Last week the Senate unanimously passed legislation that would reduce the sentencing disparity between crack and powder cocaine. The Fair Sentencing Act of 2010 introduced by Sen. Dick Durbin would repeal mandatory sentences for simple possession of cocaine, and bring the current 100 to one ratio for crack versus powder penalties down to 18 to one. It would be the first bill to successfully revisit federal sentencing mandates created in the 1980s under the Anti-Drug Abuse Act.
Advocates have been working for over twenty years to bring parity to crack and powder sentencing laws. As the bill moves to the House, they continue to fight to eliminate the disparity.
It currently takes 500 grams of powder cocaine to trigger the same five-year prison sentence that being caught with just 5 grams of crack does. Crack, a cheap derivative of its more refined sibling, powder cocaine, is more accessible in poorer communities of color. It was also once seen as more addictive than powder and especially when it was as an emerging drug in the 80s, more dangerous. When the Anti-Drug Abuse Act was being considered, policymakers attributed the sharp spikes in drug-related inner-city violence to the concurrent rise in crack’s popularity and availability at the time.
But the resulting penalties and prison sentences have been racially skewed. The statistics are plentiful, and very telling: 85 percent of people convicted of crack offenses are Black, even though Blacks make up just 30 percent of crack users. In 2005, the Department of Justice reported that 55 percent of federal crack offenders were street level dealers, not the kingpins who sold them their drugs in powder form. And every year, almost 5,000 people, most of them Black men, are incarcerated for these relatively minor drug offenses.
According to Douglas Berman, a criminal law professor at Moritz Law School at Ohio State University, when the Anti-Drug Abuse Act was passed, there was a vague awareness that the laws would lead unequal impacts. “My sense is that crack was perceived to be a very dangerous drug that was uniquely prevalent in inner cities,” said Berman, but added, “Anybody who understood that inner cities were disproportionately filled with people of color had to connect the dots that…particularly at the federal level, impact would be so dramatically racially skewed.”
As for how that informed the decision to set the original mandatory minimums at a 100:1 ratio, Berman says that, too was informed by the hysteria and concern at the time about crack as a “new, devil drug.” “It wasn’t a question about whether or not it would be severe, it was just about how severe,” he said.
In the intervening 20 years, that the mandatory minimums instituted in the Anti-Drug Abuse Act enabled further by the War on Drugs, have led to such racially disparate outcomes, is no longer controversial; it’s widely accepted fact. The U.S. Sentencing Commission recommended way back in 1995 that Congress take action to address the disparity, and the Obama administration’s Eric Holder-led Department of Justice has advocated complete elimination of the disparity.
And yet we’re at an 18 to 1 compromise right now. It seems an arbitrary ratio, in light of the facts. The questions folks are asking right now are about political will and grumblings about the inevitable compromises that politics demands. Will the Obama administration and the House stick their neck out to try for a better deal? And if all involved parties agree that the current 100 to one ratio is not morally right or justifiable, the logical step seems to be to heed science, research and federal bodies’ suggestions and eliminate the disparity altogether. Discussing various ratios at this point is really like asking: how knowingly unfair and inequitable should drug sentencing laws be?