House Could Consider Legislation This Week to Reduce Crack and Cocaine Sentencing Disparity

UPDATE 2: President Obama signed the Fair Sentencing Act on August 3, 2010.

UPDATE: The House of Representatives passed the Fair Sentencing Act by voice vote on July 28, 2010. Read The Leadership Conference statement on the vote.

Advocates are calling on the House of Representatives to pass the Fair Sentencing Act of 2010 this week, which would reform a law that created a sentencing disparity between powder and crack cocaine. Under current law, a person with five grams of crack cocaine – the weight of two sugar packets – receives the same five-year mandatory minimum sentence as someone with 500 grams of cocaine, which is about a pound.

Members of the House now have the opportunity to narrow a disparity created during a “wave of racially-tinged media hysteria” in the 1980s with little understanding of the drug trade itself or the chemical properties of crack cocaine. Since the passage of these drug laws, scientists have concluded that both versions of the drug are essentially the same and researchers have found the violence associated with the drug have to do with trade itself and not necessarily with use of the drug.  

The sentencing disparity has led many people to view the criminal justice system as unfair, and many advocates say the law has resulted in misdirection of federal enforcement resources to focusing on low-level dealers rather than the pursuit and prosecution of high–level traffickers. According to the Sentencing Project, 55 percent of federal crack cocaine defendants are street-level dealers whereas only 1.8 percent are high-level suppliers.  Racial disparities have also underscored the unfairness of the law given how African Americans are prosecuted out of proportion to their usage rates. More than 80 percent of those sentenced for dealing crack are Black, even though two-thirds of those who use the drug are either White or Hispanic.

Under the bill, brokered by Senators Dick Durbin, D-Ill., and Jeff Sessions, R-Ala., the 100-to-1 sentencing disparity between powder cocaine and crack cocaine would be reduced to 18-to-1.  It would also eliminate the mandatory minimum for simple possession of crack cocaine. The Congressional Budget Office estimates the new law could save $42 million in taxpayer funds over the next five years.

The Leadership Conference and others in the civil rights community support eliminating the disparity altogether.  However, The Leadership Conference still believes the Senate bill that is a step in the right direction. As Sen. Durbin said in a speech on the Senate floor earlier this year, “If this bill is enacted into law, it will immediately ensure that every year, thousands of people are treated more fairly in the criminal justice system.”

Many within the law enforcement community have also endorsed the bill, including the National District Attorneys Association, the National Association of Police Organizations, the International Union of Police Associations, and the Federal Law Enforcement Officers Association. Even noted conservatives have called upon the House of Representatives to put tough-on-crime politics aside and pass the Senate bill.

“While head of the Drug Enforcement Administration, I talked with front-line agents and drug task force officers who said the sentencing disparity was undermining community confidence in the fairness of the criminal justice system,” said former DEA Administrator Asa Hutchinson, in a recent op-ed. “Approving the Fair Sentencing Act will support equal treatment for all under the law, a principle upon which our country is founded.”