Revisiting the Case of a Sentencing Double Standard

Justices consider disparities for powder and crack cocaine

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Crack, a smokable, purified form of cocaine.

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Derrick Kimbrough is a criminal. That much he admits. Late one night in May 2004, police spotted the 35-year-old doling out drugs from a Buick parked in a seedy Norfolk, Va., neighborhood. Kimbrough tried to flee but eventually came clean, pleading guilty to possession of 200-plus grams of powder and crack cocaine.

Kimbrough wasn't a big-time dealer. Though the Alabama native had been convicted of about half a dozen misdemeanors, he had never gone to jail. He had managed to eke out a living as a construction worker and even served in the Marines during the Persian Gulf War.

But Kimbrough was doomed to a lengthy prison sentence because his 56 grams of crack was 6 grams above the amount that triggers a congressionally mandated 10-year sentence. And because of his other charges, including unlawful possession of a gun, Kimbrough faced at least 19 years in the slammer. It was a punishment that the U.S. Sentencing Commission had repeatedly said was unjust. Had Kimbrough been dealing in just powder cocaine, he would have needed nearly 100 times the amount to face the same jail time.

A federal judge agreed and devised a compromise—only the mandatory 10 years for the drugs and five for the gun. It was hardly a get-out-of-jail-free card, but an appellate court threw out the sentence with a curt response: A judge cannot lower prison time based on disagreements with the crack sentencing policy.

When the Supreme Court reconvenes this week, it will hear arguments in Kimbrough's case and, for the first time, explore one of the most contentious issues in federal sentencing: the vast disparity between sentencing for crack and powder cocaine. The case will hinge on the broader question of how much discretion a judge has to balance the need for individualized justice with the desire for uniform punishment.

The court's ruling could have broad ramifications for thousands of prisoners. More than 5,300 people were sent to jail last year for crack cocaine violations, double the number from the early 1990s. While a decision wouldn't change the mandatory minimum requirements, it could shape the renewed discussions in Congress over whether to finally change the 100-to-1 powder-to-crack sentencing ratio. "It could be a very dramatic moment in the 25 years of debate," says Douglas Berman, a law professor at Ohio State University.

Crime wave. The sentencing ratio dates back to 1986 at a time of rising crime—homicides in 1984 were 7.9 per 100,000 population and rose to 9.8 per 100,000 in 1991—and when crack was relatively new to the American streets. The limited research available suggested that crack was more addictive than its powder form, caused greater prenatal harm, and was linked to more violence.

But in 1995, the Sentencing Commission noted that while the harsh jail times were aimed at high-level drug traffickers, in fact, petty dealers like Kimbrough bore the brunt. Later research also showed that violence was involved in just 7 percent more crack cases than powder cocaine cases. Health concerns did not withstand scrutiny, either. Because it is smoked, crack is more addictive than powder, but studies show it didn't hurt fetal development any more than powder cocaine did.

Perhaps the most important revelation, though, was the disproportionate impact the sentencing disparity had on minorities and the poor. More than 80 percent of crack offenders are black, compared with about 9 percent who are white. (More than 50 percent of powder cocaine offenders are Hispanic.) Studies show that the differential is the single biggest reason for the substantially higher incarceration rate of black men compared with white men. It's a reality that has contributed to animus and distrust with law enforcement in these communities.

Yet the disparity has persisted largely because of Congress's inability to agree on how far to reduce the ratio. Some change is on the horizon. The Sentencing Commission will reduce the ratio in November barring congressional action, but the figure will vary from 75 to 1 to 25 to 1, depending on the quantity of drugs. Congress, too, is expected to revisit the question this year. House Democrats want to eliminate the disparity altogether, a plan unlikely to win a majority in the Senate, where the favored proposal is a ratio of 20 to 1. But dueling bipartisan proposals could create yet another roadblock for an overhaul of the law, even if the Supreme Court agrees with the judge's rationale for lowering Kimbrough's sentence.