Reefer Madness: A Crack at Correcting Sentencing Disparity

Illustration by Jason Stout

More than two decades after it was codified, federal lawmakers have finally undone the 100-to-1 sentencing disparity between crack and powder cocaine. And without delay, on Aug. 3, President Barack Obama signed the new sentencing scheme into law. It was a long time coming – and the very least lawmakers could do.

Under the new Fair Sentencing Act of 2010, authored by Sen. Richard Durbin, D-Illinois, and joined by 23 co-sponsors, it will no longer take just 50 grams of crack to net a 10-year sentence; instead, it will take 280. Still, that's a far cry from the 5 kilos of powdered cocaine it would take to net the same time behind bars.

The original 100-to-1 disparity – under which you'd have to get popped with 500 grams of powder coke to net the same five-year mandatory minimum sentence as 5 grams of crack – was enacted during a time of hysteria over the scourge of crack cocaine, without any official recognition that the two drugs are chemically identical, separated only by method of ingestion. (No other drug incurs a mandatory minimum sentence at all, in fact. According to the United States Sentencing Commission, simple possession of any other drug by a first-time offender is punishable by a maximum of one year behind bars, with the exception of Rohypnol, which can incur three years.) And for decades, the law has disproportionately impacted blacks: Accord­ing to former United States Sentencing Com­mis­sion chair and Texas federal Judge Ricardo Hinojosa, in 2008 alone 80% of offenders sentenced to do time for crack were black. Moreover, according to a 2007 report from the USSC, the majority of crack offenders are low-level street dealers or "mules," those a step below corner dealers who move small quantities of the drug from place to place. In other words, while the laws were supposed to take out kingpin traffickers, federal data shows that hasn't happened in the more than two decades since the laws were enacted.

The USSC, an arm of the federal judiciary, was the first to make a move to repair the problems created by disparate sentencing. In 2007, after years of calling attention to the problem without movement from Congress, the commission revised the sentencing guidelines to trim time from crack sentences. They couldn't touch the man-mins – only Congress can do that – but the change in sentencing did affect cases that fall above and below the mandatory sentence triggers at five and 10 years. The commission then made its changes retroactive – a move that saw then-Attorney General Michael Mukasey nearly pop a blood vessel when claiming to the U.S. Conference of Mayors in early 2008 that allowing imprisoned crack offenders to petition to have their sentences reduced would clog America's cities with gun-wielding crack addicts hell-bent on revenge. Needless to say, that didn't happen, though the change in sentencing did see the courts reduce sentences for 65% of the more than 24,000 people who applied for a reduction, notes Mary Price, vice president and general counsel for Families Against Mandatory Minimums, an advocacy group that has been working for parity in crack sentencing for 15 years.

With the lesson of the USSC's reduction clear, Congress finally began to take proactive steps last year to do away with the 100-to-1 disparity – likely in part because that was a priority for incoming President Obama. Of course, the law hasn't exactly done away with the disparity, only reduced it. Bills aimed at creating a 1-to-1 sentencing scheme failed to get traction (it seems that some in Congress are incapable of accepting that crack is no more than a chef's reduction of powdered coke). In the end, lawmakers backed the new 18-to-1 sentencing scheme, meaning the law now makes dealing 28 grams of crack the trigger point for a five-year sentence.* It's hardly a perfect solution, says Price. "That's one issue, and we had to swallow the bitter pill of politics," she said. "Realistically speaking, I don't think there's going to be a viable parity bill – not in this Congress and not likely in the next. I think people went as far as they would go. I don't agree with it, but they have eliminated the simple possession mandatory minimum, and that's never been done."

Eliminating the man-min for simple possession is big news, since it's the first time in more than three decades that Congress has acted to get rid of a one-size-fits-all sentence for any federal crime.* And it's great news for FAMM, whose mission is to do away with all such sentences that take away judicial discretion to weigh an individual's background and the circumstances of individual cases when making sentencing decisions.

But FAMM's work is not yet finished, even where crack cocaine is concerned. The next step? Get Congress to make the new crack sentencing law retroactive, as the USSC did with the guidelines. "We looked at the situation of the people currently serving and said, 'God, that's unjust.' And now we just leave them to serve these unjust sentences, as if they're not there? We're asking Congress and the Sentencing Commission to do the right thing," says Price. It seems likely that the USSC will adopt a permanent rule in May (the first time it can do so) to reset the sentencing guidelines to match Congress' latest action. In the meantime, the USSC has been authorized to make a temporary "emergency rule" to correct the guidelines, which would take effect in November. In making the new rule, FAMM and others hope that at that time they'll also make the changes retroactive.* That leaves only Congress to propose and pass a bill to make the Fair Sentencing Act retroactive. FAMM members have already begun encouraging the introduction of a retroactivity bill. "My sense is that people think it's a heavy lift," says Price, "but so was crack, so that's not a reason not to do it."

As it happens, FAMM is feeling more love these days in the halls of Congress. In the wake of Obama signing the new crack law, FAMM members were invited to a celebration at the Department of Justice. "It's a completely different world," says Price. "They had petit fours." Meanwhile, a bipartisan group of lawmakers is backing the creation of a criminal justice commission to review the system. If passed (as is expected), it will be the first time since 1965 that lawmakers have undertaken any comprehensive review. Another set of lawmakers (including Congressman Ted Poe, R-Texas) is backing a measure to create a "safety valve" to keep offenders from being trapped in the wider net of federal man-mins, says Price.

In all, FAMM hopes that Americans are staring into a new, and perhaps more progressive, future. "It's deeply rewarding to see significant reform of crack penalties. For years the sentences were widely understood to be flawed and illogical, created in the heat of the drug war without any scientific basis for their severity," said FAMM founder and President Julie Stewart in a statement. "Hopefully, this victory signals the beginning of new bipartisanship that will lead to even more commonsense sentencing reforms."

For more "Reefer Madness," see the archive at austinchronicle.com/reefer.

*A print and earlier online version of this story inadvertently referred to the United States Sentencing Commission as a "quasi-governmental board." It should have been identified as an arm of the federal judiciary. Also, it failed to note that under the new guidelines, the sale of 28 grams of crack, not possession of, would net a five-year sentence. Additionally, after the publication of the story, the USSC told us that it has been given authority to make an "emergency rule" to bring sentencing guidelines in line with Congress' latest action. That rule would take effect in November.