Term Paper on "Sentencing Disparities Between Crack Cocaine vs. Powder"

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[EXCERPT] . . . .

SENTENCING DISPARITIES BETWEEN CRACK COCAINE vs. POWDER COCAINE

After a decade of contentious debate regarding the federal sentencing disparities between crack cocaine and powder cocaine, a number of significant initiatives to reform current policy have recently emerged. These include legislation introduced in Congress and a series of hearings resulting in recommendations by the United States Sentencing Commission. This paper provides a comparative analysis of the sentencing disparities with regard to crack cocaine as compared to powder cocaine. It examines the development of federal legislation creating greater criminal penalties for crack cocaine than powder cocaine, and assesses recent developments, studies and research in an effort to resolve the sentencing disparities. Finally, it offers recommendations to resolve this sentencing issue for future legislation, law enforcement agencies and federal and local governments.

Introduction

In 1986, Congress responded to a national sense of urgency surrounding drugs, specifically crack cocaine, and enacted the Anti-Drug Abuse Act of 1986. The 1986 Act created the basic framework of statutory mandatory minimum penalties currently applicable to federal drug trafficking offenses. The 1986 Act also established the 100-to-1-drug quantity ratio between powder cocaine and crack cocaine offenses, ultimately triggering the ongoing debate over the federal sentencing policy for cocaine offenses. As a result of both the statutory and guideline 100-to-1 drug quantity differentiation between the two forms of cocaine, the sentencing guideline range for crack cocaine offenses based solely on drug quantity is three to over six times longer than powder cocaine offenses involving equivalent drug quantities, depending on the exact quantity of drug involved. In addition, the average sentence for crack cocaine offenses is 110 months, or almost 60% longer than the average sentence for powder cocaine offenses, or 74 months, in large part due to the effects of the 100-to-1 drug quantity ratio.

The disparity in the sentencing illustrates that Congress considered crack cocaine much more dangerous than powder cocaine and as a result, those who trafficked crack cocaine warranted significantly higher punishment. The establishment of the 100-to-1 drug quantity ratio was based on several factors. Research indicated that crack cocaine was an especially dangerous drug, and was more likely to result in chronic heavy, use. Crack cocaine was believed to be extremely addictive, its' distribution and use were highly associated with violence and other crime, and its' use caused devastating harms to children prenatally exposed to the drug. Furthermore, it was concluded that young people were particularly prone to crack cocaine use and the low cost per dose and ease of distribution and administration were leading to widespread use.

At the same time Congress was considering the 1986 Act, the sentencing guidelines authorized by the Sentencing Reform Act of 1984 were still being developed.

Congress had only a single method to differentiate penalties for the two forms of cocaine: mandatory minimum penalties. As a result, Congress provided substantially different trigger drug quantities for the mandatory five and ten-year penalties for trafficking powder cocaine and crack cocaine. The 100-to-1 drug quantity ratio was established based on a number of beliefs about the relative harmfulness of the two drugs and the relative prevalence of certain harmful conduct associated with their use and distribution.

Background of Cocaine

Crack cocaine became prevalent in the mid-1980s and received massive media attention due to its increasing growth and accessibility in the drug market. The explosive popularity of crack cocaine became associated with its low price, which for the first time made cocaine available to lower economic classes. The media presented it as a violence inducing, highly addictive drug, resulting with the rapid passage of federal sentencing legislation in 1986 and 1988 by Congress. This included mandatory sentencing laws based on the premise that crack cocaine was 50 times more addictive than powder cocaine. The result of the sentencing legislation was that while a conviction for the sale of 500 grams of powder cocaine triggers a 5-year mandatory sentence, only 5 grams of crack cocaine are required to trigger the same 5-year mandatory sentence. Similarly, while sale of 5,000 grams of powder leads to a 10-year sentence, only 50 grams of crack trigger the same 10-year sentence.

