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www.sentencingproject.org/pdfs/1003.pdf
Sentencing Policy Although the two types of cocaine cause similar physical reactions, thesentences that users and sellers of the drugs face are vastly different. For powder cocaine,a conviction of possession with intent to distribute carries a five year sentence forquantities of 500 grams or more. But for crack, a conviction of possession with intent todistribute carries a five year sentence for only 5 grams. This is a 100:1 quantity ratio.Under this format, a dealer charged with trafficking 400 grams of powder, worthapproximately $40,000, could receive a shorter sentence than a user he supplied with crackvalued at $500. Crack is also the only drug that carries a mandatory prison sentence forfirst offense possession. A person convicted in federal court of possession of 5 grams ofcrack automatically receives a 5 year prison term. A person convicted of possessing 5grams of powder cocaine will probably receive a probation sentence. The maximumsentence for simple possession of any other drug, including powder cocaine, is 1 year injail.In addition to the federal mandatory minimum sentences, 14 states differentiate betweencrack and powder cocaine. However, none have a quantity ratio as large as the 100:1disparity in federal law.Racial Disparity Approximately 2/3 of crack users are white or Hispanic, yet the vastmajority of persons convicted of possession in federal courts in 1994 were AfricanAmerican, according to the USSC. Defendants convicted of crack possession in 1994 were84.5% black, 10.3% white, and 5.2% Hispanic. Trafficking offenders were 4.1% white,88.3% black, and 7.1% Hispanic. Powder cocaine offenders were more racially mixed.Defendants convicted of simple possession of cocaine powder were 58% white, 26.7%black, and 15% Hispanic. The powder trafficking offenders were 32% white, 27.4% black,and 39.3% Hispanic. The result of the combined difference in sentencing laws and racialdisparity is that black men and women are serving longer prison sentences than whitemen and women.Legislative History In 1986 and 1988 Congress adopted mandatory sentencing laws oncrack in the wake of widespread media attention. These laws were based on the idea thatcrack is “50 times more addictive” than powder cocaine. Congress doubled that numberand came up with the 100:1 quantity ratio currently in effect.2As part of the 1994Omnibus Violent Crime Control and Law Enforcement Act, the U.S. SentencingCommission was directed to study the differing penalties for powder and crack cocaine.In 1995, the commission recommended equalizing the quantity ratio that would triggerthe mandatory sentences. They also pointed out that the Federal Sentencing Guidelinesprovide criteria other than drug type to determine sentence lengths, so that violent,dangerous dealers receive longer sentences. Congress rejected the recommendation,which marked the first time it had done so since the establishment of the SentencingCommission. The President then followed Congress and signed the rejection into law.2Gary Webb, “Flawed Sentencing the main reason for race disparity,” Mercury News, 20 Aug 1996.
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3Litigation The 100:1 quantity ratio in the federal system has been legally challenged asunconstitutional on the grounds that it denies equal protection or due process, because thepenalties constitute cruel and unusual punishment, and because the statutes areunconstitutionally vague. All of these challenges have failed in the federal appellatecourts. However, in a state case regarding a statute that enhanced crack cocaine penaltiesat a 10:3 ratio, the Minnesota Supreme Court struck down the enhancement based on themore expansive equal protection guarantees of its state constitution.3In the case United States v. Armstrong, four defendants in Los Angeles charged withtrafficking crack cocaine filed a motion for discovery or dismissal, alleging that they werevictims of “selective prosecution” by race. This motion was made after the federal publicdefender’s office found that all 24 crack cocaine cases closed in Los Angeles in 1991involved blacks. The district court and the circuit court upheld the motion, but the federalprosecutor refused to comply. The government then appealed to the Supreme Court,which decided in favor of the government on the grounds that the defendant did not meetthe required threshold showing that similarly situated suspects of other races were notprosecuted.In 1997, the Supreme Court rejected an appeal of a Washington, D.C. case in which anAfrican American man who received a 10 year prison term for distribution of crackcontended that the laws were racially biased in their impact. The U.S. Court of Appealshad previously rejected the challenge, stating that Congress has “not acted with adiscriminatory purpose in setting greater penalties for cocaine base crimes than forpowder cocaine offenses.”Conclusion The 100:1 quantity ratio in cocaine sentencing causes low-level crackoffenders to receive arbitrarily severe sentences compared to high level powder cocaineoffenders. The quantity distinction has also resulted in a massive sentencing disparity byrace, with African Americans receiving longer sentences than the mostly white andHispanic powder cocaine offenders. The United States Sentencing Commissionrecommended revision of the 100:1 quantity ratio in 1995, finding the ratio to beunjustified by the small differences in the two forms of cocaine. Congress ignored therecommendation of the Sentencing Commission though, and refused to change the law.The President went along with the Congressional “tough on crime” stance. In April 1997,the USSC again recommended that the disparity between crack and powder cocaine bereduced, to a ratio of 5:1 by weight. It remains to be seen whether Congress or theAdministration will accept this more modest recommendation. Since that time, theSupreme Court has declined to find this law unconstitutional. Ultimately, public opinionwill be critical to influencing public policy in this often emotional issue.3State v. Russell, 477 N.W. 2d 886 (Minn. 1991).
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4BibliographyEdwards v. United States, No. 95-3165 (D.C. Cir. 1996).State v. Russell. 477 N.W. 2d886 (Minn. 1991).United States Sentencing Commission. Special Report to Congress: Cocaine and FederalSentencing Policy. Washington, D.C.: GPO, February 1995.For legal positions endorsed by The Sentencing Project, see:Brief Amici Curiae in Support of the Petitioners, Sloan v. United States, No. 96-8145 (U.S.1997), Amici Curiae National Legal Aid and Defender Association, National Black PoliceAssociation, et al. (11 April 1997).Brief Amici Curiae in Support of the Petitioners, Sloan v. United States, No. 96-8145 (U.S.1997), Amici Curiae National Association of Criminal Defense Lawyers, The SentencingProject, et al. (April 1997). |
