This is a story about how the U.S. Sentencing Commission finally did something wise and courageous, only to have its legs chopped off by Attorney General Janet Reno and Assistant Attorney General Jo Ann Harris.

First, some background:

A seller of powder cocaine gets a federal mandatory minimum sentence of five years only if caught with more than 500 grams.

But a first-time seller (or even a simple possessor) of crack cocaine gets the same five-year sentence if caught with just five grams-about one-sixth of an ounce.

And lots of small-time crack users, sellers supporting their habits, couriers, lookouts, minor accomplices, girlfriends, and other bit players-many of whom have no record of violence, and might be salvaged by short-term, shock incarceration and by drug treatment-are currently serving five-year sentences.

Lots more such people have been slammed with 10-year mandatory minimums for getting caught with 50 grams (less than two ounces) of crack. That’s one one-hundredth of the amount of powder cocaine (5,000 grams) that would bring the same sentence.

This 100-1 quantity ratio is especially absurd in light of the fact that powder cocaine can easily be converted into crack by cooking it up with a bit of baking soda and water. It is perhaps the most irrational aspect of the grotesquely unfair sentencing scheme-deplored by federal judges, including Reagan and Bush appointees, almost without exception-that Congress has ordained for drug offenders in statutes passed in 1986, 1988, and 1994.

The wildly excessive crack penalties have also had a hugely disparate racial impact: Black defendants accounted for 88 percent of all federal convictions for crack distribution in 1993 (even though a majority of crack users are white), compared with 27 percent of all convictions for powder-cocaine distribution. The sentences of crack convicts are three to eight times longer than those of people caught with the same amounts of powder cocaine, according to the Sentencing Commission. So black cocaine defendants receive far longer sentences on average than white cocaine defendants.

This is the sort of injustice that some people hoped Attorney General Reno would try to combat, back when she was saying sensible things like: "We are not going to solve the crime problem by sending everyone to prison for as long as we can get them there and throwing the key away."

But Reno stopped saying such things soon after taking office. And she has never raised her voice against the arbitrary and harsh sentencing of small-time crack defendants. She has not even spoken out against the especially crazy 1988 statute mandating five-year minimum sentences for defendants convicted of mere possession of five grams of crack. (The maximum for mere possession of any other illegal drug is one year.) Even the Reagan Justice Department opposed that one, and some U.S. attorney’s offices decline to enforce it.

DOJ ATTACKS REPORT

It was not until April 15 that Reno spoke up on the subject of crack sentencing. And when she did, it was to attack the Sentencing Commission and its new, Clinton-appointed chairman, U.S. District Judge Richard Conaboy of the Middle District of Pennsylvania, for proposing a step toward fairness.

The commission had issued an exhaustive, 242-page report to Congress on Feb. 28, expressing unanimous disapproval of the current 100-1 quantity ratio. In an April 15 vote, a 4-3 majority went further, by voting to recommend revising the sentencing laws to "equate crack cocaine with powder cocaine for sentencing purposes."

At the same time, the commission noted that its comprehensive sentencing guidelines mandate enhanced penalties for those defendants who in fact present the special dangers-like a record of violence-associated in the public mind with crack. It also proposed increasing the guideline penalties for using weapons or violence during drug offenses.

Reno immediately joined Jo Ann Harris, head of the Criminal Division (who is also a non-voting, ex officio member of the Sentencing Commission), in urging Congress to reject the commission’s proposal on crack penalties. In a press release, Reno explained: "I strongly oppose measures that fail to reflect the harsh and terrible impact of crack on communities across America."

Harsh and terrible it has indeed been. But that doesn’t make every bit player in the crack market into the moral equivalent of a murderer. Even Reno had to concede-grudgingly-that "an adjustment in the current penalty structure might be appropriate." But she did not propose one. Instead, she demonstrated once again her fealty to the politicos in the White House, who care only about fostering a tough-on-crime image for President Bill Clinton, and to the many federal prosecutors who have never seen an excessive sentencing law they didn’t like.

