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End the Crack/Powder Cocaine Sentencing Disparity

Here’s a piece I recently published in Roll Call about the disparity in sentences handed out for possessing powder versus crack cocaine.

End the Crack/Powder Cocaine Sentencing Disparity

Elena Kagan’s nomination for the Supreme Court has once again reminded America that fairness and equal treatment are fundamental to the success of the rule of law. One of the most important criminal justice debates in recent history centers on the substantial difference in prison sentences for crack versus powdered cocaine possession, a disparity that has not only encouraged a misapplication of limited law enforcement resources, but more importantly, has been the source of unequal punishment for basically identical crimes.

In March, the Senate unanimously approved the Fair Sentencing Act, legislation that reduces the disparity in sentences for crack and powdered cocaine possession, from 100 to 1, to 18 to 1. Now it is up to the House to approve the bill and rectify a sentencing mandate that is simply unjust.

Skyrocketing crack use in the 1980s brought with it a rise in violent crime and pervasive fears about the highly addictive narcotic’s long-term impact on society. At the time, crack was believed to chemically induce violent action and was seen as a society-crushing epidemic. The consequences for possessing the narcotic were therefore made severe; Congress passed the Anti-Drug Abuse Act in 1986, setting, among other things, stiff sentences for possessing crack.

But the amount of crack cocaine needed to trigger the five- and 10-year mandatory sentences is significantly less — 100 times less — than that for powder cocaine. Specifically, a conviction for possessing 5 grams of crack (equivalent to about the weight of two pennies) guarantees a five-year prison sentence. It takes 500 grams of powdered cocaine to trigger the same mandatory sentence.

I first came across this matter while a Member of Congress in the ’90s, serving on the House Judiciary Committee. In reviewing data on federal prosecutions and sentences from the 10 years since the Anti-Drug Abuse Act was enacted, it became apparent that the disparity between powdered and crack cocaine sentences was failing on two points.

First, it did not consistently lead to the prosecution of major drug traffickers and sellers; it led to increased prosecutions of small-time dealers and peripheral supporters, such as boyfriends or girlfriends.

Second, with a better understanding of crack — its chemical properties and effects on the body — it was becoming clear that the courts were giving different punishments for the same crime. Powdered and cooked cocaine are chemically the same. Further, crack does not inherently cause violence; rather, violence is a product of the drug trade and the historically violent trends in areas where crack is predominantly used and sold. Thus, giving substantially longer prison sentences for crack over powdered cocaine is as illogical as it is unfair.

While head of the Drug Enforcement Administration, I talked with front-line agents and drug task force officers who said the sentencing disparity was undermining community confidence in the fairness of the criminal justice system. This sense of inequity can have real impacts in the day-to-day fight against illegal narcotics; a perception of inequality makes it more difficult for agents to receive cooperation from informants and others. Yet another challenge resulting from the law — disparity harms rather than helps our federal anti-crime efforts.

This is not a partisan issue, though some have suggested that rectifying the disparity falls along party lines. Kagan has supported reducing the disparity for some time, though she second-guessed earlier efforts, believing such a reduction would not garner the needed Congressional Republican support. But this doesn’t hold across the board. There are Republicans who have supported rectifying the disparity for years (author case in point), including President Ronald Reagan, who proposed a 20-to-1 differential between the two forms of cocaine.

Now that Sens. Dick Durbin (D-Ill.) and Jeff Sessions (R-Ala.) have led the Senate in passing legislation to reduce the sentencing disparity, the time has come to resolve this issue and provide citizens with fair justice. Approving the Fair Sentencing Act will support equal treatment for all under the law, a principle upon which our country is founded.