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CP M1.2. 200-300 WORDS Read Cracked Justice– an overview of the crack-powder cocaine sentencing disparity by Nicole Porter and Valerie Wright What are yo

CP M1.2. 200-300 WORDS Read Cracked Justice– an overview of the crack-powder cocaine sentencing disparity by Nicole Porter and Valerie Wright

What are yo

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CP M1.2. 200-300 WORDS Read Cracked Justice– an overview of the crack-powder cocaine sentencing disparity by Nicole Porter and Valerie Wright

What are your thoughts on the information presented? Do you feel that sentencing is something that needs to be continually modified in the criminal justice system (CJS)?

Are there other types of sentencing disparities that currently exist in the CJS? Think about crime type or gender differences. Use your resources to come up with at least one other example.

Discussion Board Guidelines: Submit an answer to the discussion board. Each discussion board post will be between 200 – 300 words long. Refer & cite current resources in your answer. Cracked Justice

Nicole D. Porter

Valerie Wright, Ph.D.

March 2011

This report was written by Nicole D. Porter, State Advocacy
Coordinator and Valerie Wright, Ph.D., Research Analyst of The
Sentencing Project.

The Sentencing Project is a national non-profit organization engaged
in research and advocacy on criminal justice policy issues.

Support for The Sentencing Project has been provided by generous
donors, including:

Anonymous Donor at Rockefeller Philanthropy Advisors
Bernard F. and Alva B. Gimbel Foundation
Ford Foundation
General Board of Global Ministries, United Methodist Church
Herb Block Foundation
JK Irwin Foundation
Morton K. and Jane Blaustein Foundation
Open Society Institute
Public Welfare Foundation
Elizabeth B. and Arthur E. Roswell Foundation
Sandler Family Foundation
Tikvah Fund of the Tides Foundation
Wallace Global Fund
Working Assets/CREDO

Copyright © 2011 by The Sentencing Project. Reproduction of this
document in full or part in print or electronic format only by permission of
The Sentencing Project.

For further information:

The Sentencing Project

1705 DeSales St., NW

8th Floor

Washington, D.C. 20036

(202) 628-0871

www.sentencingproject.org

1 CRACKED JUSTICE

n August 2010 President Barack Obama signed the Fair Sentencing Act (FSA),

historic legislation that reduced the quantity-based sentencing differential

between federal crack and powder cocaine convictions that resulted in

significant racial disparities and excessive penalties. The bipartisan measure

addressed the 100-to-1 disparity that punished defendants with five grams of crack

cocaine (also known as cocaine base) with the same five-year mandatory minimum

penalty imposed on powder cocaine defendants with 100 times that amount.

Lawmakers rushed to establish the disparity and stiff sentences for crack cocaine in

1986 when the growing hysteria around the drug’s emergence in urban communities

climaxed because of the death of a college basketball star whose overdose, officials

believed, was caused by crack cocaine.

The policy advances at the federal level, which reduced the disparity to 18-to-1,

provide an opening for reevaluating similar state policies enacted during the height of

the crack cocaine “epidemic,” and followed the lead of Congress. While each state

maintains its own laws governing offenses involving crack cocaine, and none

maintain the extreme 100-to-1 differential between crack and powder cocaine, the

harsh penalties for low-level crack cocaine offenses are considerable and produce

significant consequences. Today 13 states maintain sentencing disparities between

crack and powder cocaine offenses. These include:

 In Missouri, where a defendant convicted of selling six grams of crack
cocaine faces the same prison term –a ten-year mandatory minimum – as

someone who sells 450 grams of powder cocaine, or 75 times that amount..

 In Oklahoma, which maintains a 6-to-1 quantity-based sentencing disparity, a
ten-year mandatory minimum sentence is triggered for five grams of crack

cocaine and 28 grams of powder cocaine.

I

2 CRACKED JUSTICE

 In Arizona, which has a 12-to-1 disparity, nine grams of powder cocaine or
less than a gram of crack cocaine trigger five-year prison terms for trafficking

offenses.

