higher-level powder-cocaine offenses. 

Former state prisons director Terry Collins, who retired last year after three decades with the Ohio Department of Rehabilitation and Correction, said it is about time. Collins testified several times in recent years for bills that would eliminate the crack and powder cocaine sentencing disparity. 

“It only made sense. It’s a fairness issue,” Collins said. “It never made sense to me that you would get a stiffer penalty for crack than you would for powder. A drug is a drug, and if you are going to say one is bad, then the other is just as bad.” 

Read it at the Cleveland Plain Dealer