In This Article
30-Second Summary
Headline link: Drug penalties raise question of racial bias
Background: The Supreme Court Case
Reactions: The Department of Justice issues its verdict
Historical Context: The 1986 and 1988 Anti-Drug Abuse Acts
Opinions & Analysis: Legal analysts scrutinize the sentencing disparity
Reference Materials: The differences between crack and powder cocaine
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Inmates Jailed for Crack Cocaine Possession May Get Early Release
by
findingDulcinea Staff
The federal government body ensuring fair judicial sentencing pushes to have new, more lenient sentences related to crack cocaine applied retroactively. Supporters of the move say that the past laws were racist; opponents protest that drug dealers are being let off too lightly.
30-Second Summary
The U.S. Sentencing Commission, a federal panel that assesses the fairness of judicial punishments, reduced the penalties for offenses related to crack to mirror those applied with regard to cocaine this past spring. Now the commission is pushing to have the new sentencing provisions applied retroactively, potentially freeing some 3,800 inmates over the next year.
Prior to this reform in drug sentencing, the penalties associated with possessing or selling one gram of crack were the same as those for 100 grams of powder cocaine. Since crack is cheaper and more commonly found in poorer, inner-city neighborhoods, while powder cocaine tends to be used more often by well-to-do whites, some observers inferred that this disparity betrayed a racial bias in the legislature.
This imbalance in sentencing is an issue that was brought before the U.S. Supreme Court on Oct. 2 in Kimbrough v. United States. Derrick Kimbrough, a black veteran of the 1991 Gulf War, was given a 15-year prison term for dealing both crack and powder cocaine. U.S. District Judge Raymond A. Jackson, who tried the case, said that the suggested 19- to 22-year sentence was “ridiculous.” The court has yet to make a ruling on the case.
Some observers, such as NAACP Chairman Julian Bond, declared that the retroactive application of the measure is a necessary move to reduce tension between minorities and the judiciary. "Making the amendment retroactive will … help repair the image of the sentencing guidelines in communities of color,” Bond said.
The U.S. Department of Justice is against applying the move retroactively. Alice White, the associate attorney general, said that to commute the sentences of imprisoned felons would be “to unravel the success we have achieved in removing violent crack offenders from high-crime neighborhoods.”
Prior to this reform in drug sentencing, the penalties associated with possessing or selling one gram of crack were the same as those for 100 grams of powder cocaine. Since crack is cheaper and more commonly found in poorer, inner-city neighborhoods, while powder cocaine tends to be used more often by well-to-do whites, some observers inferred that this disparity betrayed a racial bias in the legislature.
This imbalance in sentencing is an issue that was brought before the U.S. Supreme Court on Oct. 2 in Kimbrough v. United States. Derrick Kimbrough, a black veteran of the 1991 Gulf War, was given a 15-year prison term for dealing both crack and powder cocaine. U.S. District Judge Raymond A. Jackson, who tried the case, said that the suggested 19- to 22-year sentence was “ridiculous.” The court has yet to make a ruling on the case.
Some observers, such as NAACP Chairman Julian Bond, declared that the retroactive application of the measure is a necessary move to reduce tension between minorities and the judiciary. "Making the amendment retroactive will … help repair the image of the sentencing guidelines in communities of color,” Bond said.
The U.S. Department of Justice is against applying the move retroactively. Alice White, the associate attorney general, said that to commute the sentences of imprisoned felons would be “to unravel the success we have achieved in removing violent crack offenders from high-crime neighborhoods.”
Headline link: Drug penalties raise question of racial bias
The U.S. Sentencing Commission set more lenient guidelines this past spring for crack cocaine offenders. On Nov. 13, the group met to consider making these rules retroactive, potentially releasing some 3,800 inmates over the next year. No definitive decision was reached. Judges and civil rights organizations have claimed that the stiffer penalties for possession and sale of crack cocaine compared to those for the powdered form of the drug are inherently racist. About 86 percent of inmates who would be affected by the change are black. The White House is against the retroactive sentencing.
Source: Contra Costa Times
Background: The Supreme Court Case
A case was brought before the Supreme Court on Oct. 2 to determine whether or not having stiffer penalties for possessing and dealing crack cocaine than for powdered cocaine is constitutional. Derrick Kimbrough, an African-American veteran of the 1991 Gulf War, was given a 15-year prison term for selling both crack and powder cocaine in Norfolk, Va. Federal guidelines for sentencing crack-related crimes call for 19 to 22 years in prison, but U.S. District Judge Raymond A. Jackson said the higher end of the range was “ridiculous.” Those opposing more severe punishments for crack cocaine point out that according to statistics, crack is often more of an inner-city, minority drug, while powder cocaine is generally used by relatively wealthy white people. The law in question was drafted in 1986 in a response to a rise in crack-related gang violence.
Source: International Herald-Tribune
Reactions: The Department of Justice issues its verdict
The Federal Defender, an eastern Louisiana-based organization of criminal defense attorneys who do pro-bono work for those charged with federal crimes, published the Department of Justice’s letter to the U.S. Sentencing Commission. The department is staunchly opposed to the proposed retroactive application of lighter sentencing for those found guilty of charges related to crack cocaine. “Retroactive application of the proposed amendments would result in the unexpected early return of serious drug dealers (often with lengthy criminal histories) back into the community with the possibility of little or no re-entry preparation.”