Harsh drug penalties like these are a contributing factor to the exceptionally high

rates of incarceration and overcrowding in state prison facilities. During the 1980s,

policy responses to drug abuse deprioritized treatment in favor of enforcement and

sentencing enhancements. A quadrupling of investments in drug enforcement

ramped up drug arrests.1 Moreover, since the early days of the war on drugs, the

number of Americans incarcerated for drug offenses in state prisons has increased

from 19,000 in 1980 to 265,000 by 2008.

Fiscal pressure to tighten state corrections budgets, along with mounting evidence

documenting the unfair and unwarranted structure of these sentencing laws, suggests

that lawmakers should reexamine the sentencing differential between crack and

powder cocaine. According to the National Governors Association, 46 states expect

budget deficits this year. High rates of incarceration are expensive to maintain and

sentencing changes that limit terms for low-level drug offenses, including crack

cocaine, can effectively conserve resources without adverse effects on public safety.

States like Kansas, Michigan, New York, and New Jersey have enacted policy

changes in recent years that significantly reduced prison populations, while

maintaining public safety and curbing the cost of incarceration.

3 CRACKED JUSTICE

State Crack-Powder Ratio

Source: United States Sentencing Commission2 and The Sentencing Project.

State
Disparity
Adopted

Ratio Penalty

Alabama 1990 10-to-1
Alabama uses a 10-to-1 drug quantity ratio for determining eligibility for its drug abuse diversion program.
For powder cocaine the quantity cannot exceed five grams; for crack cocaine the quantity cannot exceed
one-half gram.

Arizona 1993 12-to-1
Nine grams of powder cocaine or 750 milligrams of cocaine base trigger five-year prison terms for trafficking
offenses.

Iowa 1989 10-to-1
Trafficking more than 500 grams of powder cocaine or more than 50 grams of cocaine base triggers a
maximum penalty of 50 years in prison. Iowa requires a cocaine offender to serve a minimum period of
confinement of one-third the maximum sentence prescribed by law.

California 1986
2:1 or

4:1

Possession or sale of a mixture containing 14.25 grams or more of cocaine base or 57 grams or more of a
substance containing at least five grams of cocaine are subject to a term of three to five years in prison.
Defendants convicted of possessing for sale 28.5 grams or more of powder cocaine or 57 grams or more of
a substance containing five grams of cocaine base are subject to a prison sentence ranging from three to
five years depending on aggravating or mitigating circumstances. Whereas, a person convicted of
possessing 28.5 grams or more of powder cocaine is subject to a sentence range of two to four years
pending the circumstances.

Maine 1987 3.5-to-1
Aggravated trafficking offenses involving 112 grams or more of powder or 32 grams or more of cocaine base
subject defendants to a four-year mandatory minimum term.

Maryland 1990 9-to-1
Mandatory minimum penalty of five years for persons convicted of trafficking 448 grams or more of powder
cocaine or 50 grams or more of crack cocaine.

Missouri 1989 75-to-1
Trafficking more than 150 grams but less than 450 grams of powder cocaine or two grams but less than six
grams of cocaine base is a Class A felony and are subject to a mandatory minimum of ten years.

New
Hampshire

1994 28-to-1
Trafficking 142.5 grams of powder cocaine or five grams of crack cocaine provides a maximum penalty of 30
years in prison.

North
Dakota

1990 10-to-1

First time defendants can receive a sentencing enhancement of life imprisonment with or without parole for
trafficking 50 grams or more of powder cocaine or five grams or more of crack cocaine. Mandatory
minimums apply if a defendant has prior offenses; a defendant convicted of a subsequent offense is subject
to a mandatory minimum of five-years imprisonment while a person convicted of a third offense is subject to
a mandatory minimum sentence of 20 years.

Ohio 1995
10-to-1

and 2-to-
1

Felony categories range in degree from first to fourth and sentencing disparities vary across felony categories
based on quantity amounts. The state uses a 10-to-1 ratio of 1,000 grams of powder cocaine and 100
grams of cocaine base for major drug offenses and imposes a ten-year mandatory minimum.

Oklahoma 1990 6-to-1
Possessing five grams or more of cocaine base or 28 grams or more of powder cocaine triggers a ten-year
mandatory minimum prison sentence. A 20-year mandatory minimum sentence is triggered for possession
or trafficking 50 grams or more of crack cocaine or 300 grams of powder.

