I’ve never been a fan of the federal sentencing guidelines, which the Supreme Court heard argument about this week. I thought things worked better in the old days (pre-1987), when the judge imposed sentence without a ton of briefing about whether the defendant should get 3 points or 4 points for “role in the offense” and the zillion other calculations that the guidelines ushered in. A lot of judges gave sentences that were too lenient, but in correcting that flaw we’ve crushed the system with sentencing litigation and I think the cure is worse than the disease was.

But all that said, I hate the way the press reports sentencing issues, especially this old complaint about the crack guidelines senselessly being 100-1 more severe than the powder cocaine guidelines. This Washington Post snippet is typical:

The “100 to 1″ disparity — trafficking in 5 grams of crack cocaine triggers a mandatory five-year sentence, the same punishment imposed for 500 grams of powder cocaine — results in higher sentences for African Americans, who are more likely to use that form of the drug, than for whites and Hispanics, who are more likely to use powder cocaine.

Let’s stipulate for argument’s sake that — even assuming crack (basically, cocaine base) is a more addictive drug than cocaine hydrochloride – it’s not sufficiently more addictive to warrant a 100-1 disparity. The racial argument advanced by the Post is based on who is using the drug. But as a practical matter, no one gets prosecuted federally for using cocaine. The states, to which the federal guidelines don’t apply, take care of that — and they don’t have the resources to do much of it. Prosecution, especially at the federal level, targets those who distribute drugs (which generally means those who sell them).

The Post obscures this by using the fuzzier term trafficking. But in fact, the “trafficking” conduct they are referring to at the beginning of the graph, which is the conduct for which sentence is imposed, is very different from the “using” conduct they refer to at the end — the source of the asserted racial disparity … but as to which the disparity is irrelevant since it’s not use but distribution that causes someone to be sentenced.

I don’t know how valid the racial disparity argument is anymore. Unfortunately, crack is much more widely available today than it was when the sentencing guidelines (and the cocaine statutes) began reflecting a big difference between powder and crack. But use doesn’t have much to do with it. What you’d need to ask is, who is selling cocaine? How many dealers are white, and are they really only selling powder coke? Maybe, but I’m skeptical.