GOP and Dems Agree: Crack/Powder Cocaine Disparity Unjust and Needs Reform

On almost every issue Democrats and Republicans are viciously fighting each other. A surprising exception, however, is reducing the crack/powder cocaine sentencing disparity. The U.S. Senate unanimously approved bi-partisan legislation yesterday reforming this two-decade old policy. The original bill, the Fair Sentencing Act of 2009 (S. 1789), was introduced by Sen. Durbin, D-IL, and was intended to completely eliminate the disparity. It was amended in committee, however, to just reduce the 100 to 1 disparity to 18 to 1 in order to get bipartisan and unanimous support. The amended bill passed the full Senate last night. While they bicker over healthcare, unemployment, education and other issues, Senators agree that U.S. drug laws are too harsh and need to be reformed.

Pharmacologically the same drug, crack and powder cocaine are treated very differently within the walls of the criminal justice system. Current policy generates a 100 to 1 penalty ratio for crack-related offenses. For instance, distribution of only 5 grams of crack cocaine (about a thimble full) yields a 5 year mandatory minimum sentence. It takes 500 grams of powder cocaine, however, to prompt the same sentence. Crack cocaine is also the only drug for which the first offense of simple possession can trigger a 5 year mandatory minimum sentence. Simple possession of any quantity of any other substance by a first time offender - including powder cocaine - is a misdemeanor offense punishable by a maximum of one year in prison.

When the crack/powder disparity was enacted into law in the 1980s, crack cocaine was believed to be more addictive and more dangerous than powder cocaine. Copious amounts of research, including a recent study by the U.S. Sentencing Commission, have shown that the myths first associated with crack cocaine, and the basis for the harsher sentencing scheme, were erroneous or exaggerated. For over two decades, powder cocaine and crack cocaine offenders have been sentenced differently, even though scientific evidence, including a major study published in the Journal of the American Medical Association, has proven that crack and powder cocaine have similar physiological and psychoactive effects on the human body.

Even though two-thirds of crack cocaine users are white, more than 80% of those convicted in federal court for crack cocaine offenses are African American. Moreover, two-thirds of those convicted have only a low-level involvement in the drug trade. Less than 2% of federal crack defendants are high-level suppliers of cocaine. Taxpayer money should be spent wisely, and concentrating federal law enforcement and criminal justice resources on arresting and incarcerating low-level, largely nonviolent offenders has done nothing to reduce the problems associated with substance misuse.

Equalizing sentences for crack cocaine and powder cocaine would eliminate the most glaring instance of racial disparities in the criminal justice system and focus federal law enforcement resources on higher-level traffickers. The House Judiciary Committee approved legislation last year that would completely eliminate the disparity. Advocates fought hard to pass Senate legislation eliminating the disparity, but Democrats and Republicans worked out a compromise to reduce the disparity to 18-1 instead. The revised bill passed the full Senate under an expedited process designed to move uncontroversial bills that have unanimous support (or at least no formal opposition).

This Senate bill is a move in the right direction - many, many families will benefit from the change - but it obviously doesn't go far enough. Members of Congress need to know that advocates of change consider this bill to be only a down payment on completely eliminating the disparity, and a stepping stone to reforming punitive drug policies more broadly. Despite spending hundreds of billions of dollars and arresting millions of Americans, drugs remain cheap, potent, and readily available. Meanwhile the war on drugs is creating huge racial disparities, filling prisons with nonviolent offenders, and fueling prohibition-related violence on both sides of the U.S./Mexico border. It is time for massive change. Reducing the crack/powder disparity is the first step of many.