Congress to Hold Historic Hearing Tuesday on Draconian 100-to-1 Crack/Powder Sentencing Disparity

Bipartisan support for reforming the two-decade-old federal sentencing structure that treats crack cocaine offenses 100 times more severely than powder cocaine offenses is growing in Congress. The Senate Crime and Drugs Subcommittee held historic hearings on the issue two weeks ago. The House Crime, Terrorism and Homeland Security is holding hearings on the issue on Tuesday. Almost a dozen advocacy groups are co-sponsoring a national lobby day that day, bringing in voters from Alabama, California, Maryland, Texas, Virginia and others states to pressure key members of Congress to eliminate the disparity. Advocacy groups will hold a press conference with victims of the federal disparity Tuesday morning.

“The stars are aligning in such a way that it’s possible that Congress will eliminate or at least reduce the crack/powder disparity this year,” said Bill Piper, director of national affairs for the Drug Policy Alliance, a national advocacy group that lobbies for alternatives to the war on drugs. “Conservatives, liberals, and libertarians are coming together to save taxpayer money, improve public safety, promote racial equality, and bring some sanity to U.S. drug policy.”

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 1 sentencing disparity between the two forms. While it takes just five grams of crack cocaine (about two sugar packets worth) to receive a five-year mandatory minimum sentence, it takes 500 grams of powder cocaine to receive the same sentence. Fifty grams of crack cocaine triggers a 10-year sentence, but it takes 5,000 grams of powder cocaine – five kilos – to receive that much jail time.

When the crack/powder sentencing 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 at the federal level, 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.

Reform advocates say no other single federal policy is more responsible for gross racial disparities in the federal criminal justice system than the crack/power sentencing disparity. Even though two-thirds of crack cocaine users are white, more than 80 percent 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 two percent of federal crack defendants are high-level suppliers of cocaine. Criminal justice experts worry that the quantity of drugs it takes to trigger a federal mandatory minimum sentence are so low that the sentencing structure encourages federal law enforcement agencies to focus on low-level, nonviolent drug law offenders instead of major crime syndicates, undermining public safety.

Last year the U.S. Sentencing Commission voted to reduce recommended guideline sentences for crack cocaine offenses where the commission had the authority to do so. The U.S. Supreme Court also ruled that judges have the right to sentence people below the guidelines. Judges are still bound, however, by the statutory mandatory minimum sentences that Congress enacted, and those mandatory minimums are the source of the crack/powder disparity. Support for reforming the mandatory minimums is growing in both the House and Senate and among both Democrats and Republicans.

Three crack/powder reform bills have been introduced in the Senate. Two of the bills, introduced by Sen. Jeff Sessions (R-AL) and Sen. Orrin Hatch (R-UT), reduce the disparity but do not eliminate it. The third bill, introduced by Sen. Joe Biden (D-DE), would completely eliminate the disparity. Three bills have been introduced in the House to completely eliminate the disparity. One by Rep. Charles Rangel (D-NY), one by Rep. Bobby Scott (D-VA), and one by Rep. Sheila Jackson-Lee (D-TX) and Rep. Christopher Shays (R-CT).

“Reducing the 100-to-1 crack/powder disparity to 20-to-1 or 10-to-1 like some people have proposed would be like amending the Constitution’s three-fifths clause to make African-Americans fourth-fifths citizens or desegregating 60 percent of public establishments instead of all of them,” said Piper. “Members of Congress should seek to eliminate discrimination not just reduce it.”