Crack and Powder Cocaine Sentences May Equalize

Since the rise of crack cocaine in the early 1980s in the inner cities of America, it has, properly, been viewed as a major public health concern. Its negative effects were disproportionately concentrated on those who could least afford to bear them: poor, urban, (primarily) minority, youth.

Perhaps in overzealousness to address the problem, the federal government passed very strict laws against the possession, trafficking, and sale of crack cocaine. These laws imposed far harsher sentences for possession of crack cocaine than for the same amount of powdered cocaine. It should be noted that crack cocaine and powdered cocaine are nearly identical, chemically. They have nearly identical effects on the brain and body. The main difference is that crack cocaine is more concentrated, and reducing it to a gas (by smoking) before inhaling it allows it to reach the brain much faster than powder cocaine, which, according to users, results in a much more intense high.

In short, crack cocaine does the same thing to the brain as powder cocaine; it just does more of it. However, let’s look at the sentences for crack vs. powder cocaine. Trafficking in 500 grams or more of powdered cocaine carries a mandatory minimum sentence of 5 years in prison. For mere possession of powder cocaine, there is no mandatory minimum sentence, under federal law.

However, simple possession (not trafficking) of 5 grams of crack cocaine carries a 5 year mandatory minimum sentence. So, if someone goes to federal prison for possession of crack cocaine, to get the same sentence for a crime involving powder cocaine, not only would you have to be trafficking the drug in addition to simply possessing it, you’d have to be trafficking 100 times more.

Because crack cocaine is cheaper than powder cocaine, it is mostly used in impoverished inner-city neighborhoods, with high African American populations. Powder cocaine, on the other hand, is seen as more “upscale” and has a higher percentage of wealthy, white users. Obviously, neither drug is exclusively used by members of a given race, but the trends are clear. This has a very disturbing result: far more African Americans are going to prison, and for longer terms, than white people, for possession of essentially the same drug.

This has not gone unnoticed. Many individuals and organizations have called for a reduction in crack cocaine sentences to address this racial disparity. Well, this may finally happen (also reported here and here). Congress has passed, and President Obama is expected to sign, the Fair Sentencing Act.

If this law takes effect, which appears inevitable, it will mean that the minimum amount of crack cocaine required to impose a particular sentence must be similar to the amount of powder cocaine required to impose the same sentence.

This change to sentencing law was long overdue. Some (including myself) will claim that it doesn’t go far enough in fundamentally altering our legal approach to drugs, but it is unquestionably a step in the right direction.

If drugs are going to be criminalized (the efficacy of such a policy being debatable, to say the least), laws that result in racial disparities in sentencing for what is essentially the same crime must be changed. There is really no excuse for the fact that this disparity, despite being plain as day, was not addressed years ago. But, there’s no sense dwelling on the past, and we should be happy that it might be eliminated, or at least reduced.

Furthermore, this law doesn’t even go all the way in eliminating the sentencing disparity between crack and powder cocaine. Although it greatly reduces the 100:1 sentencing disparity, it still allows for an 18:1 disparity. Why not go all the way and set sentences for the two forms of cocaine at a 1:1 ratio?

I should note that I’m generally sympathetic to the idea of decriminalizing the recreational use of drugs. I think that most of the social problems associated with drugs are a product of their prohibition, not the drugs themselves. Of course, I’m not so naïve as to believe that drugs don’t cause any problems for addicts or the communities they live in. But prohibition has done nothing to address those problems, and has simply compounded them by fostering violence, and allowing criminal enterprises to get rich selling them.

But I won’t deny that, if crack is one day legalized, I might be proven wrong, and legalizing hard drugs might prove to be an epic mistake. But that’s why we have a legislature: that mistake could easily be corrected by re-criminalizing them.

However, even if it does turn out that we’re better off keeping drugs like crack and powder cocaine illegal, that won’t undo the fact that I’ve been stressing throughout this post: they’re the same drug, and sentences for different forms of the drug should stay the same.

I don’t pretend to know what motivated Congress to impose such harsh sentences for possession of crack. Perhaps it was a knee-jerk reaction to the devastation it was causing in urban communities at the time. Whatever the motivation, the result is clear: a federal law, in a nation that enshrines equality under the law as sacrosanct, has a clear, racially-discriminatory effect. Reducing this inequality is nice and all, but it’s time to eliminate it.