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Congress Might Finally Fix the Disparity in Crack-vs.-Powder Cocaine Sentencing

As the War on Drugs reaches the half-century mark.
by Dan King
June 22, 2021
Congress Might Finally Fix the Disparity in Crack-vs.-Powder Cocaine Sentencing

On recent criminal justice issues, bipartisanship has been tough to come by. From one side, we hear such slogans as “Defund the Police”; from the other, talk of the “Thin Blue Line.” On most issues, there seems to be little room for compromise and little interest in coming together.

Thankfully, though, one area of criminal justice reform has remained fairly bipartisan: scaling back draconian sentencing, particularly for drug offenses. Last Thursday—the fiftieth anniversary of President Richard Nixon’s announcing what would come to be known as the War on Drugs—the House Subcommittee on Crime, Terrorism, and Homeland Security held a hearing titled “Undoing the Damage of the War on Drugs: A Renewed Call for Sentencing Reform.” During the hearing, witnesses called on Congress to end overly harsh sentences created by the War on Drugs, including mandatory minimum sentences and the notorious disparity in crack-vs.-powder cocaine sentencing.

The good news is there is already a bipartisan proposal to address the latter issue: the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act, introduced in January. The House version of the bill has 32 cosponsors, evenly split between Democrats and Republicans. This morning, the Senate Judiciary Committee is scheduled to hold a hearing on the EQUAL Act.

If passed, the EQUAL Act would strike any mention of “base” cocaine from the federal code, thus treating crack and powder cocaine as the same drug and addressing the socioeconomic and racial disparities in cocaine sentencing.

The difference in sentencing between crack and powder cocaine began with the passage of the Anti-Drug Abuse Act of 1986, which created a 100-to-1 sentencing disparity between the two. Under the 1986 law, selling 5 grams of crack would trigger a five-year mandatory minimum sentence, while one would need to sell 500 grams of powder cocaine to receive that same mandatory minimum.

The sentencing difference was largely sparked by outdated myths, including the since-debunked idea that crack is remarkably more potent than powder cocaine or the racist notion of “negro crack cocaine fiends” who were incredibly violent and given “superhuman” strength by the drug. In reality, most violence related to crack during the 1980s and 1990s can be attributed to the black-market drug trade and the involvement of gangs. The only substantial difference between the two drugs is that crack leads to a quicker high because it is smoked instead of snorted or injected.

The Anti-Drug Abuse Act led to incredibly racially disparate results in enforcement. In 2009, the final year of the 100-to-1 sentencing rule, 79 percent of individuals arrested for crack cocaine were black, while only 28 percent of powder cocaine arrestees were black. Thus, convicted black offenders were much more likely to receive a mandatory minimum sentence for cocaine use or sales than convicted white offenders. What’s more, because crack is substantially cheaper than powder cocaine, poorer people are more likely to use crack than powder cocaine, and thus more likely to be subject to arrest.

In 2010, Congress overwhelmingly passed the Fair Sentencing Act, which changed the disparity from 100-to-1 to 18-to-1. Then, in 2018, it passed the bipartisan FIRST STEP Act, making the Fair Sentencing changes apply retroactively to convictions that occurred prior to 2010. That retroactivity shortened the sentences of 2,387 people by an average of 71 months per person. However, low-level offenders didn’t benefit from this change because the FIRST STEP Act only applied to the top two tiers of crack offenders, whose convictions triggered mandatory minimum sentences. Last Monday, the Supreme Court affirmed that interpretation of the act, deciding unanimously that the retroactivity provision does not apply to low-level offenders. That decision further underscores the need for Congress to step up and address the disparity.

The Drug War has led to the incarceration of millions of Americans, perpetuated racial disparities in the criminal justice system, and has done nothing to prevent drug use. While passing the EQUAL Act won’t fix all of these issues (only ending the Drug War will), it would at least address one of the worst racial discrepancies in sentencing.

Dan King

Dan King is a senior contributor at Young Voices, where he covers civil liberties and criminal justice reform. His work has appeared in Reason, the American Conservative, the Week, and the Weekly Standard.