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Crack the Disparity Today

Caroline Fredrickson,
Washington Legislative Office
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April 28, 2009

(Originally posted on Huffington Post.)

It’s time for Congress to take the unjust, unwarranted laws for crack sentencing off of the books.

Right now, federal law mandates an automatic five-year prison sentence for possession of five grams of crack cocaine and 500 grams of powder cocaine. That’s a 100:1 disparity for possession of the identical drug.

The crack disparity doesn’t make sense.

But tell that to your U.S. representative and two senators. Call, write and visit Congress. Send the message that the punishment given out for crack and cocaine should be the same. The ACLU and our coalition partners will make a concerted push to fix the law today, April 28, 2009.

How is it possible for the federal law to treat different forms of the same drug differently?

In June 1986, the death of University of Maryland basketball star Len Bias shocked the nation. Just days after becoming a player for the Boston Celtics, Bias died of a cocaine — assumed incorrectly to be crack — and alcohol overdose. The intense media attention around Bias’s death led to quick congressional action to pass the Anti-Drug Abuse Act of 1986. It established the mandatory minimum sentences for federal drug trafficking crimes and created a 100-to-1 sentencing disparity between powder and crack cocaine.

Many assumptions that were the basis of the 1986 law have been proven false. The little legislative history that exists suggests that at the time, Congress believed crack was more addictive than powder cocaine, that it caused crime, that it caused psychosis and death, and that crack’s low cost and ease of manufacture would lead to an epidemic in our inner cities. Researchers now know that the effects of crack cocaine and powder cocaine are the same, regardless of the form.

In fact, the biggest difference between crack cocaine and powder cocaine is skin color. People arrested for crack possession are more likely to be black, despite the fact that most users are white.

Federal law shouldn’t make an artificial distinction between sentencing for crack cocaine and powder cocaine. That’s why we support H.R. 265, the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2009 which was recently introduced by Sheila Jackson-Lee (D-Texas). This bill will equalize the crack and powder sentencing laws.

This legislative fix puts much needed fairness back into our criminal justice system. The goal of the severe crack penalties was to go after the high-level traffickers. Two decades later, the record shows that this goal has failed. The opposite has happened. The mandatory penalties have filled the prisons with low-level offenders. More than 60 percent of the federal crack defendants are small fish in the drug trade.

At the same time, some recent developments illustrate the broad ideological support for changing the sentencing law. In multiple reports, the U.S. Sentencing Commission, an independent agency in the federal judicial branch, has recommended that Congress take immediate action to erase the disparity. In 2007, the Supreme Court ruled in Kimbrough v. United States that federal judges can sentence crack cocaine offenders below the federal sentencing guidelines. This decision gives judges more discretion to base a sentence on the evidence.

Both former President George W. Bush and President Barack Obama have indicated that they agree with the growing momentum to eliminate the sentencing disparity. During a CNN interview in 2001, Bush remarked that the crack-powder disparity “ought to be addressed by making sure the powder-cocaine and the crack cocaine penalties are the same.” Right now on the page, the Obama administration lists the complete elimination of the disparity as one of its civil rights priorities.

With all this momentum for change, it’s critical to remember that Congress alone has the power to address the crack sentencing disparity.

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