Justice

Here Are the Sentencing Disparities Between Crack and Cocaine

September 9th 2015

By:
ATTN: Staff

American drug laws make it pretty clear that our legal system thinks crack is extra whack. For instance, there are federal guidelines ensuring that people who get caught with crack are sentenced more harshly than those who are caught with powder cocaine: This is often what people are referring to when they mention drug related sentencing disparities.

To understand sentencing disparities, it helps to understand mandatory minimums sentences, which for drug related crimes go something like this: if you get caught with a certain amount of a certain drug, you have to do a predetermined amount of time. The whole thing is very black and white (in more ways than one). These policies have helped shape America’s prison makeup for years, and can help explain the 1.5 million “missing” (or incarcerated) Black men.

 
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Are crack and cocaine really even that different?

One would think, based on the sentencing laws, that crack cocaine is a very different drug than powder cocaine—and much worse. But in reality, according to experts, crack cocaine and powder cocaine are essentially identical. (ATTN: explains the real difference between crack vs. cocaine here.) Even the U.S. Sentencing Commission, a federal agency, found that crack cocaine is not appreciably different from powder cocaine, either in its chemical composition or the physical reactions of its users. Why, then, is the punishment for crack cocaine so much harsher than the punishment for powder?

Crack use was also higher in low-income communities due to certain societal structures. "And I think with the crack epidemic of the '80s there are a lot of really obvious [societal drivers]," Jenni Stein, PharmD BCPS, previously told ATTN:. "Like widespread poverty, racism creating limited options for people in certain areas, lack of access to education, lack of access to healthcare, lack of access to safe housing and good food—all of those things would drive anybody to feel bad. And when you have medicine that’s available to you on the street that you can afford that makes you feel good, it’s not shocking that you might take it."

"In 2002, over 80 percent of crack defendants were black," ATTN: previously reported. "Crack is cheaper, so it's found in low income communities more than pure powder cocaine. Powder cocaine use is more evenly spread among ethnic backgrounds, and more white Americans have tried powder cocaine than Black Americans."

Where sentencing disparities began.

The Anti-Drug Abuse Act of 1986 set-up a basic framework for drug related mandatory minimum sentences. This round of drug laws ensured that it would take one hundred times as much powder cocaine to trigger the same mandatory penalties as a given amount of crack. A first time offender caught with 50 grams of crack—equivalent to the weight of twenty pennies—was sentenced to at least ten years in prison. To get that same mandatory punishment for selling powder cocaine, you’d have to be caught with five kilos of the drug—the weight of 2,000 pennies. Fifty grams of powder cocaine, on the other hand, didn’t trigger any mandatory minimum sentence at all. 

In 1988, the original Anti-Drug Abuse Act was amended to add stipulations regarding simple possession versus intent to sell. For example, holding five grams of crack triggered a mandatory minimum sentence of five years, even for first time offenders. This type of mandatory sentence was only attached to crack. No other first-time simple possession drug offense required jail time, nor a mandatory minimum sentence. Five grams only equates to about the weight of two pennies.

 
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Recent changes to the law.

In 2010 Congress passed the Fair Sentencing Act, which repealed the mandatory minimum sentence for simple possession and reduced the sentencing disparity from 100:1 to 18:1. Now, the ten year sentence is triggered by 280 grams of crack instead of 50. The amount of powder cocaine necessary to trigger the sentence is still five kilos. Although better, the disparity is still grossly disproportionate. 

Some history behind the fear of crack.

To fully understand what’s going on here, we have to go back in time. By the 1980s, America began considering recreational drug use a serious problem. Then in June 1986, less than 48 hours after he had been drafted by the Boston Celtics, up-and-coming basketball star Len Bias died of a cocaine overdose.

