Outside the Beltway

Change in Sentencing: Crack v. Powder Cocaine

Congress has (after many years of debate) narrowed the gap between sentencing for crack cocaine and powder cocaine.

Steven L. Taylor · Thursday, July 29, 2010 · 8 comments

Via WaPo:  Congress passes bill to reduce disparity in crack, powder cocaine sentencing

Congress on Wednesday changed a 25-year-old law that has subjected tens of thousands of African Americans to long prison terms for crack cocaine convictions while giving far more lenient treatment to those, mainly whites, caught with the powder form of the drug.

The House, by voice vote, approved a bill reducing the disparities between mandatory crack and powder cocaine sentences, sending the measure to President Obama for his signature.

[…]

The measure changes a 1986 law, enacted at a time when crack cocaine use was rampant and considered a particularly violent drug. Under the law, a person convicted of crack cocaine possession got the same mandatory prison term as someone with 100 times the same amount of powder cocaine. The new legislation reduces that ratio to about 18 to 1.

The bill also eliminates the five-year mandatory minimum for first-time possession of crack, the first time since the Nixon administration that Congress has repealed a mandatory minimum sentence. It does not apply retroactively.

For those wondering, the Senate passed the bill in March.

This measure actually provides a modicum of sanity to this aspect of the drug laws (although the exact logic of the continued disparity between rock and powder is unclear).  The draconian crack law of the 1980s was based as much on fear as anything else.  There was rampant concern that crack was going to lead to an inner city armageddon fraught with new social ills we had never seen (for example, crack babies, which ended up not being the scourge that was predicted at the time).

Don’t get me wrong:  I would not recommend crack cocaine usage and there were (and are) still social costs of some significance associated with its usage.  The problem with the reaction in the 1980s was that, like much of our drug laws, we overreact and make rules based on fear and the drama of the moment rather than rational consideration of the problem.  We paint each new drug as practically the end of the world and react accordingly (the current drug of fear is meth-in the past it was heroin).  Again:  all of these are substances that cause substantial harm, but we tend to lack a sense of proportion in dealing with them.

In the case of crack the overreaction of the 1980s also lead to an odd situation in which sentencing for possession of the powder form of cocaine was far less than that of the crack version.  And since blacks were far more likely to deal/possess crack, they were more harshly sentenced than those dealing or possessing powder cocaine (the majority of whom were white).

It is worth noting that Jeff Sessions (R-AL) is a supporter of the Senate version of the bill, and he is neither a liberal nor is he “soft” on crime.  From Al.com:  Punishment disparity narrowed between crack and powder cocaine

U.S. Sen. Jeff Sessions, R-Ala., and others have worked for nine years to reduce the disparity but were thwarted by former President George W. Bush’s administration. In March, Sessions reached a deal with Sen. Richard Durbin, D-Ill., that raises the amount of crack that triggers the mandatory minimum five-year sentence from 5 grams to 28 grams and leaves alone the amount of powder that triggers the same sentence, 500 grams.

[…]

Sessions’ involvement in changing that law was notable because he is a conservative former federal prosecutor. He argued the disparity was unfair but also was careful to make sure law enforcement supported the changes.

Sessions said the changes will help law enforcement “better and more strategically target federal resources at those who distribute wholesale quantities of narcotics.”