Crack Cocaine Reform – The Struggle Continues

By Nkechi Taifa, Esq.

In 1994, the U.S. Sentencing Commission issued its first call for public comment on laws creating a differential in sentencing between crack and powder cocaine offenses. The federal law, passed after the cocaine-induced death of basketball star Len Bias (22 years ago today), requires a mandatory minimum five-year sentence for a first-time offender’s simple possession of five grams of crack cocaine. It takes trafficking in 100 times as much powder cocaine – 500 grams – to trigger the same five year sentence. This has come to be known as the 100:1 quantity disparity between crack and powder cocaine.

After receiving feedback from a broad coalition of advocates and policymakers, in 1995 the Sentencing Commission submitted to Congress recommendations that would equalize the penalty triggers between crack and powder cocaine offenses, at the current powder cocaine triggers. Although the Commission exhaustively researched and analyzed the issue of cocaine and federal sentencing policy, the recommendations were summarily rejected. Of the over 500 recommendations submitted by the Sentencing Commission to Congress, this action represented the first time Congress disregarded its advice. Congress instructed the Commission to revise its recommendation so as to maintain sentences for crack cocaine trafficking that exceeded those for powder cocaine trafficking. President Bill Clinton, who could have overridden the congressional vote, unfortunately declined to do so, and the 100:1 ratio persists to this day.

Since its 1995 study, the Sentencing Commission has submitted three additional comprehensive reports to Congress (1997, 2002 and 2007) on cocaine and federal sentencing policy, each time recommending legislative reform. In its 15-year review of guidelines sentencing, the Commission reported that revising this one sentencing rule would do more to reduce the sentencing gap between blacks and whites “than any other single policy change,” and would “dramatically improve the fairness of the federal sentencing system.”

The 20th anniversary of the mandatory minimum cocaine statute’s passage brought a groundswell of public attention to this long-standing injustice, with the emergence of a renewed coalition focused on public education and legislative reform. The “Crack the Disparity” coalition not only organized letters to Congress and sponsored congressional briefings; it was also successful in encouraging The Inter-American Commission on Human Rights to convene an historic hearing on the issue. The U.S. Judicial Conference also passed a resolution opposing the disparity between crack and powder cocaine sentences and supported a reduction of the difference. The Conference noted that “this disparity could have a corrosive effect on public confidence in the courts.”

Congressional activity has proliferated since the statute’s 20th anniversary. Three bills in the Senate have risen to prominence, with the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007 (S.1711) introduced by Sen. Joseph Biden coming closest to rational reform of crack cocaine penalties. It completely eliminates the 100:1 ratio, without a shift in the current powder cocaine penalty, as well as eliminates the mandatory minimum penalty for simple possession of crack cocaine, bringing it in line with simple possession of any other drug. Sen. Jeff Sessions is acknowledged for taking the first step in the Senate towards legislative reform (S. 1383), narrowing the gap between crack and powder cocaine to a 20:1 quantity ratio. That bill, however, decreases the amount of powder cocaine that would trigger a sentence, absent any evidence that current penalties for powder cocaine are not already tough enough. Sen. Orrin Hatch is also commended for introducing legislation (S.1685), to reduce, but not eliminate, the federal crack cocaine disparity without a shift in the current penalty for powder cocaine.

On the House side, Rep. Charlie Rangel’s bill (HR 460) has been consistently introduced for several Congresses to eliminate the sentencing disparity, and is now joined by HR 4545 introduced by Rep. Sheila Jackson Lee as a companion to the Biden bill. The Fairness in Cocaine Sentencing Act of 2008 (HR 5035), introduced by Rep. Bobby Scott, goes further than reform of the crack laws to include elimination of the cocaine mandatory minimum statute.

The Supreme Court has also recently spoken on the issue. At the end of 2007 the Court ruled that federal judges can sentence crack cocaine offenders below the federal sentencing guidelines, if they disagree with the 100:1 statutory disparity between crack and powder cocaine. Those convicted of crack cocaine offenses are still, however, subject to harsh mandatory minimum sentences and the sentencing disparity.

In November 2007 new sentencing guidelines went into effect for crack cocaine offenses as the result of a Commission amendment which corrected an inconsistency made over 20 years ago when guideline ranges for crack cocaine were set above the mandatory minimum statute. Despite strenuous objection from the Attorney General, this guideline amendment was made retroactive, allowing an estimated 19,500 incarcerated people to apply for a sentenced reduction, subject to judicial review.

Despite the recent momentum for reform, it is critical to remember that the advancements represent only incremental progress in the decades-long effort to reform the federal crack cocaine law. The Supreme Court’s allowance of judicial discretion and the Sentencing Commission’s retroactive guideline changes will not impact the very long mandatory mimmum sentences that many people are serving for crack cocaine offenses. Passage of the Biden and Jackson Lee bills would serve to finally correct the gross unfairness that has been the legacy of the 100:1 quantity disparity.

Nkechi Taifa is Senior Policy Analyst for the Open Society Policy Center, a non-partisan organization that engages in policy advocacy on criminal justice reform, domestic civil liberties, civil rights, human rights, women's rights, multilateralism, and economic development issues.