The Crack-Powder Cocaine Disparity: A Chronology

There will be a Democratic debate tomorrow in Iowa, where the January 3 primary essentially is a toss-up between Hillary Clinton, Barack Obama and John Edwards.

In light of the Supreme Court decision this week in Kimbrough v. U.S. (pdf)authorizing federal judges to consider the great disparity in penalties for crack and powder cocaine offenses in deciding whether to sentence crack defendants below the federal sentencing guidelines ("...it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence “greater than necessary” to achieve §3553(a)’s purposes") and yesterday's decision by the U.S. Sentencing Commission to make retroactive the recent and relatively minor crack cocaine sentencing guideline reductions, I'm hoping the candidates will be asked their positions on mandatory minimum sentences and what they will do as President to change them.

I've put together a chronology of how the mandatory sentences came about and what efforts to change or resist changing them have been made since.

This is not a law review article or a legal brief. Much of the material comes from articles I wrote between 1995 and 1998, published in The Champion, the magazine of the National Association of Criminal Defense Lawyers (available on Lexis.com in the criminal law databases of “Professional and Practice Materials” and “The Champion.) I end with a few reform recommendations for Congress on all drug penalties.

I hope that during the course of this presidential campaign, at least one of the Democratic candidates will endorse reform of the mandatory minimum sentencing laws and ending our our over-reliance on incarceration as punishment for drug offenders. It will be a big factor in which candidate I ultimately decide to support -- and it may affect my enthusiasm for supporting the ultimate Democratic candidate. It's disheartening enough that none of the top three Democrats running oppose the death penalty. It may be the final straw if they also won't support significant mandatory minimum and other drug sentencing reform. We don't need more studies. It's been studied enough. It's time for them to promise action.

The Ronald Reagan Years:

  • Mandatory minimum drug sentences were enacted in 1986. This was the first time Congress passed mandatory minimum sentences since the Boggs Act in 1951.
  • The U.S. Sentencing Guidelines went into effect in 1987.
  • 1988 brought The Anti-Drug Abuse Act of 1988 which established a federal death penalty for "drug kingpins.

These policies continued under George H. Bush.

Under Bill Clinton and George W. Bush

The Violent Crime Control and Law Enforcement Act of 1994 included a directive to study federal sentencing policy related to all forms of cocaine, and to recommend either retention or modification of the crack and powder sentencing guidelines. The 200 page report, Special Report to Congress: Cocaine and Federal Sentencing Policy, was released in February 1995.

On April 10, 1995, the United States Sentencing Commission proposed amendments to the Federal Sentencing Guidelines reducing the penalty levels for offenses involving crack cocaine to the same levels applicable to powder cocaine offenses.

The amendments would have deleted the definition of "cocaine base" and in its place inserted a new definition stating, "'Cocaine,' for the purposes of this guideline, includes cocaine hydrochloride, cocaine base, and crack cocaine."

The Sentencing Commission also voted to recommend that Congress equalize its mandatory sentencing statutes on cocaine.

Had Congress done nothing, the guideline change equalizing penalties for crack and powder cocaine offenses would have become law in November, 1995. The guideline changes would not have affected mandatory minimum penalties, and there was no provision for retroactivity.

Attorney General Janet Reno, speaking on behalf of the Department of Justice, opposed the reductions, and the Clinton Administration was able to get a bill introduced and passed in Congress rejecting the proposed changes.

On October 30, 1995, President Clinton signed into law the legislation disapproving the Sentencing Commission's proposed guideline amendment that would have equalized the penalties for crack and powder cocaine offenses. The legislation called for further study and a report by the Sentencing Commission on the appropriate penalty ratio between the two forms of cocaine.

In 1996, the Supreme court upheld the constitutionality of the 100:1 crack-to-powder cocaine sentencing ratio.in Armstrong v. United States, 116 S. Ct. 1480 (1996).

The Commission's new study on cocaine sentencing was released April 29, 1997. Again, the Commission recommended that Congress reduce the 100:1 ratio of crack to powder cocaine penalties. This time, however, instead of recommending the penalty scheme be equalized, the Commission urged Congress to reduce the disparity from 100:1 to 5:1.

The Commission also urged that Congress revise the mandatory minimum sentencing laws so that the amount of crack cocaine necessary to trigger a five-year mandatory minimum sentence would increase from five grams to somewhere between 25 and 75 grams, and that the amount of powder cocaine necessary to trigger the same five-year penalty would decrease from 500 grams to somewhere between 125 and 375 grams.

Also on April 29, President Clinton issued a statement commending the Commission on the report, and directing the Attorney General and the
"Drug Czar" to study it and submit their own recommendations on federal cocaine sentencing.

On July 3, 1997, Attorney General Janet Reno and the Drug Czar recommended a reduction in the crack/powder sentencing guideline ratio to levels where 25 grams of crack cocaine and 125 grams of powder cocaine would be required to trigger
the five-year mandatory minimum penalty.