Vermont 1989 2.5-to-1
Trafficking 150 grams or more of powder cocaine or 60 grams or more of cocaine base subject defendants
to a 30-year maximum sentence.

Virginia 1987 2-to-1
Trafficking 5 kilograms or more of powder cocaine or 2.5 kilograms or more of cocaine base triggers a 20-
year mandatory minimum sentence.

4 CRACKED JUSTICE

T H E C A S E F O R C R A C K C O C A I N E S E N T E N C I N G

R E F O R M

A range of research from scientists and criminal justice experts now supports crack

cocaine sentencing reform. Charles Schuster, former Director of the National

Institute on Drug Abuse and Professor of Psychiatry and Behavioral Sciences, found

that once cocaine is absorbed into the bloodstream and reaches the brain its effects

on brain chemistry are identical regardless of whether it is in the form of crack or

powder.3 In addition, the United States Sentencing Commission (USSC) has

published four reports since 1995 that detail the policy implications of crack and

powder cocaine sentencing disparities, and its work helped build consensus to

reform the sentencing disparities at the federal level. The Commission found that

the violence associated with crack cocaine is primarily related to the drug trade and

not to the effects of the drug itself, and that both powder and crack cocaine cause

distribution-related violence, as do all illicit drug markets.

The USSC has also addressed the significant racial disparity associated with those

sentenced for crack cocaine offenses. According to the Commission in 2004,

“[r]evising the crack cocaine thresholds would better reduce the [sentencing] gap

than any other single policy change, and it would dramatically improve the fairness

of the federal sentencing system.”

The debate and research about crack cocaine addiction and use has motivated some

states to reform their sentencing law even before federal reform took place. Since

2003 Connecticut, Iowa and South Carolina have adopted reforms to address their

sentencing disparities:

 Connecticut equalized penalties for crack and powder in 2005. Prior to
reform the state distinguished between crack and powder at a ratio of 56.7-

to-1.

 Iowa modified the state sentencing disparity in 2003 from 100-to-1 to 10-to-
1.

5 CRACKED JUSTICE

 South Carolina equalized penalties for cocaine offenses in two stages, in 2005
and 2010. Prior to reform the state maintained a complex disparity scheme

between the two drugs.

State lawmakers should build upon the momentum resulting from passage of the

FSA to advance policy changes that address the unfairness of treating two similar

drugs differently, as well as limiting overly harsh sentences for low-level drug

offenses. Advancing these reforms will help curb high rates of incarceration which

are costly and produce few public safety benefits, and restore community trust in the

criminal justice system.

6 CRACKED JUSTICE

O R I G I N S O F S T A T E – B A S E D C R A C K – P O W D E R

S E N T E N C I N G D I S P A R I T I E S
Sensationalized news coverage about drug use during the 1980s coupled with the

federal government’s punitive response to drug offenses, even for small quantities,

influenced state lawmakers during the 1980s and early 1990s. Following the adoption

of the federal Anti-Drug Abuse Act of 1986, fourteen states implemented sentencing

disparities between crack and powder cocaine in their criminal codes. Although each

state crafted its laws differently, the national war on drugs impacted state policies,

resulting in harsh penalties for crack cocaine.

Alabama

In Alabama, the state differentiates between powder and cocaine base for eligibility

determinations for drug abuse programs. Defendants charged with a drug offense

may submit a request to the district attorney to enroll in a substance abuse treatment

program as an alternative to prosecution. Eligibility for this diversion program

depends on different quantity levels for powder and crack cocaine. To be eligible,

defendants cannot possess more than five grams of powder cocaine or 500

milligrams (one-half gram) of cocaine base.4 Alabama code does not distinguish

between crack and powder for non-diversionary penalties.

Arizona

Arizona lawmakers established a zero tolerance approach towards drugs which

prioritized drug enforcement and contributed to prison population growth.

