A decade of sentencing reform.

• Author: Sullum, Jacob
• Position: Follow-Up

"With respect to these drug offenders," John Dilulio told me a decade ago, "the mandatory minimums have begun to go haywire." In "Prison Conversion" (August/September 1999), I explained how Dilulio, a hard-nosed criminologist known for defending the cost-effectiveness of prisons, had come to oppose mandatory minimum sentences for drug offenders, which he believed were wasting resources that could be used to incapacitate predatory criminals.

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Today mandatory minimums are still with us, but drug sentences have become less draconian in several significant ways. The most important development has been a series of Supreme Court rulings, culminating in the 2007 case Kimbrough v. United States, that gave judges more leeway to deviate from the federal sentencing guidelines that since the 1980s had dictated drug penalties. As a result of those decisions, judges are much freer to reject recommended sentences they deem excessively harsh.

The Supreme Court's rulings did not affect mandatory minimums set by statute. But Congress may be on the verge of addressing an especially irrational feature of those penalties. Under current law, five grams of crack cocaine is treated the same as 500 grams of cocaine powder, triggering a five-year sentence; likewise, 50 grams of crack triggers the same 10-year penalty as five kilograms of powder. The distinction, which is not based on any inherent difference between the smoked and snorted forms...