On July 22, the Clinton Administration publicly proposed reducing the ratio further than the Attorney General and Drug Czar. The Administration's proposal called for a reduction of the ratio to 10:1, whereby 25 grams of crack and 250 grams of powder cocaine would result in the imposition of the five-year mandatory minimum sentence.

On September 11, Sen. Wayne Allard (R-CO) introduced S.1162, the "Powder-Crack Cocaine Penalty Equalization Act of 1997." It proposed leaving the crack penalties in place as they were, raising the powder penalties to match them. This proposal enjoyed some support in Congress and others followed suit by introducing similar bills, including then Senate Judiciary Committee Chairman Orrin Hatch (R-UT) (S. 260) ( co-sponsored by then Senate Judiciary Committee Members Spencer Abraham (R-MI) , Dianne Feinstein (D-CA), Charles Grassley (R-IA) , Jon Kyl (R-AZ) and Senator Charles Robb (D-VA); then Senator John Breaux (D-La) (S. 209); and then House Rules Committee Chairman Gerald Solomon (R-NY) (H.R. 332).

Also in September, over two dozen federal appeals and district court judges -- all of whom formerly served as United States Attorney -- submitted a letter to the Senate and House Judiciary Committees. The letter flatly and persuasively opposes the proposals for increasing powder cocaine penalties, and urges the elimination or
drastic reduction of the current disparity in the crack/powder cocaine penalty schemes.

In 1998, Sens. Allard, Hatch, Abraham et. al. introduced S. 2033, "The Powder Cocaine Mandatory Minimum Sentencing Act of 1998, which " would amend the Controlled Substance Act to reduce the threshold for mandatory minimum five-year prison terms for powder cocaine offenses from 500 grams to 50 grams. The 10-year mandatory minimum threshold would be triggered by offenses involving 500 grams of powder cocaine, instead of the current 5 kilograms.

The Senate ignored the U.S. Sentencing Commission's recommendation to reduce the penalties for crack cocaine offenses from the powder/crack cocaine ratio of 100 to 1, to 5 to 1. It also ignored the Clinton Administration's proposal to reduce the ratio to 10 to 1. It ignored everyone and did nothing.

As of today, no changes have been made to the mandatory minimum sentencing statutes. The mandatory minimum penalties under 21 U.S.C. § 841 (b) (1) (A) and (B) remain ten years for offenses involving 50 grams or more of crack (as opposed to 5 kilograms or more of powder), and five years for those involving 5 grams or more of crack (as opposed to 500 grams or more of powder cocaine).

No changes were made to the Sentencing Guidelines until the reductions that went into effect November 1, 2007, and which will become retroactive on March 1, 2008.

  • Why Crack Cocaine Penalties Should be Reduced (from the Supreme Court's Kimbrough decision this week, citations removed for ease of reading:)
Crack cocaine was a relatively new drug when the 1986 Act was signed into law, but it was already a matter of great public concern: “Drug abuse in general, and crack cocaine in particular, had become in public opinion and in members’ minds a problem of overwhelming dimensions.”

Congress apparently believed that crack
was significantly more dangerous than powder cocaine in that: (1) crack was highly addictive; (2) crack users and dealers were more likely to be violent than users and dealers of other drugs; (3) crack was more harmful to users than powder, particularly for children who had been exposed by their mothers’ drug use during pregnancy; (4)crack use was especially prevalent among teenagers; and
(5) crack’s potency and low cost were making it increasingly popular.

Based on these assumptions, the 1986 Act adopted a
“100-to-1 ratio” that treated every gram of crack cocaine as the equivalent of 100 grams of powder cocaine. The Act’s five-year mandatory minimum applies to any defendant accountable for 5 grams of crack or 500 grams of powder, 21 U. S. C. §841(b)(1)(B)(ii), (iii); its ten-year mandatory
minimum applies to any defendant accountable for 50 grams of crack or 5,000 grams of powder, §841(b)(1)(A)(ii), (iii).

Although the Commission immediately used the 100-to-1 ratio to define base offense levels for all crack and powder offenses, it later determined that the crack/powder sentencing disparity is generally unwarranted. Based on additional research and experience with the 100-to-1 ratio, the Commission concluded that the disparity “fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act and the 1986 Act.” In a series of reports, the Commission identified three problems with the crack/powder disparity.

First, the Commission reported, the 100-to-1 ratio rested on assumptions about “the relative harmfulness of the two drugs and the relative prevalence of certain harmful conduct associated with their use and distribution that more recent research and data no longer support.”....

...[The 2007 report found the ratio Congress embedded in the statute far “overstate[s]” both “the relative harmfulness” of crack cocaine, and the “seriousness of most crack cocaine offenses”). For example, the Commission found that crack is associated with “significantly less trafficking -related violence . . . than previously assumed.” It also observed that “the negative effects of prenatal crack cocaine exposure are identical to the negative effects of prenatal powder cocaine exposure.” The Commission furthermore noted that “the epidemic of crack cocaine use by youth never materialized to the extent feared.”

