CanadaNews’ Reporter Notes

There has been more attention paid to the sentencing disparity between Crack Cocaine and Powder Cocaine. The two types of cocaine are derived from the same coca paste, which is in turn derived from the leaves of the coca plant. The psychotropic and physiological effects are also the same [although the intensity and duration of the high differs according to the route of administration]. Both are illegal to possess and to distribute. Both also have the ability to ruin and destroy not only the lives of people who become users of the drug, but those who come in contact with the user[s] (most commonly, friends and family). And yes, both carry a mandatory prison sentence…

…this is where the similarities end.

Powder cocaine has been around much longer than crack cocaine. During the 1980s powder cocaine had been reserved a rich-man’s drug. It was expensive and easy to hide and use, and for the most part sold behind closed doors. The drug, in this form, is usually sold in larger quantities than crack cocaine. Crack, on the otherhand, was portrayed as a violence inducing, highly addictive drug that plagued inner cities and ghettos. It is generally cheaper than powder cocaine, and is sold more-or-less on the streets. By the late 1980s both forms of cocaine had a strangle-hold on the drug trade in America. The Reagan Administration was determined to fight back. The Administration fought back by the quick passage of two federal sentencing laws concerning crack cocaine in 1986 and 1988.

The laws created a 100:1 quantity ratio between the amount of crack and powder cocaine needed to trigger certain
mandatory minimum sentences for trafficking, as well as creating a mandatory minimum penalty for simple possession of crack cocaine. The result of these laws is that crack users and dealers receive much harsher penalties than users and dealers of powder cocaine.

The 100:1 quantity ratio in cocaine sentencing causes low-level crack offenders to receive arbitrarily severe sentences compared to high level powder cocaine offenders. The quantity distinction has also resulted in a massive sentencing disparity by race, with African Americans receiving longer sentences than the mostly white and Hispanic powder cocaine offenders. The United States Sentencing Commission recommended revision of the 100:1 quantity ratio in 1995, finding the ratio to be unjustified by the small differences in the two forms of cocaine. Congress ignored the recommendation of the Sentencing Commission though, and refused to change the law. Although the two types of cocaine cause similar physical reactions, the sentences that users and sellers of the drugs face are vastly different. For powder cocaine, a conviction of possession with intent to distribute carries a five year sentence for quantities of 500 grams or more. But for crack, a conviction of possession with intent to distribute carries a five year sentence for only 5 grams.
Under this format, a dealer charged with trafficking 400 grams of powder, worth approximately $40,000, could receive a shorter sentence than a user he supplied with crack valued at $500. Crack is also the only drug that carries a mandatory prison sentence for first offense possession.

A person convicted in federal court of possession of 5 grams of crack automatically receives a 5 year prison term. A person convicted of possessing 5 grams of powder cocaine will probably receive a probation sentence. The maximum sentence for simple possession of any other drug, including powder cocaine, is 1 year in jail.

In addition to the federal mandatory minimum sentences, 14 states differentiate between crack and powder cocaine. However, none have a quantity ratio as large as the 100:1 disparity in federal law.

Some scientists have studied the effects of cocaine on the brain in both forms. These experts have reported that cocaine in its ‘rock’ formation has a stronger effect on the brain. This results in a ‘bigger high’ and less control of the individual thinking process. The crack cocaine is created by taking powder cocaine and cooking it with baking soda and water, until it forms a hard surface. Each gram of powder produces approximately .89 grams of crack.

Generally, most people believe that if you are caught/arrested/or found using or possessing the drug, you should go to jail. The place where people differ is how long you should be incarcerated. There is no clear answer as far as what is fair length of time.Approximately 2/3 of crack users are white or Hispanic, yet the vast majority of persons convicted of possession in federal courts in 1994 were African-American, according to the United States Sentencing Commission (USSC). Defendants convicted of crack possession in 1994 were 84.5% black, 10.3% white, and 5.2% Hispanic. Trafficking offenders were 4.1% white, 88.3% black, and 7.1% Hispanic. Powder cocaine offenders were more racially mixed.

Defendants convicted of simple possession of cocaine powder were 58% white, 26.7% black, and 15% Hispanic. The powder trafficking offenders were 32% white, 27.4% black, and 39.3% Hispanic. The result of the combined difference in sentencing laws and racial disparity is that black men and women are serving longer prison sentences than white men and women.

Supporters of the 100:1 quantity ratio say that the intensity of the high created by crack makes crack more addictive than powder and makes its users more prone to violent outburts. Experts believe that crack is more likely to be abused because the high is short, which causes users to desire more of the drug, and because it is cheap and widely available. But when powder cocaine is injected it produces a fast, intense high similar to crack.

The United States Sentencing Commission was created by Congress in 1984 to develop federal sentencing guidelines that would, among other goals, reduce unwarranted sentencing disparity. In 1995 the Commission concluded that the violence associated with crack is primarily related to the drug trade and not to the effects of the drug itself.

As part of the 1994 Omnibus Violent Crime Control and Law Enforcement Act, the U.S. Sentencing Commission was directed to study the differing penalties for powder and crack cocaine. In 1995, the commission recommended equalizing the quantity ratio that would trigger the mandatory sentences. They also pointed out that the Federal Sentencing Guidelines provide criteria other than drug type to determine sentence lengths, so that violent, dangerous dealers receive longer sentences. Congress rejected the recommendation, which marked the first time it had done so since the establishment of the Sentencing Commission. Then President Bill Clinton followed Congress and signed the rejection into law.

The 100:1 quantity ratio in the federal system has been legally challenged as unconstitutional on the grounds that it denies equal protection or due process, because the penalties constitute cruel and unusual punishment, and because the statutes are unconstitutionally vague. All of these challenges have failed in the federal appellate courts. However, in a state case regarding a statute that enhanced crack cocaine penalties at a 10:3 ratio, the Minnesota Supreme Court struck down the enhancement based on the more expansive equal protection guarantees of its state constitution.

In the case United States v. Armstrong, four defendants in Los Angeles charged with trafficking crack cocaine filed a motion for discovery or dismissal, alleging that they were victims of “selective prosecution” by race. This motion was made after the federal public defender’s office found that all 24 crack cocaine cases closed in Los Angeles in 1991 involved blacks. The district court and the circuit court upheld the motion, but the federal prosecutor refused to comply. The government then appealed to the Supreme Court, which decided in favor of the government on the grounds that the defendant did not meetthe required threshold showing that similarly situated suspects of other races were not prosecuted.

In 1997, the Supreme Court rejected an appeal of a Washington, D.C. case in which an African American man who received a 10 year prison term for distribution of crack contended that the laws were racially biased in their impact. The U.S. Court of Appeals had previously rejected the challenge, stating that Congress has “not acted with a discriminatory purpose in setting greater penalties for cocaine base crimes than for powder cocaine offenses.”

President Clinton went along with the Congressional “tough on crime” stance. In April 1997, the USSC again recommended that the disparity between crack and powder cocaine be reduced, to a ratio of 5:1 by weight. It remains to be seen whether Congress or the Administration will accept this more modest recommendation. Since that time, the Supreme Court has declined to find this law unconstitutional. Ultimately, public opinion will be critical to influencing public policy in this often emotional issue.