Legislators adopted a crack-powder sentencing disparity of 12-to-1 in 1993. The

tough on drugs approach was popularized with commercials showing graphic images

of prison life. 5

California

In California the crack-powder disparity varies. Defendants convicted of possession

with intent to sell 57 grams of powder cocaine are subject to sentences of three to

five years in prison depending on aggravating or mitigating circumstances, whereas

crack cocaine offenders face the same penalties for only 14.25 grams of the drug.

Policymakers in the 1980s sought to control drug use by adopting sentencing

7 CRACKED JUSTICE

enhancements and a tough on crime approach. While several bills introduced in the

California Assembly would have provided assistance to counties to operate drug

treatment facilities, the prevailing sentiment among elected officials was that drug

users needed to be punished rather than helped. 6

“The number of people who have requested services has skyrocketed

on us,” said William Edelman, deputy assistant director of the

Orange County Health Care Agency. “At the same time, for whatever

reasons, we have been unsuccessful in convincing people that there is

a need for treatment services.” 7

Moreover, state policymakers focused on drug quantity as the primary factor in

determining drug penalties, often excluding factors such as a defendant’s role in the

offense, age or mental condition. The California state legislature approved the

“penalty-by-the-pound law” in the mid-1980s, which sought to focus law

enforcement priorities on major dealers of cocaine and other drugs. 8 However,

lawmakers also focused sentencing policies on lengthening sentences for low-level

drug offenses.

California lawmakers have attempted reform in recent years. During 2008,

lawmakers considered a measure that would eliminate distinctions for crack and

powder cocaine from the criminal code resulting in the equalization of penalties as a

strategy to make sentences fairer. The bill was voted out of the Public Safety

Committee on a 5-2 vote and the Appropriations Committee on a 9-6 vote, but

failed to be scheduled for a vote on the Assembly floor.

Maryland

Maryland lawmakers established a 9-to-1 crack-powder sentencing disparity in 1990

during a period when it was popular to adopt mandatory minimum penalties for drug

crimes. At the time, Governor William Donald Schaefer spearheaded efforts to

enhance penalties for drug dealers, broaden authority to seize property bought with

illegal drug profits and impose mandatory minimum sentences for dealers caught

within 1,000 feet of schools. 9 Strong public support and the Governor’s aggressive

8 CRACKED JUSTICE

approach to strengthening criminal penalties encouraged the Maryland General

Assembly to enact strict anti-drug measures that lawmakers had previously

denounced as draconian and unconstitutional. 10 Shifting law enforcement priorities

that focused on increased drug arrests resulted in a growth in the prison population.

As a result, the Maryland legislature convened special sessions in 1989 at the

governor’s request to build more prison beds to meet the demand for increased

capacity. 11

Missouri

Missouri adopted the crack-powder sentencing disparity in 1989 amid reports that

cocaine-related deaths had increased significantly in recent years. 12 In addition to

enhancing penalties, lawmakers adopted legislation to allow police to wiretap

telephones of suspected drug dealers, established harsher penalties for selling drugs

to minors near schools, and heightened penalties for drug-related murders. 13

During that same legislative session, lawmakers considered measures that

marginalized drug offenders, including a no bail policy for persons accused of selling

drugs, suspending drivers’ licenses for anyone convicted of drug possession, and

revoking licenses and certificates of doctors, attorneys and other professionals

regulated by the state board who were convicted of a drug offense. 14

Ohio

Ohio lawmakers adopted penalties for crack cocaine in the mid-1990s and

established a ratio that fluctuates between 10-to-1 and 2-to-1 for low-level crack and

powder offenses. Prior to adopting the disparity, Representative Otto Beatty, an

African American attorney said that both the Ohio House and the Senate had

competed with each other by passing draconian drug legislation. Legislative

approaches focused on attacking drug sales and abuse as criminal justice problems by

toughening sentencing mechanisms and strengthening law enforcement capacity. 15

According to Representative Beatty, the concern around controlling drug use was so

strong that state legislators in Ohio were prepared to go to increasing lengths to stop

it, including weakening basic constitutional liberties by permitting no-knock searches

