One Step Taken Towards Ending the War on Drugs, One Hundred More to Go

Posted by Ezekiel Edwards, Drum Major Institute at 3:24 PM on December 12, 2007.

For over 20 years, federal criminal law has abided by a congressionally-created "100-to-1" ratio rule, in which possession of every gram of crack cocaine is treated as the equivalent to possession of 100 grams of powder cocaine. Under the 1986 Anti-Drug Abuse Act, any defendant accountable for five grams of crack cocaine receives the same mandatory minimum sentence of five years in prison as someone accountable for 500 grams of powder cocaine; raise the weight to 50 grams of crack, and the mandatory minimum of ten years is the same as it is for 5,000 grains of powder.

To be clear (and as the Supreme Court noted yesterday), crack and powder cocaine are "two forms of the same drug." Crack is formed by dissolving powder cocaine and baking soda in boiling water, creating a solid substance that is then divided into single-dose "rocks." The drugs have the same "physiological and psychotropic effects", it is simply that those effects are more quickly and intensely obtained when crack cocaine is smoked than when powder cocaine is snorted.

Putting aside the utter failure of the drug war as a whole, the outrageous 100-to-1 sentencing disparity cannot be justified scientifically, ends up punishes the low-level street pusher more frequently, and as harshly, as the high-level drug trafficker, wastes fiscal resources, and has had a markedly disparate impact on poor people of color, who have borne the brunt of this sentencing inequality. Moreover, until recently, federal judges had been rendered discretion-less when sentencing drug offenders, unable to deviate from the mandatory (and very harsh) United States Sentencing Guidelines, even when they thought such downward departures appropriate.

The bad news is that our disastrous drug war still rages on, the inexplicably lopsided 100-to-1 sentencing disparity between crack and powder still exists, and federal judges are still heavily handcuffed in their ability to hand out reasonable prison terms to drug offenders.

The good news is that the Supreme Court has loosened those handcuffs just a bit and taken very small but significant steps, including yesterday, towards recognizing the problem with the 100-to-1 ratio and the inflexibility of the Sentencing Guidelines. Two years ago, the Court ruled that mandatory sentencing guidelines violated the Sixth Amendment and thus held the Guidelines to be advisory, not mandatory, allowing judges to vary from the Guidelines' sentencing ranges.

Yesterday, the Court weighed in on the issue as it specifically applied to the 100-to-1 ratio, having to decide whether a judge's decision to sentence someone outside the Sentencing Guidelines, based specifically on the gross disparity between crack and cocaine offenses, is inherently unreasonable. More specifically, under the facts of the case before it, the Court had to decide whether the District Court's decision to sentence Derrick Kimbrough to 15 years in prison (followed by 5 years of post-release supervision) for possession with intent to distribute more than 50 grams of crack cocaine (and related charges), instead of sentencing him to between 19 and 22 1⁄2 years, as the Guidelines advised, was per se unreasonable, since the District Court based its decision on what it referred to as the "disproportionate and unjust effect that crack cocaine guidelines have in sentencing", noting that had Kimbrough possessed an equivalent amount of powder cocaine instead, his sentence range as suggested by the Guidelines would have been cut by more than half to roughly between eight and nine years.

The Supreme Court held that the District Court's rationale was not unreasonable, thus ruling that a judge can base his or her departure from the Guidelines on the unfairness of the 100-to-1 crack/powder ratio, and thereby allowing sanity to snatch a small yet significant victory from the jaws of defeat (i.e., our deranged drug policy).

In other words, the Supreme Court held that the cocaine Guidelines, like the Guidelines generally, are advisory only, that judges need not abide by the 100-to-1 crack/powder sentencing structure in every case, and while a district judge must consider the Guidelines range when contemplating sentencing, the judge may also, in any particular case, consider the crack-powder disparity in deeming the Guidelines' recommended sentence as "greater than necessary" to serve the objectives of sentencing, and thereby reject such a recommended sentence.

While the Court acknowledged that crack cocaine is more addictive than powder cocaine, crack offenses are more likely to involve weapons or bodily injury, and crack distribution is associated with higher levels of crime, on the other hand, it pointed to the United States Sentencing Commission's conclusion in 2002 that the sentencing disparity failed to meet Congress's initial objectives, while also noting that the 100-to-1 ratio rested on assumptions about the relative harmfulness of the two drugs and prevalence of harmful conduct associated with their use and distribution that the research and data no longer support, that crack is associated with significantly less trafficking-related violence than previously assumed, that the negative effects of prenatal crack cocaine exposure are identical to the negative effects of prenatal powder exposure, that the epidemic of crack cocaine use by youth never materialized to the extent feared, that it had turned the Congress's purported goal of punishing major drug traffickers more severely than low-level dealers on its head (since drug importers and major traffickers generally deal in powder cocaine which is later turned into crack by street-level sellers) by resulting in longer sentences for retail crack dealers than the wholesale drug distributors who supply the powder, and that the crack/powder sentencing differential fosters disrespect for the criminal justice system, largely because 85% of the people convicted of crack offenses, and hence subject to the severe consequences of the 100-to-1 ratio, are black.

As the Drug Policy Alliance commented, the 100-1 disparity "is costing taxpayers billions of dollars and creating enormous racial inequities in our criminal justice system. It is also making our streets less safe by encouraging federal law enforcement agencies to target low-level drug offenders instead of violent drug traffickers and organized crime."

There is still a long way to go. In the larger scheme of things, such decisions by the Supreme Court do not fundamentally alter our war on drugs, and thus do not put an end to the large numbers of men and women who are locked up every day, for years, for nonviolent drug offenses. Ultimately, such broader-based solutions must come at the hands of Congress, which will only happen when its constituents --- us --- demand an end to the drug war.

Tagged as: drugs, supreme court, drug policy, drugreporter

Drum Major Institute Criminal Justice Fellow, Ezekiel Edwards is also a Staff Attorney/Mayer Brown Eyewitness Fellow at the Innocence Project, a non-profit legal clinic and criminal justice resource center.