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California Has Finally Recognized That Crack and Cocaine Are the Same Thing

California's "Fair Sentencing Act" undoes one of its most racist drug laws — but reform advocates say it's only the first of many steps to reduce its massive prison overcrowding problem.
Photo via AP/ Damian Dovarganes

On Sunday, California governor Jerry Brown signed the California Fair Sentencing Act - effectively putting an end to decades of unfounded disparities in sentencing for possession of crack and powder cocaine, a distinction that had a lot more to do with the race of the sentenced than with any actual differences between the two drugs.

Advocates for sentencing reform hailed the act as "historic" - but not without noticing that it was long overdue, as for years differential laws were the basis for the incarceration and harsh sentencing of minorities, to levels that were effectively discriminatory and had a profound social impact on those communities.


"Whether sold as crack or powder, used on the street or in a corporate penthouse, the penalty for cocaine use should be the same for everybody," Senator Holly Mitchell, chair of California's Legislative Black Caucus and the proponent of the new bill, said in a statement. "We must break the drug-driven cycle of arrest, lock-up, unemployability and re-arrest. The law isn't supposed to be a pipeline that disproportionately channels the young, urban and unemployed into jail and joblessness."

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California's fair sentencing will kick in next January and won't retroactively apply to the thousands already serving lengthy crack-related sentences in the state.

But those who pushed for it are saying this is just a first step, and that massive sentencing reform is needed to address the state's dramatic prison overcrowding and the deeply racist undertones of its criminal justice system.

"It's a very small measure and it should have been done a very long time ago but in terms of racial disparity it has a big impact," Sanho Tree, a fellow at the Institute for Policy Studies and director of the Drug Policy Project, told VICE News. "In terms of arrest rates, crack cocaine has always impacted the African American community and communities of color far more than white communities, even though it's essentially the same drug.

"It was made part of this hysteria in the 1980s that crack was somehow different, that it was going to transform people, but in fact that had much more to do with other societal factors, not so much chemical factors. In fact, this is just a correction of a long term historical fallacy," Tree added.


'By European standards a five-year sentence would be considered a crushing sentence - what lesson could you possibly learn that will take you longer than five years?'

Lynne Lyman, state director of the Drug Policy Alliance, one of a dozen civil rights and racial and criminal justice groups that sponsored the bill, said this was just the beginning.

"As happy as I am about this fair sentencing act, because it undoes the most blatant, most racist law that we had on the books, it is only a small step in the right direction," she told VICE News. "It does undo one small, really terrible law, but we are looking at what comes next and there are so many things. We really need comprehensive sentencing reform."

Same Drug, Different Demographics
Powder cocaine and crack are two forms of the same drug, with nearly identical effects, but for years, getting caught with five grams of crack would have landed you a five-year minimum sentence, whereas it would have taken 100 times that amount of powder cocaine to get the same punishment.

The differential sentencing is not only scientifically groundless, it is also racist, as crack, which is a cheaper and less active derivative of cocaine, has long been associated with minorities and poorer people.

In the "tough on crime" rhetoric that followed the so-called US "crack epidemic" of the 1980s, crack was "demonized" as a "black" drug - with some 80 percent of those incarcerated for crack offenses nationwide being African American.


"Basically when they arrested a lot of young African Americans for crack, they'd be put away for a very long time, whereas if you were a white consumer of powder cocaine it would take more than 100 times as much to trigger the same sentence," Tree said. "That's been the legacy of the drug war: the drugs war has been founded on racism and race has played a fundamental role in the way drugs are perceived in this country."

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California's fair sentencing law is relatively minor, he added, but it signals an important shift in the way the country views questions of crime and punishment.

"By European standards a five-year sentence would be considered a crushing sentence - what lesson could you possibly learn that will take you longer than five years? And yet we hand that out like candy in this country," Tree said. "As long as these laws are on the books prosecutors are free to use them, and they usually do."

But the country has slowly grown skeptical of its decades-long war on drugs and its racial bias, and wary of its massive over-incarceration problem.

In 2010, President Obama signed the Fair Sentencing Act - more than 24 years after the differential "100-to-1" sentences were established in 1986. The bill reduced the gap in sentencing but didn't close it, leaving it up to individual states to do the same with their own crack laws.


California is the latest of a number of states to adopt fair sentencing provisions, but 11 states still need to do that.

California's Prison Problem
California, however, has also become the poster child for the country's incarceration problem. The state has repeatedly been ordered by federal courts to reduce its prison population and granted extensions to do so when it failed to meet the numbers.

A "prison realignment" program introduced in 2011 attempted to address the issue by shifting non-violent offenders - many behind bars for drug-related crimes - from the supervision of state prisons to county jails. In theory, the program allowed for alternatives to imprisonment, but it didn't require it and the prison population reduction never materialized. If anything, the initiative diffused accountability.

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"We haven't shown anything for it other than shuffling people around," Lyman said. "Inmates just traded a state prison address for a country jail one." But public opinion, in California and nationwide, has started to move and the latest bill is a reflection of that.

"What's really important about this is the symbolic impact: this is the first law that we have undone," Lyman said. "The first of the many, many punitive, extreme, sentencing laws that we enacted in the 1980s and 90s. My hope is that this is a first brick in the wall and that we will be able to undo the others."


'Mainstream Americans are beginning to understand that it's unparalleled from a human interest perspective but also from a financial perspective to continue to lock people up at this rate.'

Next on the agenda of reform advocates is a push to diminish the penalty for minor drug possession - an automatic felony in California, with the single exception of marijuana - to a misdemeanor. So far, only 13 states, the District of Columbia, and the federal government have achieved that, but some hope California will be next. That change would have a much larger immediate impact on incarceration rates than reversing differential sentencing for crack will.

"There's been growing awareness over the last few years, about the inhumane nature of our mass incarceration level," Lyman continued. "That it's not normal, other countries don't do it, it's not OK, it costs too much money and we lock up non-violent offenders at rates that are just unheard of anywhere else in the world."

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The US currently incarcerates 2.3 million people - more than any other country and about 25 percent of the world's entire prison population. In the country, California leads the pack, also thanks to some of the most combative law enforcement lobbies, pouring millions into political races in the state.

"People are beginning to get that, that's no longer a leftist position, mainstream Americans are beginning to understand that it's unparalleled from a human interest perspective but also from a financial perspective to continue to lock people up at this rate," Lyman added. "Politicians have not had the courage to implement sentencing reform, but they realize now that they are being watched."

"It used to be, historically, that politicians could never go wrong by being tough on drugs and tough on crime," Tree agreed. "But in recent years the public has become much more aware of the costs of incarceration but also of the racial disparities… It's part of the national conversation now."

Follow Alice Speri on Twitter: @alicesperi