Crack-Powder Disparity – Testimony of Wade Henderson

Location: Senate Subcommittee on Crime and Drugs

Chairman Durbin, Ranking Member Graham, and members of the Committee: I am Wade Henderson, president & CEO of the Leadership Conference on Civil Rights (LCCR).  Thank you for the opportunity to submit testimony for the record regarding this hearing on the federal cocaine sentencing disparity.

LCCR is the nation’s oldest, largest, and most diverse coalition of civil and human rights organizations.  Founded in 1950 by A. Philip Randolph, Arnold Aronson, and Roy Wilkins, LCCR works in support of policies that further the goal of equality under law through legislative advocacy and public education.  Today the LCCR consists of more than 200 organizations representing persons of color, women, children, organized labor, persons with disabilities, the elderly, gays and lesbians, and major religious groups.  It is a privilege to represent the civil and human rights community in urging you to take action to eliminate the disparities in federal cocaine sentencing.

I applaud Senator Durbin and Senator Graham for holding this hearing on a matter of vital importance to our coalition.  Despite the strides our nation has made toward achieving racial equality, the criminal justice system is one arena in which racial inequality not only persists, but, in fact, is increasing.

In 2000, LCCR, in conjunction with the Leadership Conference on Civil Rights Education Fund, released a policy report entitled “Justice on Trial: Racial Disparities in the American Criminal Justice System.”  The report examined inequities in the enforcement of state and federal criminal laws and devoted substantial attention to the issue of drug sentencing.  We concluded that the criminal justice system is beset by massive unfairness, and that both the reality and the perception of this unfairness have disastrous consequences for minority communities and for the criminal justice system itself.

Sadly, the findings and recommendations remain similar nine years later.  Black and Hispanic Americans, along with other minority groups, are victimized by disproportionate targeting and unfair treatment by police and law enforcement agents; by prosecutors whose decisions for charging and plea bargaining are racially-skewed; by harsh mandatory sentencing laws; and by judges, elected officials, and other criminal justice policymakers who fail to redress these problems.

I am including a copy of this report as part of this testimony and hope that you will make it a part of the record for this hearing.  Below I discuss more specifically the civil rights’ community’s concerns about current drug sentencing laws and practices, as well as identifying possible solutions toward restoring balance and racial fairness to the criminal justice system.

Incarceration, the Prison Population, and Drug Crimes

The statistics related to incarceration among minorities are damning.  One of every 3 black males born today will spend time in prison at some point in his life.  One of every 6 Hispanic males and one of every 45 Hispanic females can expect to go to prison in his or her lifetime.  Blacks make up 41 percent of the nation’s 2.2 million prisoners.  Hispanics make up 20 percent of the nation’s prisoners, a rate that represents a rise of 43 percent since 1990.  African Americans are incarcerated at nearly six (5.6) times the rate of whites while Hispanics are incarcerated at nearly double (1.8) the rate of whites.

Information about racial disparities related to drug crimes is particularly disturbing.  The choice of legislatures to lengthen drug sentences, combined with drug enforcement tactics, has had a disproportionate impact on America’s minorities. As the overall prison population has increased because of the war on drugs, so, too, has the minority proportion of the overall prison (and drug offender) population. From 1970 to 1984, whites generally comprised approximately 60 percent of those admitted to state and federal facilities, while blacks comprised approximately 40 percent. By 1991, these ratios had reversed, with blacks comprising 54 percent of prison admissions versus 42 percent for whites. Between 1985 and 1995, while the number of white drug offenders in state prisons increased by 300 percent, the number of similarly situated black drug offenders increased by 700 percent.  Other minority groups have also been affected by this trend: Hispanics represent the fastest growing category of prisoners, having grown 219 percent between 1985and 1995. The percentage of Asian Americans in prison has also grown; their percentage of the federal prison population increased by a factor of four from 1980 to 1999.

Minorities are disproportionately disadvantaged by current drug policies. This is not because minorities commit more drug crimes or use drugs at a higher rate than white Americans. In fact, drug use rates per capita among minority and white Americans are similar, a fact which, given the nation’s demographics, means that many more whites use drugs than do minorities. Moreover, studies suggest that drug users tend to purchase their drugs from sellers of their own race.

Rather, the disproportionate effect of the war on drugs on minorities results from three factors: first, more minorities are arrested for drug crimes; second, the severity of drug sentences has increased overall in the past 20 years; and third, minorities who are arrested are treated more harshly than white drug crime arrestees.

The assumption that minorities are more likely to commit drug crimes has prompted a disproportionate number of investigations, and therefore, arrests of minorities. Drug arrests are easier to accomplish in impoverished inner-city neighborhoods than in stable middle-class neighborhoods, so the insistence of politicians on more arrests results in vastly more arrests of poor, inner-city blacks and Hispanics.

Blacks are not only targeted for drug arrests:  they are also 59 percent of those convicted of drug offenses and, because they are less likely to strike a favorable plea bargain with a prosecutor, 74 percent of those sentenced to prison for a drug offense. Thus, blacks are disproportionately subject to the drug sentencing regimes adopted by Congress and state legislatures. And these sentencing regimes, across all levels of government, increasingly provide for more and longer prison sentences for drug offenders, many of whom are merely drug addicts or low-level functionaries in the drug trade.   

