Interested Persons Memo on Crack/Powder Cocaine Sentencing Policy

May 21, 2002

To:             Interested Persons
From:         American Civil Liberties Union
Re:             Crack/Powder Cocaine Sentencing Policy
Date:          May 21, 2002


For nearly a decade, the ACLU and other civil rights organizations have opposed the disparity in sentencing for equal amounts of crack and powder cocaine.   We are writing to ask Congress to take decisive action to address this disparity.  On May 22, 2002, the Crime and Drug Sub-Committee of the Senate Judiciary Committee will be holding a hearing on a report to be released by the United States Sentencing Commission (USSC).  The Commission recommends that Congress begin to address the disparity in sentencing by raising the trigger amount for a mandatory sentence for crack cocaine from 5 grams to at least 25 grams.  While we do not believe that this recommendation goes far enough, we urge Congress to begin addressing this disparity immediately.

In 1986, Congress enacted mandatory minimum sentencing laws for all drugs and determined that crack cocaine should be treated as a distinctly different drug than powder cocaine with uniquely harsh penalties.  Congress set the penalty for the sale of five grams of crack cocaine (about the weight of two pennies) at a mandatory five years in prison.  For powder cocaine, Congress set the triggering quantity for a five-year sentence at 500 grams (a little more than 1 pound).   Thus, it takes 100 times more powder cocaine to trigger the mandatory sentence for powder cocaine than for crack.

In 1988, Congress chose to make mere ""possession"" of five grams of crack cocaine punishable by five years in prison.[i]  It is the only drug that carries a mandatory prison term for possession.  Possession of any other drug triggers a maximum sentence of one year in prison.  

The 100:1 disparity between crack and powder cocaine is unjustifiable.   Research has shown that cocaine is cocaine regardless of the form in which it is used. The United States Sentencing Commission (USSC) has long been sympathetic to this fact, which is why in 1995 it passed a sentencing guideline amendment to make crack penalties the same as powder.  Unfortunately, Congress blocked the guideline amendment so it did not become law.  However, Congress did note that the 100:1 disparity was unjustified and it asked the Commission to come back with another recommendation to resolve the disparity.  

In 2002, the Commission re-opened the crack powder debate and once again heard testimony from experts who reiterated that there is no valid scientific or medical distinction between cocaine in its powder form or in its base form (crack).

Cocaine Sentencing Has Racially Discriminatory Consequences

Unfortunately, the difference in the cocaine weights that trigger mandatory sentences for crack and powder cocaine has racially discriminatory consequences. Nationwide statistics compiled by the Commission reveal that the race of those prosecuted for crack offenses has predominately been African American.  In 2000, 84.7% of crack cases were brought against African-Americans, 9% against Hispanics and only 5.6% against Whites. Caucasians, however, comprised a much higher proportion of crack users: 2.4 million Caucasians (64.4%), 990,000 African Americans (26.6%), and 348,000 Hispanics (9.2%).[ii]   For powder cocaine, the disparities are somewhat different.  Of all powder cases brought, 30.5% were against African-Americans, 50.8% were against Hispanics and 17.8% were against whites.[iii]

The Reasons for the Sentencing Differences are Unwarranted

Three reasons are often cited for the gross distinction in the penalties between powder and crack cocaine: addictiveness, violence, and accessibility due to low cost. All three reasons fail as a justification for the l00:1 ratio in punishment between two methods of ingesting the same drug. The Commission has been aware for many years that there are no scientific or medical reasons to justify the disparity. 

Disparate treatment in sentencing between crack and powder cocaine users is not justified on the basis of the greater alleged addictiveness of crack.  Research has proven that crack is not more addictive than powder cocaine. In her 10-year study of the developmental and behavioral outcomes of children exposed to powder and base cocaine in utero, Dr. Deborah Frank testified before the Commission that ""the biologic thumbprints of exposure to these substances"" are identical.[iv]  While there are differences in the manner in which the body absorbs base versus powder cocaine, since Cocaine hydrochloride (powder) can easily be transformed into crack by combining it with baking soda and heat, it is irrational to apply a stiffer penalty between cocaine which is directly sold as crack, and cocaine which is sold in powder form but which can be treated by the consumer and easily transformed into crack. 