Cocaine is a naturally occurring substance that is derived from the leaves of plants indigenous to South America. Pharmacologically, cocaine is a potent and powerful stimulant. Powder cocaine is made from coca paste, which is derived from the leaves of the coca plant. Crack cocaine is simply made by taking powder cocaine and cooking it with baking soda and water until it forms a hard rocky substance. Crack cocaine is then broken into pieces and sold in small quantities. Over time, numerous studies have shown that the physiological and psychotropic effects of crack and powder are the same, and they are now widely acknowledged as pharmacologically identical. A 1996 study published in the Journal of the American Medical Association finds analogous effects on the body for both crack cocaine and powder cocaine.

Statement of the Problem

The disparity between crack cocaine and powder cocaine goes beyond the 100:1 quantity ratio and dangerous propensities. Crack is the only drug that carries a mandatory prison sentence for first offense possession. In 1988 Congress made the mere possession of crack cocaine to carry a federal minimum sentence. A person convicted in federal court of possession of 5 grams of crack will automatically receive a five-year prison term while a person convicted of possessing 5 grams of powder will receive a probation sentence. Furthermore, the maximum sentence for simple possession of any other drug is 1-year in prison.

Research indicates that even law enforcement agencies and others involved with enforcing crack penalties have found current federal law overly punitive and have asserted that it inappropriately targets a drug population that consists primarily of addicts who possess or sell crack to support their own habit.

In 2001 and 2002 there President Clinton launched a new effort to reconsider crack cocaine policies, but Congress did not implement resulting legislation. Some researchers have argued that the failure of Congress to amend the sentencing disparities between crack cocaine and powder cocaine have reflected a deeply embedded racist undertone to society's political, legal and law enforcement structure. Research indicates that studies of drug users report their main drug providers are sellers of the same racial or ethnic background as they are. However, in the year 2000, of all federal crack defendants, 84% were black.

Most criminal justice analysts argue that racial disparities in arrest and imprisonment relate to demographics. For example, crack is usually sold in small quantities in open-air markets, whereas powder is more expensive and is usually sold in larger quantities in private locations. Since minorities and low income persons are most likely to inhabit urban areas with prolific law enforcement efforts, they are at greater risk of arrest for crack cocaine possession than are white and higher income powder offenders.

Research indicates that upper-class neighborhoods where drug sales are more likely to occur indoors instead of the street sales of the urban neighborhoods that receive disproportionate attention from law enforcement.

Studies indicate that between the two cocaine drugs, the result can only be described as a race and class oriented drug policy. Since the two forms of cocaine are pharmacologically indistinguishable, it appears that by dictating harsher sentences for possession of crack than for possession of powder, the law is more severely punishing the poor, who purchase and use the more affordable form of cocaine. Additionally, 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, and because the penalties constitute cruel and unusual punishment. However, courts have not yet responded positively to such a claim.

Impact of Disparity in Sentencing

At the heart of the debate surrounding cocaine sentencing lies the 100-to-1 quantity ratio between powder and crack cocaine. This quantity ratio leads to a penalty ratio for offenders involved with equivalent amounts of either form of crack cocaine. Depending on the exact quantity, the mandatory minimum penalties and sentencing guidelines prescribe prison terms for crack defendants that generally range from three to almost eight times longer than for defendants with equivalent amounts of powder cocaine. Federal sentences for drug trafficking are determined through the interaction of mandatory minimum statutes and the sentencing guidelines.

The base offense level is adjusted upward by a predetermined amount for drug offenses that involve death or serious bodily injury resulting from the use of the substance, the possession of a dangerous weapon, use of an aircraft-related skill in importing the substance, or the killing of a victim. The base offense level can be adjusted for additional aggravating or mitigating factors such as if a vulnerable or official victim was involved or a victim was restrained, for a defendant's role in the offense, for abuse of a position of trust, or use of a special skill. Other aggravating factors include the obstruction of justice, multiple counts of conviction, and for a defendant's acceptance of responsibility for the crime.

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