Source: The Federal Defender
Historical Context: The 1986 and 1988 Anti-Drug Abuse Acts
Use of cocaine decreased dramatically after the 1914 instatement of the Harrison Act, which was based on a report given to the president stating that cocaine was “more dangerous than any other ‘habit-forming’ drug used in the United States.” During the 1970s and 1980s, there was a surge in cocaine use, however, bringing attention back to the drug. In reaction to the repeal of mandatory minimum sentencing in 1970, the Anti-Drug Abuse Act was enacted in 1986. The Act established two tiers of mandatory prison terms for first-time drug traffickers: a 5-year and a 10-year minimum sentence. Under the law, the sentencing is determined by the quantity and type of drug involved in the offense. For example, the 10-year penalty is triggered if the offense involved at least one kilogram of heroin or 5 kilograms of powder cocaine or 50 grams of cocaine base, or “crack.” The 1998 version of the act made crack cocaine the only drug with a mandatory minimum penalty for a first-time offense for possession.
Source: U.S. Sentencing Commission
Opinions & Analysis: Legal analysts scrutinize the sentencing disparity
Paul Cassell, former federal judge and chair of the federal judiciary’s Criminal Law Committee, writes that this latest change in drug sentencing was “long overdue, and, to maximize its impact as an important first step toward restoring the credibility of federal drug sentences, it should be applied retroactively.” Cassell states that he finds that the 100-to-1 crack-to-powdered cocaine sentencing ratio was a fair response to gang violence seen in the 1980s. However, he writes that, over time, “it has had a disproportionate impact on minorities. About 80 percent of convicted crack dealers are African-American.”
Source: The Washington Post
The Sentencing Project, a think tank focusing on sentencing law and reform, sent a representative to testify before the Supreme Court. The representative’s argument centered on four main points. First, most people convicted for crack-related offenses are relatively old, and are thus less prone to recidivism. The government-run Sentencing Commission has been pushing for reform on crack sentencing since 1995, and believes that those who were since convicted should be able to take advantage of what the Project sees as just legislation. Racial equity is an issue as well, given that past drug-related amendments that primarily affected whites and Hispanics were applied retroactive, according to the commission. Lastly, while there would be some initial costs vis-à-vis implementing the amendment retroactively, the money would be more than recouped by reduction in prison stays.
Source: The Sentencing Project
A San Francisco Chronicle staff editorial considers Congress’s rejection or lack of action regarding past Sentencing Commission-backed reforms. The paper writes that on Nov. 1, “Congress failed to reject a Commission recommendation to reduce the average crack sentence from 121 months to 106 months, and so the recommendation became law. Doing nothing—that's what it took for Washington to finally enact a modest sentencing reform.”
Source: San Francisco Chronicle
In his column on the National Review’s Web site, Andy McCarthy says that the problem with the disparity between sentencing for crack and for powder cocaine does not really lie along lines of racial bias. He argues that the 100-to-1 guideline is invalid because crack is not that many times stronger than the more expensive, powdered form. “Unfortunately, crack is much more widely available today than it was when the sentencing guidelines (and the cocaine statutes) began reflecting a big difference between powder and crack,” he writes. “What you'd need to ask is, ‘who is selling cocaine?’ How many dealers are white, and are they really only selling powder coke?”
Source: National Review
Reference Materials: The differences between crack and powder cocaine
Cocaine is a substance extracted from the leaves of the coca plant, which is indigenous to the mountainous regions of Peru and Bolivia. Due to its popularity as a cash crop, it is now cultivated in Colombia, Argentina, Brazil, Mexico, Ecuador and Indonesia. Cocaine intended for street use in the United States is generally turned into cocaine hydrochloride in labs in the country of origin. As it passes from dealer to dealer, various powdery substances, such as natural sugars and talc, are added to increase the shipment’s value. In this salt form, cocaine is most commonly snorted or smoked. The salt form, as it is purer, is more expensive. Cocaine is often smoked in the form of “crack,” which is extracted from cocaine using baking soda and heat. The resulting waxy substance dries into rocks, which are easily sold on the street. When smoked, it produces effects more rapidly, but creates a greater risk of overdose. WebMD quotes a user: “Snorting coke is like driving 50 miles per hour. Smoking crack is like driving 150 miles per hour without brakes!"
Source: WebMD
Trends in Cocaine Use
Cocaine use has remained stable and relatively high during this decade, according to the Drug Enforcement Agency (DEA). According to a 2005 report, 6.9 percent of adults aged 18–25 reported using cocaine in the past year. As part of another study conducted the same year, 8 percent of high school seniors reported using cocaine at some point in their lifetime. Between Jan. 12, 2005, and Sept. 30, 2005, 4,242 people were sentenced for powder cocaine-related charges and 4,077 were sentenced for crack-related charges.
Source: DEA
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