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Crack and Cocaine Disparity

The Powder-Crack Cocaine Penalty Problem 
Update - December 2, 2011

RECENT POLICY CHANGE:

The Fair Sentencing Act of 2010 (FSA), which was signed by President Obama on August 3, 2010, will change the sentencing disparity between crack and powder cocaine from 100:1 to 18:1. The FSA amended the Controlled Substances Act and the Controlled Substances Import and Export Act to:

(1) Increase the amount of a controlled substance or mixture containing a cocaine base (i.e., crack cocaine) required for the imposition of mandatory minimum prison terms for trafficking. A mandatory minimum will be imposed for possession of 28 grams or more of crack cocaine instead of 5 and 280 grams of powder cocaine instead of 28.
(2) Increase monetary penalties for drug trafficking and for the importation and exportation of controlled substances.
(3) Eliminate the five-year mandatory minimum prison term for first-time possession of crack cocaine.


The FSA further directs the United States Sentencing Commission to:

(1) Review and amend its sentencing guidelines to increase sentences for defendants convicted of using violence during a drug trafficking offense.
(2) Incorporate aggravating and mitigating factors in its guidelines for drug trafficking offenses. 
(3) Report to Congress about the effectiveness of drug court programs receiving funds under the Omnibus Crime Control and Safe Streets Act of 1968, within one year after the FSA’s enactment.


The FSA changed sentencing for those charged after it was passed. However, over 12,000 federal prisoners serving time for crack-related crimes were still serving unfair sentences. It was not till June 30, 2011 that the United States Sentencing Commission voted unanimously to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the Fair Sentencing Act of 2010. Retroactivity of the amendment became effective on November 1, 2011, the same day that the proposed permanent amendment took effect.

HISTORY:

Prior to the Fair Sentencing Act, trafficking in 5 grams of crack cocaine or 500 grams of powder cocaine incurred a mandatory minimum sentence of 5 years imprisonment (up to 40 years). Trafficking in 50 grams of crack cocaine or 5000 grams of powder cocaine incurred a mandatory minimum sentence of 10 years imprisonment (up to life imprisonment). Persons convicted of aiding and abetting trafficking or being participants in conspiracies to traffic are also subject to these penalties. The sentencing disparity between crack and powder cocaine was 100:1.

In FY 2003, 11,451 persons were sentenced in Federal court for trafficking or possessing cocaine, out of 26,023 total drug cases, and 70,258 total criminal offenders sentenced by Federal courts. One in six of all Federal offenders are convicted of a cocaine offense. (Source: US Sentencing Commission, 2003 Datafile, USSCFY03).

On April 16, 2002, twenty-eight judges of the U.S. Courts of Appeals or the U.S. District Courts who were formerly United States Attorneys, wrote to the U.S. Sentencing Commission condemning the current disparity in powder and crack cocaine laws and sentencing guidelines, declaring they "cannot be justified and results in sentences that are unjust and do not serve society's interest."

However, the U.S. Department of Justice continued to support unfair crack cocaine sentences and urged stronger powder cocaine sentencing at the lower levels. On March 19, 2002, Deputy Attorney General Larry Thompson told the U.S. Sentencing Commission, "After thorough study and internal debate, we have concluded that the current federal policy and guidelines for sentencing crack cocaine offenses are proper. It would therefore be more appropriate to address the differential between crack and powder cocaine by recommending that penalties for powder cocaine be increased. . . . Lowering crack penalties would simply send the wrong message- the message that we care more about crack dealers than we do about the people and the communities victimized by crack. That is something we simply cannot support."

In May 2002, the U.S. Sentencing Commission submitted a comprehensive report to Congress, Cocaine and Federal Sentencing Policy. The U.S. Sentencing Commission found in its report:
(1) The current penalties exaggerate the relative harmfulness of crack cocaine. They found 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 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. (Emphasis added). They found that "Recent data indicate that the epidemic of crack use by youth never materialized to the extent feared."
(2) Current penalties sweep too broadly and apply most often to lower level offenders. They found that over one-quarter of Federal crack cocaine offenses involved relatively small drug quantities (less than 25 grams). Only 2.7% of Federal powder cocaine offenses involved less than 25 grams. They found especially disparate penalties for small offenders. The average sentence for trafficking less than 25 grams of powder cocaine was 13.6 months. The average sentence for trafficking less than 25 grams of crack cocaine was 64.8 months, over 5 years.
(3) Current quantity-based penalties overstate the seriousness of most crack cocaine offenses and fail to provide adequate proportionality. "The current penalty structure was based on many beliefs about the association of crack cocaine offenses with certain harmful conduct B particularly violence B that are no longer accurate."
(4) Current penalties' severity mostly impacts minorities. In 2000, about 85 percent of Federal crack cocaine offenders were black. Thus the impact of "unduly severe penalties...falls primarily upon black offenders."


The Commission recommended unanimously:
(a) That the threshold for the 5-year mandatory minimum be raised from 5 grams to at least 25 grams, and the 10-year threshold be raised from 50 grams to at least 250 grams. They also recommend the repeal of the simple possession of crack cocaine mandatory minimum sentence of 5 years.
(b) Specific sentencing enhancements to account for involvement of weapons, infliction of bodily injury from violence, distribution to persons under 21, distribution near schools and colleges, etc.
(c) That the current powder cocaine mandatory minimum threshold quantities be maintained at current levels of 500 and 5000 grams.

This report helped spur the push for change.

WHAT YOU CAN DO:

Share your opinion with your Representative and Senators. Find out who your elected officials are here.

FURTHER READING:
Getting Justice off Its Junk Food Diet (2006) - Eric E. Sterling.
Fundamental Fairness Takes a Powder (2006) - San Francisco Chronicle
Take Another Crack at that Cocaine Law (2006) - Los Angeles Times
U.S. Sentencing Commission Votes Unanimously to Apply Amendment Retroactively for Crack Cocaine Offenses (2007) - United States Sentencing Commission Press Release
U.S. Sentencing Commission Votes Unanimously to Apply Fair Sentencing Act of 2010 Amendment to the Federal Sentencing Guidelines Retroactively (2011) - United States Sentencing Commission Press Release
Crack-cocaine decision made retroactive (2011) - Columbus Dispatch (Associated Press)
Myth vs. Fact: 2011 Crack Guideline Amendment Retroactivity is Safe, Fair, Cost-Effective, and Authorized (2011)- Families Against Mandatory Minimums