Second, the Commission concluded that the crack/powder disparity is inconsistent with the 1986 Act’s goal of punishing major drug traffickers more severely than low-level dealers. Drug importers and major traffickers generally deal in powder cocaine, which is then converted into crack by street-level sellers. But the 100-to-1 ratio can lead to the “anomalous” result that “retail crack dealers get longer sentences than the wholesale drug distributors who supply them the powder cocaine from which their crack is produced.”

Finally, the Commission stated that the crack/powder sentencing differential “fosters disrespect for and lack of confidence in the criminal justice system” because of a “widely-held perception” that it “promotes unwarranted
disparity based on race.” Approximately 85 percent of defendants convicted of crack offenses in federal court are black; thus the severe sentences required by the 100-to-1 ratio are imposed “primarily upon black offenders.”

.....In the Commission’s view, “some differential in the quantity-based penalties” for the two drugs is warranted because crack is more addictive than powder, crack offenses are more likely to involve weapons or bodily injury, and crack distribution is associated with higher levels of crime. But the 100-to-1 crack/powder ratio, the Commission concluded, significantly overstates the differences between the two forms of the drug. Accordingly, the Commission recommended that the ratio be “substantially” reduced.

What Needs to Be Done

Ideally, in my view, all mandatory minimum sentences should be abolished. Since that is unlikely to occur, even with a Democrat as President and a Democratic Congress, the penalties for crack and powder cocaine should be equalized at the current powder cocaine levels – 500 grams of crack, not 5, should be required for a 5 year mandatory minimum sentence and 5 kilograms of crack, not 50 grams, should be required to trigger the ten year mandatory minimum sentence. There should be no mandatory minimum sentences at all for first time offenders who merely possess either drug. Powder cocaine penalties should remain the same.

The majority of medical and scientific experts agree that objective scientific data does not support the notion that crack is more 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 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. Smoked crack has not been proven to be more addictive than injected powder.

Moreover, 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.

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.

The Sentencing Commission can consider enacting "harm-specific enhancements" to the sentencing guidelines that would allow federal judges to enhance a drug offender's sentence if other serious crimes are committed during the drug offense.

As for funding, Congress should revise our national drug spending priorities to focus on prevention and treatment programs, not construction of more prisons or funding of more drug agents and prosecutors.

There should be an increase in the use of drug treatment within the criminal justice system through drug courts and treatment in prison and if desired by the offender, while on probation and supervised release. Congress should also establish alternative sentencing options for non-violent drug and property offenders, recognizing that incarceration of these offenders only makes prison-overcrowding worse.

< How Will the Courts Resentence Crack Cocaine Offenders? | R.I.P. Ike Turner >
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  • Display: Sort:
    The Crack-Cocaine Disparity (5.00 / 1) (#6)
    by Therman on Thu Dec 13, 2007 at 01:24:58 PM EST
      My name is Therman and I'm from Pgh, Pa. I've been on this site a few times lately covering the outcome of the court decisions on the 100:1 ratio for crack offenders. As a young black male I've often wondered how some American laws ever came to be. It almost seems inconceivable to me that edjucated, god fearing, and let our culture tell it, rightminded humans could still behave this way 150yrs out of slavery. Its as if chattle remains chattle in our country's mind. But given the shift in behavior, like the admittance of the Crack law being unjust, I can begin to change my perspective. And because of your open and candid alligence to truth instead of obedience, I can begin to defend our system and not always condemn it. I once heard that neutrality is always on the side of the oppressor. Most people would rather go along to get along. But by turning a blind eye to these issues when aware of them only allows them to persist. The hands off approach of our society and the insensitivity shown is long lasting. However, if there's any hope it starts in truth and the journalism here speaks loudly to overall change a shift in the zeit.
     Good Day my friend!

    I recall the discussion about crack babies (none / 0) (#1)
    by JSN on Wed Dec 12, 2007 at 09:44:06 PM EST
    causing severe educational and other disabilities for children but that did not seem to have happened. Has anyone followed up that aspect of the story?

    The Supreme Court just addressed it (none / 0) (#2)
    by Jeralyn on Wed Dec 12, 2007 at 09:46:36 PM EST
    quoted above, in Kimbraugh:

    It also observed that "the negative effects of prenatal crack cocaine exposure are identical to the negative effects of prenatal powder cocaine exposure."

    It appears that it may have been a matter (none / 0) (#3)
    by JSN on Wed Dec 12, 2007 at 10:33:26 PM EST
    of no science instead of bad science.

    Moral Panic (none / 0) (#4)
    by 1980Ford on Thu Dec 13, 2007 at 07:00:36 AM EST
    The Right loves moral panics, from the war on drugs to the war on terror. The media loves moral panics too, sells advertising.

    Thanks for the excellent summary. Spot on.

    Excellent!!! (none / 0) (#5)
    by AscotMan on Thu Dec 13, 2007 at 08:03:27 AM EST
    Now I remember why I like coming here.

    Well done and thanks, JM!