The media had already been reporting on the dangers of cocaine, but crack coverage peaked after Bias’ death, which galvanized public opinion. Crack was viewed as a problem of epic proportions. Stories of drug abuse turned into scary narratives of drug addicted mothers and their crack babies. Time magazine pointed to crack as the "issue of the year," and children whose mothers were addicts were featured on a 1991 cover. Newsweek reported that crack is the biggest news story since Vietnam and Watergate, according to the book "Crack in America." Bias’ death stoked the War on Drugs’ fire, which Nixon started more than twenty years prior. Congress immediately brought the first Anti-Drug Abuse Act on the floor, and it was swiftly enacted. 

In retrospect, it’s fair to say that the stiff Reagan era anti-drug policies were simply political responses meant to appease an outraged and fearful public. The media helped make crack out to be America’s dirty problem—and leaders on both sides of the aisle raced to clean up the mess. (Perhaps surprisingly, it was Democrats who wielded the broom, while Republicans happily held steady the dustpan.)

Problems with these laws.

The problem is, these drug war efforts—regardless of their intentions—were hasty and forgot to talk about how or why the drugs entered communities in the first place.

During his 1988 speech for the Democratic National Convention, Rev. Jesse Jackson did bring up these concerns. “We need a real war on drugs. You can’t just 'say no,' it’s deeper than that,” Jackson said, responding to Nancy Reagan’s "Just say no" campaign. The then presidential hopeful continued, speaking about a visit to the Los Angeles neighborhood of Watts—a community with almost zero white population, which is considered a birthplace of the crack epidemic:

“I met the children in Watts who unfortunately, [...] their grapes of hope have become raisins of despair, and they're turning on each other and they're self-destructing. But I stayed with them all night long. I wanted to hear their case.

“They said, ‘Jesse Jackson, as you challenge us to say no to drugs, you're right; and to not sell them, you're right; and to not use these guns, you're right.’ (And by the way, the promise of CETA [Comprehensive Employment and Training Act]; they displaced CETA— they did not replace CETA.) ‘We have neither jobs nor houses nor services nor training; no way out.’

“‘Some of us take drugs as anesthesia for our pain. Some take drugs as a way of pleasure, though it's short-term pleasure and long-term pain. Some sell drugs to make money. It's wrong, we know, but you need to know that we know. We can go and buy the drugs by the boxes at the port. If we can buy the drugs at the port, don't you believe the Federal government can stop it if they want to?’”

The way our government responded to drugs in the 80s and 90s was careless at best, and, at worse, something much more sinister. Either way, we’re still feeling the effects. Drug laws still criminalize the poorest sections of our communities.

How sentencing disparities impact us now.

They are also a driving force of institutionalized racism. As reported by the Huffington Post, “White Americans are more likely than black Americans to have used most kinds of illegal drugs [...]. Yet blacks are far more likely to go to prison for drug offenses.” According to a 2009 report by Human Rights Watch, whites are “relatively untouched by anti-drug efforts compared to blacks.” Black Americans are arrested for drug possession more than three times as often as whites. In 2011, Blacks made up nearly half of all state prisons’ drug offender population, despite being only 14 percent of the total U.S. population.

Of the discrepancy, Jamie Fellner, author of the Human Rights Watch report, said:

"The race issue isn't just that the judge is going, 'Oh, black man, I'm gonna sentence you higher.' The police go into low-income minority neighborhoods and that's where they make most of their drug arrests. If they arrest you, now you have a 'prior,' so if you plead or get arrested again, you're gonna have a higher sentence. There's a kind of cumulative effect."

The Honorable Judge Reggie Walton spoke about another cumulative effect of sentencing disparities during the 2006 public hearings on cocaine sentencing policy. A report to Congress prepared by the U.S. Sentencing Commission states: 

“Judge Walton pointed out the devastating impact long sentences have on the [Black] community. According to Judge Walton, most kids in many poor black communities do not have fathers because they are imprisoned for such long periods, and some of these offenders could be contributing members of society if they were not imprisoned for so long.”

The criminal justice system is broken: We boast more incarcerated people than any other nation in the world, and our prison population is so high in large part to the War on Drugs.

 
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