Drug Policy

Mind the Gap

Fixing the unjust disparity in punishment between crack and cocaine powder


In 1984 Congress established the U.S. Sentencing Commission and charged it with writing guidelines aimed at eliminating unjustified disparities in punishment for federal crimes. Two years later, Congress created a new unjustified disparity, passing a law that treated crack cocaine offenses far more harshly than offenses involving cocaine powder.

Recent decisions by the sentencing commission and the U.S. Supreme Court will slightly reduce that disparity. Congress should finish the job by eliminating a bizarre feature of U.S. drug policy that even prohibitionists have a hard time defending.

Federal law treats crack, a smokable form of cocaine, as if it were 100 times worse than cocaine powder, a snortable form of the same drug. Five grams of crack (less than a fifth of an ounce) triggers the same five-year mandatory minimum sentence as 500 grams (more than a pound) of cocaine powder. Fifty grams of crack (less than two ounces) is enough for a 10-year sentence, which requires five kilograms (more than 11 pounds) of cocaine powder.

This 100-to-1 ratio, which the sentencing commission copied in setting penalties for amounts of crack below, between, and above the mandatory minimum cutoffs, undermined an important goal of the sentencing guidelines, which were supposed to distinguish between major traffickers and small-time dealers. Under the penalties created by Congress, a retailer who converts a few grams of cocaine powder into crack, or a user possessing as few as 10 doses, can get a longer sentence than a wholesaler carrying a much larger quantity of powder.

Overall, sentences for offenses involving crack are three to six times longer than sentences for offenses involving the same amount of cocaine powder. This injustice has fallen disproportionately on blacks, who account for more than four-fifths of federal crack offenders but only a quarter or so of cocaine powder offenders.

The sentencing commission, having concluded that the 100-to-1 gap between crack and cocaine powder has no scientific basis, has been urging Congress to address the disparity since 1995. It also has tried to shrink the gap on its own, only to be overruled by Congress.

In May, however, the commission sent Congress an amendment that reduces the disparity, and this time Congress did not interfere. Last week the commission unanimously voted to make the change retroactive, meaning that 19,500 crack offenders currently in federal prison will be eligible for resentencing. On average, the commission estimates, they could receive a sentence reduction of 27 months, from 12.7 years to 10.4 years.

The day before the commission's decision on retroactivity, the Supreme Court ruled that judges may impose sentences below the range recommended by the federal guidelines based on their disagreement with the differential treatment of crack and cocaine powder. The case involved a crack dealer who was given a sentence of 15 years instead of the 19 to 22.5 years indicated by the guidelines.

In another decision issued the same day, the Court emphasized that appeals courts should review sentences that depart from the guidelines "under a deferential abuse-of-discretion standard." Both rulings elaborated on a 2005 decision in which the Court made the sentencing guidelines merely advisory after concluding that mandatory guidelines required judges to determine facts that automatically triggered longer sentences, thereby violating the Sixth Amendment right to trial by jury.

But the sentencing commission and newly empowered judges can do only so much to address the irrational, unjust disparity between crack and cocaine powder. Only Congress can change the mandatory minimum sentences required by statute.

Members of Congress have proposed bills that would shrink or eliminate the gap between crack and cocaine powder, but some want to do so partly by increasing the penalties for powder possession. Since there's no reason to believe cocaine sentences are insufficiently severe, this approach is a cop-out. Two decades after fear of a new drug fad drove Congress to establish draconian crack sentences, legislators should not let fear of seeming soft on drugs stop them from correcting that mistake.

© Copyright 2007 by Creators Syndicate Inc.

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  1. The curious thing in the Supreme Court decision is Justice Thomas’ assertion in his dissent to the 7-2 ruling that, though he hints that he feels the crack vs. powder disparity is wrong, he feels that SCOTUS does not have the constitutional authority to give judges the discretion to ignore a law passed by Congress, and that instead the decision to be lenient must be given to juries.

    How do people here feel about Thomas’ dissent?

  2. I have no opinion regarding Doubting Thomas, but I’d like to see more awareness amongst our “peers”–those folks who sit on juries–as to their right to nullify when they feel the law is unjust. Too many think they must uphold the law even when they (privately) know the law is dubious if not an outright travesty.

  3. I think Thomas is right from a strictly legal standpoint.

    However, I also think that providing judges the widest latitude to exercise mercy is a great idea. The legislatures should abandon this business of minimum sentences.

  4. Do they even allow you to use jury nullification as a jury instruction, anywhere?

  5. legislators should not let fear of seeming soft on drugs stop them from correcting that mistake.

