Yesterday the Senate unanimously approved a bill that addresses the unjust, arbitrary treatment of crack cocaine offenses. Under rules enacted by Congress in the 1980s, five grams of crack cocaine is treated the same as 500 grams of cocaine powder, triggering a five-year mandatory minimum sentence; likewise, 50 grams of crack triggers the same 10-year penalty as five kilograms of powder. The distinction, which is not based on any inherent difference between the smoked and snorted forms of the drug, has led to striking racial disparities in punishment. But instead of eliminating the distinction, as a bill passed by the House last summer would do, the Senate bill would reduce the 100-to-1 weight ratio, making it a less outrageous but equally arbitrary 18 to 1. The bill also would eliminate mandatory minimum sentences for simple possession of crack by first-time offenders. The American Bar Association says "the unanimous Senate vote on this long-contentious issue represents a rare bipartisan achievement in the criminal justice reform area." Jasmine Tyler of the Drug Policy Alliance is more ambivalent:
Today is a bittersweet day. On one hand, we've moved the issue of disparate sentencing for two forms of the same drug forward, restoring some integrity to our criminal justice system. But on the other hand, the Senate, by reducing the 100 to 1 disparity to 18 to 1, instead of eliminating it, has proven how difficult it is to ensure racial justice, even in 2010.
Julie Stewart of Families Against Mandatory Minimums has a similarly mixed reaction:
This is a big improvement over current crack sentencing penalties. It could lower sentences for almost 3,000 people each year. However, the bill is not retroactive and would not help anyone who is already in prison serving a crack cocaine sentence. So, after working on this issue for almost as long as FAMM has been in existence, I'm not thrilled that this is all we got.
In a 2007 column, I explained why the crack gap makes no sense.