Ask This: Time to change cocaine sentencing minimums?

Nieman Watchdog

Q. Why do members of Congress and Department of Justice officials continue to oppose reform of federal crack cocaine sentencing laws, despite repeated calls for reform from independent organizations such as the American Bar Association?

Q. While it is estimated that two-thirds of crack cocaine users are white or Hispanic, 80% of persons convicted for a crack cocaine offense in the federal system are African American. Why is there a disconnect between drug use rates and prosecutions in the federal court system?

This year marks the 20^th anniversary of Congressional passage of the Anti-Drug Abuse Act of 1986, which dramatically amended the Controlled Substances Act, most prominently through the broad adoption of mandatory minimum sentences.

Perhaps the most (in)famous element of the legislation applied to the penalty structure for cocaine, namely the imposition of a differential weight calculus triggering substantially divergent sentences based on the way the cocaine had been processed. If a defendant is convicted for the sale of 500 grams of powder cocaine, a 5-year mandatory minimum penalty is automatically triggered. However, if that cocaine has been processed with water and baking soda and cooked into a hard, smokable form, conviction for possession of only 5 grams will result in that same 5-year mandatory minimum. Crack cocaine is the only drug which mandates such a severe penalty for a possession offense.

This 100-to-1 weight ratio is one of the most contentious elements of the federal criminal code. It was passed under the aegis that crack cocaine poses a greater danger to society, relative to other narcotics, and must be addressed as such by statute. Public sentiment, fueled by media coverage describing crack cocaine as a “plague,” “epidemic,” and “crisis,” galvanized Congress to move swiftly and harshly.

In the intervening twenty years, much of what was previously believed about the impact of crack cocaine has been proven false. Numerous clinical studies have demonstrated no physiological difference between crack and powder cocaine users, no greater predilection toward violent criminality by people who use crack cocaine, and the oft-voiced warnings of a generation of children lost due to their upbringing as “crack babies” never materialized.

As the underlying rationale for the differential penalty structure eroded, the United States Sentencing Commission, charged by Congress to study the federal penalty structure and make recommendations for amendments as warranted by the evidence, has on three separate occasions (1995, 1997, and 2002), called for a reduction in the 100-to-1 penalty differential. The Commission noted that there is little difference between the two substances, and the overly punitive sentencing structure is not calibrated in such a way to target the most serious offenders.

In 2002, the Commission issued an unequivocal statement that it “firmly and unanimously believes that the current federal cocaine sentencing policy is unjustified and fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act and the 1986 Act.” However, both the Clinton and Bush administrations voiced opposition to reform.

The consequences of this sentencing differential have been experienced disproportionately by the African American community. Despite the fact that two-thirds of regular crack cocaine users are white or Latino, 80% of persons sentenced in the federal system are African American. Law enforcement patterns targeting communities of color are codified in the federal system through the 100-to-1 sentencing disparity, thereby exacerbating already system-wide racial inequalities. The average sentence for a crack cocaine offense (123 months) is three and a half years longer than the average sentence for a powder cocaine offense (81 months).

With such a concentration of convictions in the African American community, the impact is obvious. This reality has led the Commission to comment that amending the 100-to-1 ratio “would better reduce the gap [in sentencing between whites and African Americans] than any other single policy change, and it would dramatically improve the fairness of the federal sentencing system.”

Legislation to reform the crack cocaine penalty structure in this year’s Congress is being considered by both Democratic and Republican members. Rep. Rangel (D-NY) will be introducing an equalization bill, and Sen. Sessions (R-AL) has indicated that he will be proposing a reform measure as well.

By Ryan King