Furthermore, the myth of the ""crack baby"" has been debunked.  Dr. Frank testified, ""There are no long-term studies, which identify any specific effects of 'crack' compared to cocaine on children's development.  Based on years of careful research, we conclude that the 'crack baby' is a grotesque media stereotype, not a scientific diagnosis.""[v]  

Likewise, there is no research to indicate that the use of crack cocaine creates more violent behavior than using powder cocaine.  A comparison of powder to crack cocaine offenses indicates that in 91% of all powder cases and in 88.4% of all crack cases there is no bodily injury.  Threats were present in 4.2 % of powder cases and 3.7% of crack cases.  Bodily injury occurred in 1.4% of powder cases and 4.5% of crack cases and death occurred in 3.4% of both powder and crack cases.[vi]  Furthermore, according to Dr. Glen Hanson, there is ""very little research on the role that drugs of abuse, such as stimulants like cocaine or amphetamine actually play in violence.""  Dr. Hanson concludes, that, ""research has not been able to validate a casual link between drug use and violence.""[vii]

Neither are excessive penalties for crack cocaine justified by its low price and accessibility. To apply draconian penalties for first time possession of crack on the basis of its low cost discriminates on the basis of class, especially in light of the fact that powder cocaine, in spite of its greater cost, is a drug abused more in this country.[viii] Furthermore, higher penalties for crack cocaine guarantee that small time street-level users will be penalized more severely than larger distributors who possess powder cocaine before it is transformed into crack. This type of drug abuse policy, which disproportionately impacts lower income people, is neither logical nor effective.

The New Sentencing Commission Recommendations

In May 2002, the USSC will be issuing a new report on crack and powder cocaine disparities.  Once again, they draw the conclusion that current disparities between the drugs are unwarranted and they recommend that Congress change the law.  However, the Commission's recommendations this year are much more modest than in 1995.  The Commission is recommending that Congress raise the trigger quantity for crack cocaine to at least 25 grams and that it not lower the trigger quantity for powder cocaine.   

The ACLU's position remains that powder and crack cocaine should be treated equally and that crack cocaine trigger amounts should be raised to those of powder cocaine triggers.  We oppose any attempt to lower the trigger level for powder cocaine for three reasons -  (1) powder cocaine penalties are already very punitive and there is no sound reason to make them harsher; (2) powder cocaine penalties are in line with other controlled substance penalties and raising them will create the same level of inequity that currently exists with cocaine penalties; and (3) people of color, primarily Hispanics, are disproportionately targeted for federal powder cocaine prosecutions so increasing the penalties for powder cocaine will mean a disproportionate increase in prison sentences for Hispanics.

Representative Charles Rangel (D-NY), has introduced bills that would equalize crack cocaine levels at the same level as powder cocaine (in the 107th Congress the bill is 697). On the other end of the scale, Congressman Roscoe Bartlett (R-MD) has introduced a bill to equalize crack and powder by lowering the trigger level of powder cocaine to that of crack.  None of these proposals is likely to pass Congress this session.

A bill that has the potential of movement during the 107th Congress is sponsored by Senators Jeff Sessions (R-AL) and Orrin Hatch (R-UT).  That bill, S. 1874, the Drug Sentencing Reform Act of 2001, would raise the five-year mandatory minimum trigger quantity of crack cocaine from 5 grams to 20 grams, and lower the trigger quantity for powder cocaine from 500 grams to 400 grams.  This would leave a 20:1 disparity instead of the current 100:1 disparity.  While we appreciate the willingness of Senators Sessions and Hatch to address this issue, we must oppose the bill because it does not go far enough toward addressing this problem.  

Action Needed Now

The Senate Judiciary Subcommittee on Crime and Drugs will hold a hearing on the crack and powder cocaine disparity on May 22, 2002.  We urge you to ask Senator Sessions and members of the Senate Judiciary Committee to pass real reform legislation that makes crack penalties the same as current powder cocaine penalties.  And most importantly, please urge the Senators not to make powder cocaine penalties more severe.  Doing so will only mean more people of color serving unreasonably lengthy prison sentences.


ENDNOTES

[i] Section 6371 of Public Law 100-690 amended 21 U.S.C. 844(a).

[ii] See United States Sentencing Commission, 1992 Data File, MONFY 92, Table 31, ""Race of Defendant by Drug Type,"" October 1991 through September 30, 1992).

[iii] U.S.S.C. Sourcebook 2000, Figure 27.  

[iv] See Testimony of Dr. Deborah Frank before U.S.S.C., February 25, 2002.  

[v] Id.

[vi] U.S.S.C., 2000 Drug Sample, Figure 25.

[vii] Testimony of Dr. Glen Hanson before U.S.S.C. on February 25, 2002.

[viii] With the exception of 1999, the number of powder cocaine offenders has exceeded use of crack in each year between 1992 and 2000.  In 1999, the number of crack offenders was approximately 4,500, slightly higher than the use of powder offenders, also approximately 4,500.  U.S.S.C Drug Briefing, Figure 1.  

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