Crack Powder Penalty Debate

Matt Yglesias picks up on our "dumb law of the week" post criticizing Iowa for passing a law to equalize the crack/powder cocaine sentencing ratios by raising the penalties for powder offenses. He mentions there were prior federal attempts to do so which failed to pass Congress. Very true.

Sen. Wayne Allard (R-CO) introduced S.1162, the "Powder-Crack Cocaine Penalty Equalization Act of 1997." Then there was S. 2033, "The Powder Cocaine Mandatory Minimum Sentencing Act of 1998 and S. 260 (which almost made it to a floor vote.) Co-sponsors, and sponsors of similar bills, included: Senate Judiciary Committee Chairman Orrin Hatch (R-UT) ; Senate Judiciary Committee Members Spencer Abraham (R-MI); Dianne Feinstein (D-CA) ; Charles Grassley (R-IA) (same), Jon Kyl (R-AZ) ; Senator Charles Robb (D-VA) ; Senator John Breaux (D-La) ; and House Rules Committee Chairman Gerald Solomon (R-NY).

While those bills were pending, over two dozen federal appeals and district court judges -- all of whom formerly served as United States Attorney -- submitted a joint letter to the Senate and House Judiciary Committees that flatly and persuasively opposed these proposals.

The vast majority of medical and scientific experts agree that objective scientific data does not support the notion that crack is more addictive or dangerous than powder cocaine. They are two forms of the same drug. The psychotropic and physiological effects of crack and powder cocaine are the same. The difference between the two lies solely in the way the drug is ingested -- powder cocaine is snorted through the nose or injected intravenously while crack cocaine is smoked in a pipe.

Since the enactment of this disparate penalty scheme, it has been statistically demonstrated time and again that the overwhelming majority of convicted crack offenders are African-American, while the vast majority of convicted powder cocaine offenders are white. While 2/3 of crack users are white or Hispanic, the vast majority of federally-convicted crack offenders are African-American. According to Bureau of Justice statistics: in 1994, 85 percent of the defendants convicted of possession of crack cocaine and 88 percent of those convicted of crack cocaine distribution offenses were African-American. As a result of the current sentencing scheme, black men and women are forced to serve far longer prison terms than white men and women.

In recommending a reduction of the crack/powder cocaine sentencing ratios, the United States Sentencing Commission adequately took into account the only possible rational concern underlying the current disparity -- the problem of violence that has been associated with crack cocaine offenses. It has proposed enacting "harm-specific enhancements" that would allow federal judges to enhance a drug offender's sentence if other crimes are committed during the drug offense.

We must resist these perverse bills that unjustly, irrationally and inefficiently raise the sentences for powder cocaine offenses to the draconian level of crack sentences. While such bills would eliminate racial disparity, two wrongs do not make a right.

[source: Merritt, Jeralyn, Congress Considers Bill to Make Penalties for Powder and Crack Cocaine Equally Bad, The Champion , December 1997 at 53 and Merritt, Jeralyn, Juvenile Injustice; Powder/Crack Cocaine Penalty Update; The Champion, April 1998 at 62.. ] (Articles no longer available online)

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