The Crack Cocaine and Powder Cocaine Discrepancy

Much of the discrepancy at the federal level is the result of differences in the federal sentencing of drug offenses involving crack and powder cocaine. These disparities were enacted into law through the Anti-Drug Abuse Act of 1986 as part of a wave of racially-tinged media hysteria. The law required different threshold quantities for the imposition of mandatory minimum prison sentences for crack and powder cocaine dealers. Federal law imposes mandatory five-year federal prison sentences on anyone convicted of selling five grams or more of crack cocaine, and 10-year mandatory sentences for selling 50 grams or more of crack. In order to receive the same mandatory five- and 10-year sentences for selling powder cocaine, however, a defendant must be convicted of selling 500 and 5000 grams of powder cocaine, respectively.

The anecdotes and stereotypes that scared Congress into treating crack cocaine cases so harshly in 1986—and subsequently in 1988 when it imposed a five-year mandatory minimum sentence for possession—were never valid in the first place.  No scientific or pharmacological evidence exists to justify treating crack as more dangerous than powder cocaine.  Rates of crack cocaine and powder cocaine use are the same and have remained stable for more than a decade.  Furthermore, despite the image of crack as a drug associated with violent crimes, minimal violence is involved with crack cocaine cases—far less than half of the crack cocaine cases involved a weapon, while most actual violence is associated with the drug trade and not the drug itself.

The consequences of this legislation are severe:

• The law punishes small-time users and dealers similar to or more harshly than drug kingpins.  The number of street-level crack cocaine dealers charged in federal court has climbed from 48 percent to 66 percent of all crack defendants while the number of importers, leaders, and supervisors has decreased.

• The law unfairly targets racial minorities.  Because federal law enforcement targets inner city communities rather than suburban or rural neighborhoods, African Americans and Latinos have been disproportionately impacted.  African Americans comprise 13 percent of the United States’ population but represent 37 percent of those individuals arrested for a drug offense.

• The law exacerbates racial disparities in the federal prison system. African-American drug defendants are 20 percent more likely to be sentenced to prison than white drug defendants.

• In 1993, despite the fact that whites comprised the majority of crack users in the United States in that period, blacks and Hispanics comprised, 95.4 percent of those convicted for federal crack distribution offenses. 

• The law has placed enormous burdens on prisons and on taxpayers.  The overall number of people in prisons and jails in 1972 was less than 200,000, but that number has increased to more than two million, mostly due to the incarceration of non-violent drug offenders.  If Congress were to eliminate the sentencing disparity between crack and powder cocaine, it would save a minimum of more than $26 million in the first year and nearly $530 million over the next fifteen years.

• The law misuses federal resources. States are capable of addressing small-time users and dealers but do not have the resources to fight large-scale and international drug trafficking. The federal government is unique in its ability to address international traffickers and should use its limited resources to do so.

• Overall, the massive weight of federal enforcement against cocaine distribution falls almost exclusively on minorities: in fiscal year 2008, despite the fact that only about 32 percent of crack cocaine users are African American, blacks comprised 79.8 percent of those convicted for crack cocaine-related offenses, while whites comprised only 10.4 percent.  These numbers have remained relatively stable over the past two decades.

These disturbing statistics appear to result from racially disparate enforcement strategies and charging decisions in crack cocaine cases.  Minorities are disproportionately arrested for crack cocaine offenses, disproportionately charged in federal court, and then sentenced under statutes and guidelines which are unfair.

Solutions and Next Steps

There is strong bipartisan support to change this discriminatory scheme.  The United States Sentencing Commission—created by Congress to set guidelines for sentencing—has recommended that Congress alter drug statutes and sentencing guidelines to eliminate the differences in crack and powder cocaine thresholds on four separate occasions.  The Commission has lowered the offense level of crack cocaine offenses and applied it retroactively, which has allowed 20,000 prisoners to apply for reduced sentences.  In addition, the U.S. Supreme Court also recognized the harsh racial disparities in mandatory minimums in its 2007 decision, Kimborough v. United States, recognizing that federal judges may exercise discretion in imposing sentences for crack cocaine offenders, and may impose sentences outside the range dictated by the federal Sentencing Guidelines. 

Despite this movement, only Congress can eliminate the disparity completely.  Senators from both sides of the aisle have recognized the unfairness in this scheme and have introduced legislation aimed at reducing this disparity.  When he was in the Senate, Vice President Biden sponsored legislation, which then-Senator Obama co-sponsored, to equalize the crack/powder cocaine sentencing ratio.  The administration has now identified the complete elimination of the disparity as a legislative priority.  Equalization of the sentencing ratio for crack and powder cocaine offenses from 100 to 1 to a ratio of 1 to 1 at the current powder cocaine level is the only fair solution.  Such a change in federal law would be a significant step toward restoring balance and racial fairness to the criminal justice system.  The time has come to rationalize drug sentencing laws and practices.  The civil rights impact of these criminal justice reforms can no longer be ignored.

Thank you for your leadership on this critical issue.