The result has been a tragic playing out of the law of unintended consequences. Instead of focusing on dangerous drug kingpins, federal efforts have been mostly directed at people possessing relatively small amounts of crack. Only 7 percent of federal cocaine cases are directed at high-level traffickers, with a third of all cases involving quantities that weigh less than a small candy bar, says Sterling, who now runs the Criminal Justice Policy Foundation: "Street-level crack dealers are actually punished 300 times more severely than high-level cocaine powder traffickers on a punishment-per-gram basis." To add to the mess, drug policy has become highly racialized. As Ginsberg noted, approximately 85 percent of those convicted of crack offenses in federal court are black—even though more whites use crack than blacks. The numbers, says Sterling, reflect "conventions of law enforcement" and a predisposition toward "prosecuting a class of lowlifes who happen to be people of color."

Whether this is indeed a watershed moment is yet to be seen. Even the Supreme Court's influence is limited. In the end, "all the courts do is interpret the law," said Deborah Small of Break the Chains, a New York nonprofit promoting drug-policy reform. But Judge Weinstein is among those who believe things are changing. "There is a sense of a turning point," he told NEWSWEEK. "And partly it's due to economics. The cost [of the current path] is tremendous, to the community and to taxpayers."

For more than a decade, the sentencing commission has been urging Congress to rethink the law and its crack-powder ratio to no avail. This year, the commission took matters in its own hands and slightly reduced the sentencing disparity. And it again appealed to Congress to change the underlying law. The message is simple: it's not just that the "get tough" policies of the 1980s don't work; they actually do harm—by, among other things, undermining faith in the fairness and efficacy of the justice system itself. The Supreme Court finally has noticed that. It's time that Congress did the same.

© 2007