Crack Sentencing Law and Policy

The U.S. Sentencing Commission said Tuesday that Congress should appeal a law that puts first-time offenders in prison for a minimum of five years for possessing a small amount of crack cocaine.

The Anti-Drug Abuse Act, enacted during the 1980s crack epidemic, sends distributors of five grams of crack -- the equivalent weight of five paper clips* -- to federal prison for a mandatory minimum of five years.

It takes 500 grams of powder cocaine to result in the same sentence as the five grams of crack, the commission said. It urged Congress to deal with the 100:1 disparity by raising the amount of crack required to trigger the mandatory minimum sentence so focus can be shifted to major traffickers.

The Commission concluded that there is "almost universal criticism" concerning federal cocaine sentencing policy from community interest groups, the judiciary, criminal justice practitioners and academics.

The ACLU said in a press release that the "sentencing disparity has devastated African-American and low-income communities, targeting low-level offenders while failing to address the larger problem of the drug trade."

Bean at Feministe.us with the ACLU's summary of proposals in the Commission's report and disagrees with the third:

· Increase the amount of crack cocaine required to trigger the five-year mandatory minimum sentence, as current law subjects low-level drug offenders to the same or harsher sentences as major dealers.

· Repeal the mandatory minimum penalty for simple crack cocaine possession.

· Reject proposals to lower the amount of powder cocaine required to trigger the five- and ten-year mandatory minimums, as the Commission finds “no evidence to justify such an increase.”

Ok. I’m with them on the first two. Increasing the level of crack required to trigger a harsh five year minimum sentence is an important step to reducing the impact of the misguided “War on Drugs” on low level dealers and - worse — people who possess for their own use. Repealing the mandatory minimum for possession is clearly ancillary to that. But it’s that third recommendation that really stings, and that reduces the positive impact of the other two. In the third bullet point, the commission rejects the idea of getting rid of the 100-to-1 disparity by saying that there’s no need to bring the level of powder cocaine needed to trigger a mandatory minimum sentence down to be more in line with that of crack cocaine.

Now, in a vacuum I agree with that third recommendation. I don’t think we should be punishing cocaine use more harshly. We should be punishing crack and cocaine use less harshly. But U.S. drug policy does not exist in a vacuum. By refusing to address the disparity here, the commission condones its continuation.

In fairness, not nearly all of the blame can be placed at the feet of the sentencing commission. This is the fourth time in twenty years that the commission has urged Congress to act to change drug sentencing laws. But Congress has remained inactive. Unsurprisingly. There’s some hope though: Recently, a bipartisan coalition has been pushing the Drug Sentencing Reform Act, which would reduce – but not equalize — the disparity. And there is a general push toward more humane prison policy from some conservative senators.

But by ignoring the crack-cocaine sentencing disparity — or at the very least, refusing to recognize its impact in its recommendations — the sentencing commission has enabled Congress’s inaction and allowed a racist policy to continue.

-Dippold

*Here is a Frequently Asked Questions List about crack, including the typical dosage.

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