Is Minnesota’s sentencing system broken?

Tuesday’s move by the U.S. Sentencing Commission to lighten the punishments retroactively for crimes related to crack cocaine, recalls the same dilemma faced by Minnesota justice officials in the ’80s and ’90s: harsher penalties for crack cocaine use put more blacks behind bars than whites.

Black offenders were more likely to use the crack form and white offenders were more likely to use the powder form of the drug, a problem in terms of sentencing guidelines because the penalties for crack were harsher than for the powder.

At the time, it was thought that crack was more harmful than powdered cocaine, a belief debunked in part by University of Minnesota psychologist Dorothy Hatsukami, who criticized the fact that a person would have to possess 500 grams of cocaine to get the same five-year sentence that a person possessing 5 grams of crack would get. Hatsukami and her colleague, Marian Fischman at Columbia University, didn’t recommend equal treatment for the drugs, but suggested a 2-to-1 ratio rather than the 100-to-1 ratio because crack was — and is — more widely available.

Congress was an unwilling listener at the time, but Minnesota acted comparatively quickly when the Minnesota Supreme Court struck down the state’s 10-to-3 ratio as unconstitutional in 1991. The Legislature, upset with the court ruling, responded by raising the penalties for other drug offenses, rather than lowering them for crack cocaine; a decision, we’re still paying for 16 years later, according to one expert.

“The weird thing that happened after the powder-rock cocaine case is we discovered who was being prosecuted for powder cocaine sales. Those were black people, too,” according to University of St. Thomas law professor Scott Swanson, a former head of the Minnesota Sentencing Guidelines Commission. “(The sentences) were out of control for rock cocaine and now they were out of control for the powder.”

Still, more whites went to prison for drug offenses in Minnesota, but not because of cocaine, according to the Commission. Its 2007 report on drug offender sentencing issues (Word file) says meth is now the “predominant drug of choice for white offenders.” And most of the cases are prosecuted in predominantly white outstate.

But all of these statistics mask a problem, according to Swanson: an overemphasis on drug crimes. He says most of the time judges in Minnesota “depart” from sentencing guidelines in drug cases, and impose different, usually lower, sentences.

“Why do we have guidelines? The system is broken,” Swanson says. “Nobody’s following it anymore. If I sell you 10 grams of cocaine for $1,500, I get 86 months in prison, if I take your $1,500 at gunpoint, I get 48 months in prison. Which of those two offenders is more dangerous? I don’t have any doubt that it’s the guy with the gun stealing your money. Yeah, people who sell 10 grams of cocaine are serious offenders… but when these two stand in front of a judge, the judge says ‘who’s the worse person?,’ and clearly it’s the nut with the gun, breaking into your home.”

“If all of the judges agree that a sentence is wrong, and are imposing a different sentence, then you have a problem with the guidelines,” he said.

The Minnesota Sentencing Guidelines Commission this month considered reranking the penalties for some crimes, including drugs, in the state (Word doc). But the Commission, according to Swanson, sent the issue to the Legislature without a recommendation, where it’s unlikely to get much debate. Politicians are reluctant to be seen going soft on crime.

If the Commission had taken action, Swanson said, the headlines would’ve said, Sentencing Commission lowers drug sentences. But he says it’s not about going soft, it’s about stepping back and concentrating on “proportionality,” identifying “who are the worst people? Who are the ones we want to pluck out for a longer period of time?” Swanson said.

Those are questions that got lost in the political debate about crime.

Listen to the interview with Scott Swanson.

Bob Collins and All Things Considered host Tom Crann discuss the issue.

Related story: About 200 inmates could get lower sentences (Bemidji Pioneer)