It’s true, as Reno says, that crack may in some ways do more damage to the social fabric than powder cocaine and most other illegal drugs. But as the Sentencing Commission’s report indicates, the differences have been vastly exaggerated, and the hype about crack causing the chaos in the inner cities is wildly overblown.

Smoking crack (the report notes) produces more rapid, intense, and short-lived highs than does snorting powder cocaine; some experts think this makes crack more psychologically addictive and more conducive to bingeing, which can be especially harmful to pregnant users and their fetuses. Crack is also more easily marketed to low-income people because it is packaged and sold in smaller doses. And the decentralized nature of the-crack market, which is based on street sales, fosters a great deal of violence among competing sellers.

But as the report also states, powder cocaine, when dissolved in water and injected, is just as addictive as crack-and more deadly. The report also asserts (citing studies) the following: that "neither powder nor crack cocaine excites or agitates users to commit criminal acts and that the stereotype of a drug-crazed addict committing heinous crimes is not true for either form of cocaine"; that there is little evidence "to suggest that either crack or powder cocaine users commit large numbers of violent acts to raise money to buy drugs"; and that all the publicity about "crack babies" masks the fact that powder cocaine has the same effects on fetuses. The report indicates, as well, that the deterioration of the inner cities seems attributable more to joblessness, family disintegration, and the gang culture than to the special properties of crack cocaine.

The commission’s report also stresses that the 100-1 quantity ratio of crack to powder is perverse in that it results in many "relatively low-level crack retailers receiv[ing] higher sentences than the wholesale-level cocaine dealer from whom the crack sellers originally purchased the powder to make the crack."

Few, if any, big-time dealers get caught with crack, because "cocaine is cultivated, processed, imported, and distributed almost exclusively in the powder form at the higher levels of the drug distribution chain." It’s the street-corner sellers-and buyers-who get caught with crack, and get the longest prison terms.

And to what end? They are immediately replaced by an endless supply of teen-agers willing to risk violent death, let alone federal prison. Far from saving the inner cities, our barbaric crack penalties are only adding to the decimation of inner-city youth.

So the seven Sentencing Commission members are clearly right to reject the current 100-1 quantity ratio as wildly out of line with any reasonable assessment of relative harms. And the four-member majority also seems right to propose equalizing the quantity-based penalties for crack and powder cocaine, while dealing with differences in culpability by fine-tuning the guideline enhancements.

POLITICAL PUSILLANIMITY

But this proposal seems dead on arrival in Congress, especially after being trashed by Janet Reno.

She has shown her political pusillanimity on drug-sentencing before: A report prepared in 1993 for then Deputy Attorney General Philip Heymann showed that more than 16,300 federal prisoners are "low-level" drug offenders with no record of violence, no involvement in sophisticated criminal activity, and no serious prior convictions. These 16,300-21 percent of the entire federal-prison population, and 36 percent of all federal drug prisoners-were serving an average of six years in prison. That’s more time than most robbers, kidnappers, and other violent criminals serve.

But when reporters questioned Reno about this state of affairs, in February 1994, she suggested that she had no problem with it and that the Heymann report was of little use. A few months later, when even some conservative Republicans in Congress agreed to add to the crime bill a (much too narrow) "safety valve," to exempt a few of the least culpable drug defendants from harsh mandatory sentences, the Reno Justice Department’s main contribution was to kill a provision that would have entitled a few current prisoners to early release.

"I keep politics out of what I do," Reno declared virtuously in her March 1993 confirmation testimony. But actions speak louder than words. Janet Reno has been the Robert McNamara of the drug war. Like McNamara, she has betrayed her own best instincts. And maybe she, like McNamara, will admit 30 years too late that "we were wrong, terribly wrong." But by then her legacy will be fixed: the perpetuation of an unfair, inhumane, and even racist drug-sentencing regime.