Congress Might End Racist Sentencing Disparity Between Crack and Cocaine

The U.S. House of Representatives just passed a bill to end the sentencing disparity between crack and cocaine at the federal level.
September 30, 2021, 5:17pm
Cocaine, heroin, and crack with paraphernalia over a black background. (Cappi Thompson​/Getty Images)
Cocaine, heroin, and crack with paraphernalia over a black background. (Cappi Thompson/Getty Images)

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For decades, people found guilty of federal offenses involving crack—the cheaper, smokable version of cocaine—have faced lengthier, harsher prison sentences than those convicted of crimes related to the snortable, powder version of the drug. 

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Blame a moral panic in the 1980s and politicians’ subsequent unwillingness to rectify a problem that disproportionately harmed Black people. 

But on Tuesday, the U.S. House of Representatives moved to turn that around by passing a bill to end the sentencing disparity once and for all at the federal level. The change would quash one of the darkest chapters in America’s legacy of arbitrarily locking people up for additional months or years because they opted to use or sell the more-stigmatized version of the same drug, chemically. And if passed, the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act, would also be retroactive, meaning currently incarcerated people could finally seek a reduction of their sentence.

Right now, the federal sentencing disparity for crack and powder cocaine is 18:1. That means someone would have to traffic 18 grams of powder cocaine or 1 gram of crack to get the same penalty, even though the only difference between the two drugs is their uptake. When these laws were first passed, during the height of the crack epidemic, the drug was also thought to be more of a problem in cities, especially majority-Black ones, and the country was in a frenzy worrying it would spread to more suburban—and whiter—areas.

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“For years, we have known that harsh drug sentencing disparities between crack and powder cocaine have created a racially disparate impact on Black communities,” Rep. Bobby Scott, a Virginia Democrat and co-sponsor of the bill, said in a statement. “The bipartisan EQUAL Act is the next step on the long road toward eliminating this unfair sentencing disparity.”

Despite bipartisan support for the bill—including from some of the politicians who helped create the disparity, like President Joe Biden—it’s unclear whether the Senate will want to take up the effort to push the bill through. Its chances could quickly dim if even a handful of politicians get skittish about looking soft on crime when they could pursue a host of other, safer initiatives instead.

“What the Democrats have shown particularly perniciously for the better part of 25 years is when push comes to shove, they’re fearful of being bold in this space,” Douglas Berman, a law professor at Ohio State University's Moritz College of Law and a sentencing expert, said. “This always is the easy thing to triage: ‘OK, we’ll do this, but we’ve got to get infrastructure done.’”

That stalling comes with a real cost. 

“There’s four people today who will be sentenced under these bad crack rules,” Berman said. “There were four people yesterday. There will be four people tomorrow. And on, and on, and on.”

Still, no matter the pressure, the political climate surrounding this bill is feeling a lot like déjà vu all over again. The country is currently embroiled in the kind of fear-mongering that contributed to the War on Drugs in the first place. Americans are being hammered with data showing a rise in homicides during the pandemic, plus sensationalized news stories implying cops can face injury simply by handling fentanyl (which isn’t true). Police chiefs are saying their cities are overrun with violent crime, and politicians are walking the fine line between taking that seriously and repeating the over-criminalizing, under-researched mistakes of their past. 

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How did we get here? 

Today, the disparity between crack and powder cocaine sentencing isn’t nearly as bad as it once was. But it’s still not good.

The 1986 Anti-Drug Abuse Act made distributing five grams of crack punishable by at least five years in federal prison, while a person would have to dole out 500 grams of powder cocaine to get the same sentence. That became known as the 100:1 disparity—a harsher sanction inspired, in part, by Len Bias, a Black basketball star on his way to playing for the Boston Celtics when he died of a cardiac arrhythmia caused by a drug overdose during the height of the crack epidemic.

“Members felt like they needed to do something, and the speaker of the House was Tip O'Neill from Massachusetts,” said Kevin Ring, the president of FAMM, a nonprofit organization focused on prison and sentencing reform. “Everyone thought Bias OD’d on crack. It ended up being powder. One of those little weird factoids—talk about rushed judgement.” 

A contest started to see which politician could look the toughest on crack, according to Ring. The Reagan administration thought a 20:1 sentencing disparity between crack and powder cocaine might cut it, but 100:1 wound up winning out in the end. 

The difference was akin to seriously punishing an underage kid for buying a high-alcohol, low-cost fortified wine instead of a fancier top-shelf whiskey, according to Berman: Cocaine at the time was for well-to-do and typically white high-rollers on Wall Street; crack was seen as a more dangerous, more harmful drug ailing poor, often Black, people. 

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The U.S. Sentencing Commission then put out a huge report showing just how racially disparate the punishments for crack and powder cocaine had become, Berman said. Still, it took years for politicians to start to seriously backtrack their mistakes.

Fast-forward more than two decades, and the U.S. Sentencing Commission continued to publish research suggesting it was time for a change, including a finding that 79 percent of the nearly 6,000 convicted crack offenders in 2009 were Black. The “crack baby” myth had also been dismissed. And the new Obama administration wanted to do something about the federal sentencing disparity, too. That pushed Congress to lower the ratio—but not eliminate it—to 18:1 in 2010 via the Fair Sentencing Act. But that change didn’t apply retroactively until President Donald Trump signed the First Step Act into law in 2018. 

What happened next shows the life-changing possibilities of the EQUAL Act, although it’s not entirely clear just how many people could apply for sentence reductions if the bill passes the Senate and gets signed into law.

After the First Step Act made the 18:1 ratio retroactive, according to Ring, more than 3,000 people had their sentences reduced by an average of six years. Add that together: about 20,000 cumulative years in the federal prison system—gone. 

“Ninety-one percent of that would’ve been served by Black people,” Ring said. “So 20,000 years of prison time that was averted, 20,000 years of misery averted, and there’s no public safety loss. These people all served stiff sentences, long sentences. They did not escape responsibility.” 

But armed with that data, do advocates still have a good case to pressure the Senate and White House to give more people years of their lives back?

“The recent increase in crime, and increased polarization, and the tight margins in the House and the Senate are leading people to make this a wedge issue again, and that’s really dangerous and scary,” Ring said. “Something as innocuous and obvious as this bill—you just don’t want to see it get caught up in that.”