Two recent developments may finally signal the end of the vast difference between sentences for crack cocaine and powder cocaine. The inequities in sentences for crack cocaine vs. powder cocaine offenses, and the significant racial disparities in the prison population they generate, are again gaining national attention this summer.
Over twenty years ago, Congress enacted a sentencing scheme that punishes crack cocaine offenses far more severely than comparable powder cocaine offenses. This flaw in the criminal justice system was based on the bogus notion that the crack form of cocaine is inherently more addictive than the powder form and that crack users are more violent than powder cocaine users. Adding to the hysteria were wildly exaggerated press reports of the effects of cocaine on fetuses and newborns - the so-called “crack baby” phenomenon, which we now know has no basis in science or medicine. Congress, however, justified an unjustifiable war on drugs by citing such misinformation.
The result is that possession of crack, which is cheaper, has a significantly harsher sentence than possession of powdered cocaine. It takes 100 times more powder cocaine than crack to trigger the mandatory minimum sentences under the federal law. In other words, powder cocaine offenders who traffic 500 grams of powder receive the same sentence as crack offenders who possess just 5 grams of crack, resulting in a 100-to-1 sentencing disparity. And these sentence disparities are often tainted by race.
According to statistics released in May 2007 by the U.S. Sentencing Commission in its Report to Congress: Cocaine and Federal Sentencing, these harsher sentences for crack offenses have a disproportionate impact on persons of color from poor urban areas where crack is much more common than the cocaine powder favored by white users. African Americans make up over 80% of those sentenced for “trafficking” in crack.
The U.S. Sentencing Commission reported that this law is universally criticized by the judiciary, criminal justice practitioners, academics, and community interest groups. It made two important announcements in its report:
- It intends to reduce crack offenses in the federal sentencing guidelines formula by two levels, stating that it has strongly and unanimously concluded that there is no empirical justification for the current 100-to-1 crack-powder disparity and calling the need to close the disparities between the sentences “urgent and compelling.”
- It called on Congress to repeal the law that ensures first-time offenders get at least five years behind bars for possessing tiny amounts of crack cocaine. This is the fourth time that they have requested this since 1995.
Families Against Mandatory Minimums (FAMM), long-time advocates for reforming unjust sentencing policies, recently urged Congress to heed the message from the Sentencing Commission’s report. FAMM’s Mary Price, vice president and general counsel, stated: “The prisoners, children and families torn apart by these unjustifiably harsh penalties are watching closely and will welcome crack sentencing reforms that restore some justice to crack penalties.”
In a separate, but related matter, when the U.S. Supreme Court convenes in October it will be examining the issue of the crack/powder cocaine differential and judges’ discretion to impose sentences below the sentencing guidelines matrix. The justices will hear an appeal filed by the federal public defender’s office in Virginia on behalf of Derrick Kimbrough. Kimbrough, a gainfully employed, honorably discharged Gulf War vet with no felony record, received a 15-year sentence for possession with intent to distribute of more than 50 grams of crack cocaine. The judge in his case pronounced that the sentencing guidelines range of 19-22 years was “ridiculous” and “clearly inappropriate” and refused to impose it. The Court of Appeals for the Fourth Circuit, however, rejected the judge’s reasoning and ordered re-sentencing.
Policies such as the federal crack cocaine mandatory sentencing laws have had severely disproportionate racial effects for many years. Steps to end this unwarranted racial disparity are long overdue. But without substantial grassroots momentum, there is little chance that Congress will take action to remedy the effects of decades of unjustifiable sentences. We must keep up the pressure and assure Congress that we expect this law to change and we’re not going to let up until we’ve seen an end to these unfair laws.