    I’ll not be holding my breath.

  6. I haven’t read Thomas’ dissent, but I assume, from a libertarian or constitutionalist persepctive, that you could simply say the feds had no authority to pass the law in the first place. Perhpas that wasn’t the issue in the case — I haven’t RTFA either — but it’s a thought.

  7. An improvemnent, IMHO.

    …as to their right moral duty to nullify when they feel the law is unjust.

  8. Do they even allow you to use jury nullification as a jury instruction, anywhere?

    I doubt it. By “nullification” I mean: find the defendant not guilty if the punishment is grossly disproportionate to the “crime”. All the better if you consider drug use a victimless crime. Most libertarians do. I’d hold out for acquittal in such a circumstance, regardless of the evidence.

  9. Problem is, you’d be hard pressed to convince the yokels in the jury to go along with you.
    “Theory, schmeary, I wanna go home!”

  10. to be honest i don’t see why people are so pissed off about this law. Crack IS more addictive, the effects are felt quicker, therefore it is stronger, therefore you come down quicker, there fore you have more severe cravings. Just because more black people do this drug doesn’t mean shit. Why don’t black people just do cocaine instead?? Its stupid!

  11. maytown:

    perhaps because crack is less expensive on a per-high basis?

  12. Crack use does have significantly different social consequences than does powdered cocaine.

    Crack produces short, intense mood elevations followed by a sustained intense depression. Powdered cocaine produce a less intense and longer high with less rebound.

    The differing pattern of highs produces different patterns of addict behaviors. Crack addicts tend to migrate to physical location where they can have daily or even hourly access to the drug. This concentration of addicts has severe consequences for the locale involved. Powdered cocaine does not produce this pattern (although injected cocaine did).

    Stiffer sentencing for crack arose in part out the realization in the 80’s that crack use imposed significantly higher cost on society, and often hit the most vulnerable members of society hardest, than did powdered cocaine.

    None of this means the harsher sentences were justified but there was a prima facia case for treating the two forms of the drug as presenting different levels of threat.

  13. I think Thomas is right from a strictly legal standpoint.

    Yeah, me too, although only with respect to dumbshit laws that aren’t actually unconstitutional. The crack sentencing disparities could be tossed out as “cruel and unusual”, taking powder sentencing as your baseline.

  14. I’m all for reducing and reforming drug law sentencing but…

    This whole kerfuffle seems to strike me as an episode of not remembering how we got to where we are.

    As I recall, the reason crack sentences were so stiff was that it was seen as a scourge on the most vulnerable and poorest Americans. Powdered cocaine was seen as only affecting hot-shot urban professionals, whereas crack had a different impact on a different demographic. What was seen 20 years ago as an attempt to deal harshly with those who victimized the poorest Americans, we now see as a further victimization of that same demographic.

    Again, I’m all for reform in this area, but it seems that we’re acting all shocked and surprised that there would be a disparity at all.

  15. Prolefeed,

    Thanks for bringing up the Thomas dissent. I’ll have to read it. But based on your post, it sounds like Thomas was attempting to be correct rather than be fair. At face value, Thomas’ argument may hold some water.

  16. Many jury nullification “advocates” make the astonishing claim that a jury can nullify a law; vote it out of existance, erase it from the rolls, wish it into the cornfield, etc. That’s utter nonsense.

    However, a jury can always aquit for any reason they want. Hell, they aquitted O.J.! What jury nullification really means, is that if enough juries started aquitting in drug cases, prosecutors will stop wasting their time pursuing drug cases.

  17. Brandybuck,

    To get an acquittal, you’d have to get all 12 members of the jury to agree the law was unjust. Anything else will result in a hung jury and a second trial, as there is no way a prosecutor will risk giving up and being painted as soft on drugs.

    Add to that the fact that judges actually instruct the jury that they MUST apply the law as written, and are only supposed to decide on matters of fact. This is a blatant disregard for the Anglo-American tradition of jury nullification, but that’s what we have now.

  18. Add to that the fact that judges actually instruct the jury that they MUST apply the law as written, and are only supposed to decide on matters of fact.

    And, as an officer of the court (and member of the bar) you will almost NEVER get an attorney to stand up in court and argue for nullification. They tend to take away his decoder ring and membership card if he does.

  19. However, a jury can always aquit for any reason they want.

    If they keep their mouths shut. What happens, though, if a jury member says that he acquitted because he didn’t agree with the law as written?

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