Crack Cocaine Campaign
2006 marks the 20th anniversary of the adoption of mandatory minimum sentences for crack cocaine possession that are far in excess of penalties for powder cocaine. Some experts believe this has been the single most important factor accounting for the fact that, on average, African Americans receive much longer sentences when convicted than others. OSPC has launched a targeted campaign to mend this "crack" in the justice system.

September 23, 2005

The disparity in penalty between crack and powder cocaine stands out as one of the most notorious illustrations of racial disparity in the criminal justice system. The penalty triggers for crack, enacted with hysteria nearly 20 years ago, are 100 times more severe than those for powder cocaine. One convicted of selling 500 grams of powder cocaine receives the same 5 year sentence as one convicted of possessing 5 grams of crack cocaine. This is commonly referred to as the 100:1 quantity ratio. One who possesses just five grams of crack receives a felony sentence of at least five years in prison without parole. A person found with 499 grams of powder cocaine, a misdemeanor, could qualify for probation with no time at all in jail. In response to complaints from the federal bench, the criminal defense bar, family members of convicted defendants and civil rights groups, Congress directed the U.S. Sentencing Commission in the 1994 Crime Bill to examine this disparity. Overwhelming evidence was presented to support the conclusion of the bipartisan Commission members that the current 100:1 quantity disparity for crack trafficking versus powder trafficking offenses cannot be justified, and that mandatory minimum sentences for simple possession of crack must be eliminated.

Drug sentencing policies, particularly the disparity between crack and powder cocaine, produce disparate sentences, exacerbate racial disparities in time served, and increase the proportion of low level crack and powder cocaine offenders serving time in prison. Some 81.4 percent of crack cocaine defendants are African American, yet the majority (two-thirds) of the crack users are Caucasian or Hispanic. The Sentencing Commission recently reported that revising this one sentencing rule “would better reduce the gap [in sentencing] than any other single policy change, and it would dramatically improve the fairness of the federal sentencing system.”

A primary argument justifying the distinction in sentencing is that crack is more dangerous and addictive than powder cocaine. The reality, however, is that both crack and powder cocaine are addictive, both are dangerous, and both pose public health risks. But one does not pose a greater risk than the other. Pharmacologically, “cocaine is cocaine is cocaine, whether you take it intranasally, intravenously or smoked.” And, according to the Sentencing Commission, the “rates of HIV infection are nearly equal between crack cocaine smokers who are at greater risk due to high-risk sexual practices and powder cocaine injectors who are at greater risk because of the potential for infection from shared injection equipment.” However, even if crack were a more dangerous substance than powder cocaine, increased penalties should not be justified on that basis. Cocaine powder is easily transformed into crack. It takes a frying pan, a pot of water, a box of baking soda, and 15 minutes to turn powder cocaine into crack cocaine. Thus, to apply a stiffer penalty between cocaine which is sold directly as crack, and cocaine which is in powder form but which can be treated by the consumer and easily transformed into crack, is irrational. As emphasized by the Commission, “in light of the fact that crack cocaine can easily be produced from powder cocaine, the form of cocaine is simply not a reasonable proxy for dangerousness associated with use.”

The specter of a generation of “crack babies” has also been used as justification for the proposition that greater public harm is connected with crack use. The term, “crack baby,” however has proved to be a misnomer, and the medical community has rejected it. The Sentencing Commission has reported that the negative effects of prenatal crack cocaine exposure are identical to the negative effects of prenatal powder cocaine exposure, and are significantly less severe than previously believed. In fact, the Commission continued, the negative effects from prenatal cocaine exposure are similar to those associated with prenatal tobacco exposure, and less severe than the negative effects of prenatal alcohol exposure.

Finally, stiffer sentences for crack cocaine use has been justified as the result of increased violence, deterioration of communities, and the drug’s low cost. The sale of crack cocaine has, without a doubt, been devastating to already distressed communities. But to single out a specific form of a particular drug among many (legal and illegal) that contribute to the deterioration of neighborhoods is unsound. Moreover, the connection of drug use with crime oversimplifies the relationship. Extrinsic socio-economic factors have commonly been the indicators of crime and violence, as opposed to any factors pharmacologically intrinsic to crack. Finally, to apply draconian penalties for crack on the basis of its low cost discriminates on the basis of class, especially in light of the fact that powder cocaine, in spite of its higher expense, is a drug abused more in this country.

It should be noted that bringing the triggering levels for powder cocaine in line with the current levels for crack cocaine, although achieving equity, is not a panacea; the current sentences for drugs are already severe and tough. Thus, lowering the powder thresholds is not only unnecessary; it will result in increased incarceration of non-violent low-level offenders who will take prison space from violent offenders not subject to mandatory minimum drug sentences. Sentencing powder cocaine defendants the same as crack defendants are currently sentenced will result in more than 41,000 federal prisoners per year, at a cost of over $800 billion within ten years. And, because of discriminatory enforcement and selective prosecution practices, it will likely worsen, not remedy, the racial disparity. In 2000, 80% of persons prosecuted for powder cocaine offenses were people of color – 30.5% were Black and 50.5% Hispanic – while only 17.8% of powder cocaine defendants were Caucasian. Thus lowering powder thresholds would have a disproportionate impact on the Latino community, will not end the “war on drugs” being targeted at inner city communities, will not result in more Whites being arrested, prosecuted and convicted, and will not cause a shift in focus from bit players to drug kingpins. What it would do, however, is lead to additional racial disparities, increasing more skepticism and distrust of the criminal justice system in communities of color.

In 1986, much was unknown about crack cocaine and its dangerousness, other than the belief (later found to be erroneous) that nationally acclaimed basketball star Len Bias died from a crack cocaine overdose. Indeed, the legislative history at the time of the statute’s passage is pitifully truncated. Today, however, after meticulous study, copious documentation and rationally sound analysis by the U.S. Sentencing Commission resulting in three comprehensive reports to Congress, the evidence is in. With the 20th anniversary of the law fast approaching, legislators should take this as a timely opportunity to revisit whether sufficiently prudent policy bases exist to support the 100:1 sentencing scheme. If not, corrective legislation must be enacted forthwith that places the focus of drug enforcement on major traffickers where it should be, thereby eliminating the law’s disproportionate impact on people of color and the poor.

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