By: Princeton Wilson
The beginning of the disparity
The sentencing disparity between ‘crack’ and powder cocaine offenses has a disproportionate impact on African American communities and should be eliminated. The disparity stems from the 1970s when American drug markets had a surplus of powder cocaine.[1] The surplus led to reduced profit for drug suppliers.[2] To offset their costs, suppliers mixed cocaine with other compounds such as ammonia or baking soda.[3] The mixture would codify when heated, then form into small clumps.[4] This version of cocaine would come to be known as ‘crack’ cocaine.[5] Mixing cocaine with additives allowed distributors to increase their supply, which lowered the price of the drug.[6] As a result, one could purchase a small quantity of ‘crack’ cocaine for around five dollars, whereas a comparable amount of powder cocaine would cost approximately fifty dollars. The lower price of ‘crack’ cocaine made it more readily accessible to working class people. In contrast, the relative expense of powder cocaine limited its availability to those of the middle and upper economic classes.
Even though statistics show that working class white people used ‘crack’ cocaine just as often as working class African Americans, African Americans were portrayed in the media as the primary consumers of ‘crack’ cocaine. Additionally, people suffering from ‘crack’ cocaine addiction were depicted in the media as inherently dangerous in comparison to powder cocaine addicts. As a result of the media’s sensationalized and racially skewed portrayal of cocaine addiction, common pejoratives referring to those who used cocaine became racialized to the extent that they became readily associated with African Americans. Consequently, while ‘crack’ cocaine became primarily associated with working class African Americans, powder cocaine remained primarily associated with whites of the middle and upper classes.
The Anti-Drug Abuse Act of 1986 was the legislative response to the country’s cocaine problem. One of the purported objectives of the Anti-Drug Act was to target high-level drug traffickers in an effort to disrupt the domestic importation of cocaine. However, due to the myth that there was a legally relevant distinction between ‘crack’ and powder cocaine, the legislation imposed a one hundred-to-one disparity in the sentencing guidelines. The sentencing guidelines imposed by the Anti-Drug Abuse Act established a ten year mandatory minimum sentence for the distribution of fifty grams of ‘crack’ cocaine and for the distribution of five-thousand grams of powder cocaine. Congress then decided to double down on this arbitrarily punitive approach by passing the Omnibus Anti-Drug Abuse Act of 1998.[7] The Omnibus Act imposed a five-year minimum mandatory sentence and a twenty-year maximum penalty for the mere possession of five grams of ‘crack’ cocaine. The Omnibus Act imposed no changes on sentencing guidelines for powder cocaine. In fact, as opposed to the five-year mandatory minimum and twenty-year maximum penalty for possession of ‘crack’ cocaine, the Anti-Drug Act and the Omnibus Act capped the maximum penalty for possession of powder cocaine at “no more than one year in prison.”[8]
Rationalizing the disparity
Little rationale was offered for the different treatment of ‘crack’ and powder cocaine in sentencing.[9] One justification offered by the legislature for the sentencing discrepancy was the notion that ‘crack’ cocaine was inherently more dangerous than powder cocaine. However, studies show that the chemical components of the two forms of the drug are “nearly identical.” Another myth used as justification for the divergent sentencing is that ‘crack’ is more addictive than powder cocaine has also been disproven. In 1996, the Journal of American Medical Association conducted a study wherein they “found that the physiological and psychoactive effects of cocaine are similar regardless of whether it is in the form of powder or crack.”
The policy justifications behind the legislation are tenuous as well. As stated above, one of the purposes of the Anti-Drug Abuse Act and its punitive nature was to target high-level drug dealers who were engaged in importing drugs into the country. Yet, the report issued by the U.S. Sentencing Commission found that low-level targets bore the brunt of the bill’s draconian measures. According to the report, lower-level participants in the drug trade received longer sentences while the sentences and arrest rates of high-level traffickers remained relatively unaffected.
While the difference, compositional or otherwise, between ‘crack’ and powder cocaine remains unclear, the fact that disparities in sentencing have a disproportionate effect on African American communities is readily apparent. The legislation led to a ten-year period wherein nine times as many black defendants were sent to federal prison on cocaine charges than white defendants. In 1993, the racially biased manner in which the sentencing was imposed made it such that nearly ninety percent of those convicted of federal cocaine crimes were African American despite the fact that survey data taken at the time shows that most of those who used ‘crack’ cocaine were white. The mandatory minimum sentences also contributed to the disenfranchisement of those with felony convictions by barring access to social safety net programs such as welfare or public housing.
Eliminating the disparity
In 1995, the U.S. Sentencing Commission issued a report to Congress about the sentencing disparity. In finding that the distinction between the forms of cocaine was arbitrary, the Commission stated “[t]here may need to be congressional reconsideration of the dramatic distinction in simple possession penalties for crack versus powder cocaine and other drugs.” In 2010, the Obama Administration took a step toward remedying the disparity by passing the Fair Sentencing Act. The Fair Sentencing Act reduced the sentencing disparity between ‘crack’ and powder cocaine from one hundred-to-one to eighteen-to-one. The Fair Sentencing Act also eliminated mandatory minimum sentencing for mere possession of crack cocaine. The reduced, but no less arbitrary, eighteen-to-one ratio was then made retroactive by the U.S. Sentencing commission in 2011. Retroactive application of the eighteen-to-one ratio meant that those previously charged under the one hundred-to-one disparity would have their sentences reduced.
The legislature should be applauded for the progressive steps it has taken toward fair sentencing in recent years. The passage of the Fair Sentencing Act, and its subsequent retroactive application, has shortened the sentences of many incarcerated people across the country. Yet, the eighteen-to-one discrepancy within the Fair Sentencing Act still contains remnants of the arbitrary, seemingly racially motivated thinking behind the Anti-Drug Act’s one hundred-to-one ratio. How does the legislature account for any difference in sentencing, be it one hundred-to-one or eighteen-to-one, when the two forms of the drug at issue are virtually identical?
In response to this issue, the Eliminating the Quantifiably Unjust Application of the Law (EQUAL) Act was introduced in the House in January of this year. The EQUAL Act aims to eliminate the sentencing discrepancy and mandatory minimum sentences for crack offenses. If the EQUAL Act becomes law, it would represent the first real institutional shift toward equity in the thirty-five years since the Anti-Drug Act was enacted. While the Fair Sentencing Act’s eighteen-to-one ratio represents progress, the EQUAL Act’s one-to-one ratio is the equitable goal for which the legislature should strive.
[1] Jonathon A. White, The Pipe v. the Prescription: The Difference Between the Crack Epidemic and Opioid Crisis, 11 J. Race, Gender, & Poverty 65 (2020).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
Princeton is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law. He has a strong interest in criminal justice reform and election law. He hopes to be a public defender after passing the bar. His personal interests include sports, music and art.
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