Crack cocaine and powder cocaine are different forms of the same drug, and have similar effects on the brain and nervous system. Federal law, however, sets a 100 to one sentencing disparity between the two forms. This means that distribution of just five grams of crack cocaine (about a thimble full) yields a five year mandatory minimum sentence, while it takes 500 grams of powder cocaine to trigger the same five year sentence. Crack cocaine is the only drug for which there is a federal mandatory minimum sentence for mere possession.

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. (21 U.S.C. 844)(1)  The Drug Policy Alliance urges Congress to completely eliminate the sentencing disparity between crack and powder cocaine without increasing the penalties for either drug.

This sentencing disparity, enacted in 1986 at the height of drug war hysteria, was based largely on the myth that crack cocaine was more dangerous than powder cocaine and that it was instantly addictive and caused violent behavior. Since then, copious amounts of scientific evidence and an analysis by the U.S. Sentencing Commission have shown that these assertions were not supported by sound data and were exaggerated or outright false.

The crack/powder disparity fuels racial disparities. In 2006, 82% of those sentenced under federal crack cocaine laws were black, and only 8.8% were white - even though more than two thirds of people who use crack cocaine are white(1).  The U.S. Sentencing Commission has found that “sentences appear to be harsher and more severe for racial minorities than others as a result of this law.  The current penalty structure results in a perception of unfairness and inconsistency.”(2)

Current policies target low-level street dealers and users.  Although mandatory minimum sentencing was intended to target high-level drug traffickers, members of organized crime rings, and the violence associated with the crack cocaine market, the USSC’s report found that 2/3 of crack cocaine defendants had low-level involvement in 2005 and only 1.8% of all crack defendants were high-level suppliers.(3) Reform is needed so that law enforcement can prioritize its efforts and resources to target kingpins, not merely low-level drug law offenders.

Two reforms in late 2007 built momentum for reform of this unfair disparity. First, the U.S. Supreme Court ruled, in United States v. Kimbrough, that judges have the authority to sentence individuals below the recommended federal sentencing guideline recommendation in crack cocaine cases. Second, the U.S. Sentencing Commission proffered an amendment, which was unopposed by Congress and went into effect on Nov. 1, 2007,  to lower guideline sentence recommendations by two levels, saving defendants approximately 16 months of prison time.  The USSC then voted to make this amendment reducing recommended sentences for crack cocaine offenses retroactive, saving individuals 27 months of prison-time on average. The practical effect of that vote is to make up to 19,500 currently incarcerated individuals eligible for early release over the next three decades, after a judicial review in each case.

Congress is now considering a number of bills that would partially or completely reform the disparity. See our crack/powder disparity fact sheet for more information.

(1) US Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy. (Washington, DC: US Sentencing Commission, May 2007).
(2) US Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy. (Washington, DC: US Sentencing Commission, April 1997). P 8
(3) US Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy. (Washington, DC: US Sentencing Commission, May 2007).