Crack Sentencing Reform

The 82 Percent Solution


Congress passed the Anti-Drug Abuse Act of 1986 in the middle of an election season, just a few months after the death of basketball star Len Bias from an apparent cocaine overdose. The law created extraordinarily harsh penalties for offenses involving crack cocaine, the form of the drug that many legislators erroneously thought Bias had used. Only 16 members of the House and two members of the Senate voted against it.

Last summer Congress finally revised the draconian crack sentences it had created nearly a quarter of a century before. The U.S. Sentencing Commission estimates that the changes, which do not apply retroactively, will benefit about 3,000 offenders a year, reducing sentences by an average of 27 months. The reform bill, signed by President Barack Obama on August 3, received unanimous approval from the Senate in March and passed by a voice vote in the House at the end of July.

The dramatic reversal reflected a new consensus that the legal distinction between the smoked and snorted forms of cocaine, which had a disproportionate impact on black defendants, was based on irrational fears. Under the 1986 law, five grams of crack cocaine triggered the same five-year mandatory minimum sentence as 500 grams of cocaine powder, while the penalty for 50 grams of crack, 10 years, was the same as the penalty for five kilograms of powder. The implication—that crack is 100 times as dangerous as cocaine powder—has no scientific basis, since both forms of the drug contain the same active ingredient.

Instead of eliminating the sentencing gap entirely (a step supported by Obama but opposed by some conservatives), Congress reduced the 100-to-1 weight ratio by 82 percent. From now on, 28 grams of crack will get you five years, while 280 will get you 10. The reform bill also eliminated the mandatory minimum sentence for simple possession of crack (as opposed to possession with intent to distribute), which Congress created in 1988. According to Families Against Mandatory Minimums, this is "the first time that Congress has repealed a mandatory minimum drug sentence since the Nixon administration."