Data Show Racial Disparity in Crack Sentencing

Congress passed the Fair Sentencing Act to make punishments for crack and cocaine more equal.

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It's not often that the federal government relaxes sentences for drug crimes, especially with strong bipartisan support. But that is exactly what happened today, when President Obama signed the Fair Sentencing Act, which aims to reduce the disparity in sentencing between crimes involving crack cocaine and powder cocaine. This move, some believe, will address the larger issue of racial disparities in sentencing for drug crimes.

The act, which passed the Senate at the end of March with unanimous consent, also passed the House last week by a simple voice vote after only 40 minutes of debate. In a speech to the National Urban League last week, President Obama said that the bill would "help right a long-standing wrong by narrowing sentencing disparities between those convicted of crack cocaine and powder cocaine." He added, "It's the right thing to do."

Under the current penalty structure, established during the so-called "crack epidemic" of the late 1980s, possession of crack can carry the same sentence as the possession of a quantity of cocaine that is 100 times larger. The Controlled Substances act established a minimum mandatory sentence of five years for a first-time trafficking offense involving over five grams of crack, as opposed to 500 grams of powder cocaine. The law imposed the same ratio for larger amounts: a minimum sentence of 10 years for amounts of crack over 50 grams, versus 5 kilograms of cocaine.

The Fair Sentencing Act amends existing laws by increasing the amounts of crack that trigger these penalties, from five grams to 28 grams for five-year minimum sentences and from 50 grams to 280 grams for ten-year minimum sentences. The act will also eliminate the five-year mandatory minimum prison term for first-time simple possession of crack.

According to U.S. Sentencing Commission figures, no class of drug is as racially skewed as crack in terms of numbers of offenses. According to the commission, 79 percent of 5,669 sentenced crack offenders in 2009 were black, versus 10 percent who were white and 10 percent who were Hispanic. The figures for the 6,020 powder cocaine cases are far less skewed: 17 percent of these offenders were white, 28 percent were black, and 53 percent were Hispanic. Combined with a 115-month average imprisonment for crack offenses versus an average of 87 months for cocaine offenses, this makes for more African-Americans spending more time in the prison system.

Speaking on the House floor last week, California Republican Rep. Dan Lungren acknowledged the potential racial effects of the old sentencing structure. "Certainly, one of the sad ironies in this entire episode is that a bill [the old sentencing structure] which was characterized by some as a response to the crack epidemic in African American communities has led to racial sentencing disparities which simply cannot be ignored in any reasoned discussion of this issue," said Lungren. [See who donates to Lungren.]

The disparity in cocaine penalties grew out of the skyrocketing use of crack in the 1980s and the trends in violence that accompanied it, especially in urban areas. Indeed, there appears to be more violence associated with crack offenses. U.S. Sentencing Commission statistics show that 29 percent of all crack cases from October 1, 2008, through September 30,2009, involved a weapon, compared to 16 percent for powder cocaine. The new act includes a provision to account for such aggravated cases, allowing penalties to be increased for the use of violence during a drug trafficking offense.

Violence is one reason to maintain high penalties for crack-related offenses, says Jim Pasco, Executive Director of the Legislative Advocacy Center for the Fraternal Order of Police, a national organization of law enforcement officers. The enhanced penalties for crack cocaine, he says, have proven useful, and a better course of action would have been to instead raise the penalties for powder cocaine crimes. "This has been shown clearly over the years that there seems to be, for whatever reason, a lot more violence attendant to trafficking in crack than trafficking in powder," says Pasco. "We did come to see [enhanced crack sentencing] as a valuable tool in protecting innocent people from violence in crack-ridden areas."