on people’s homes and imposing life sentences for selling small amounts of

narcotics. 16

9 CRACKED JUSTICE

Ohio lawmakers have explored equalizing crack-powder cocaine sentencing

disparities by lowering the quantity amounts of powder cocaine to trigger felony

sentences in line with crack cocaine. According to reports, attempts to reduce

penalties for crack failed because lawmakers did not want to be perceived as being

soft on crime. 17 During the 2007 legislative session, state lawmakers considered a

policy proposal that would have equalized crack and powder sentences by enhancing

penalties for powder cocaine through lowering the quantity amounts that triggered

criminal penalties. That bill also received bipartisan support and passed out of the

state senate unanimously. According to a legislative analysis, projected costs for

additional incarceration numbered $25 million more per year for harsher powder

penalties. 18 The measure did not make it out of committee in the state house.

In 2010, Ohio policymakers attempted to reform the state criminal justice system

through a comprehensive package of reforms that included eliminating the

sentencing disparity between powder and crack cocaine. The package included

measures to remove any definitions that distinguished crack cocaine from powder

cocaine in the criminal code. 19 While the measure garnered bipartisan support it did

not pass. Today, lawmakers and community advocates continue to work towards

reform.

10 CRACKED JUSTICE

R A C I A L D I S P A R I T Y I N T H E W A R O N D R U G S

H E I G H T E N E D A M O N G C R A C K C O C A I N E C A S E S

While blacks and whites use drugs at similar rates, more than one-third of all drug

arrests are of African Americans and they are serving state prison sentences on drug

charges at a rate ten times higher than whites.20 Although drug war penalties never

explicitly referred to race, the “tough on crime” rhetoric in response to the crack

epidemic demonized crack as a “black” drug and thereby shaped the drug problem

among political leaders and law enforcement. Statistics from the Substance Abuse

and Mental Health Services Administration (SAMHSA) indicate that whites

constitute 50% of crack users, blacks 37%, and Latinos 13%.21 Despite this, African

Americans constitute about 80% of persons incarcerated in federal prisons for crack

offenses.

Data on the racial composition of crack offenders at the state level is difficult to

obtain, but in two of the states that maintain a sentencing disparity, Iowa and Ohio,

we can observe these effects. As the table below illustrates, blacks are considerably

more likely than whites to be admitted to prison for a crack offense. Specifically,

blacks account for 81% of crack admissions in Iowa, and 75% in Ohio.

Percentage of Crack and Powder Cocaine Admissions to Prison by Race, 2008

Iowa22 Ohio23
Blacks Whites Hispanic Blacks Whites Hispanic
Powder Cocaine 42 35 22 57 43 0

Crack Cocaine 81 14 5 75 25 1

11 CRACKED JUSTICE

S T A T E S H A V E E N A C T E D R E F O R M

In recent years, three states moved to reform sentencing disparities between crack

and powder cocaine. Lawmakers in Iowa worked to reduce the ratio that triggered

criminal penalties for the two forms of cocaine, while South Carolina and

Connecticut equalized the ratio between crack and powder.

Connecticut

Connecticut equalized penalties for crack and powder in 2005. Prior to reform the

state had penalized crack and powder offenses in 1987 using a ratio of 56.7-to-1; a

penalty of five years to life imprisonment had been triggered by trafficking either in

one ounce (28.5 grams) of powder cocaine or .5 grams of crack cocaine. In 2005, a

coordinated grassroots campaign encouraged lawmakers to reform criminal penalties

for crack and powder cocaine. Initially, policymakers proposed equalizing crack and

powder offenses by increasing the quantity amount that triggered a five-year

mandatory minimum sentence from a half gram to one ounce (28.5 grams), the

quantity amount that triggered the same sentence for powder cocaine. While the bill

garnered bipartisan support in the Connecticut legislature the reform measure was

vetoed by the governor.

As a result, lawmakers and state advocates worked to develop a compromise that

would reform state law. The General Assembly eliminated the sentencing disparity

between crack cocaine and powder cocaine by increasing the trigger quantity for

crack cocaine to one-half ounce (approximately 14.25 grams) and lowering the

quantity amount for powder cocaine to the same level.

Iowa

During 2003, the Iowa legislature lowered its sentencing disparity from 100-to-1 to

10-to-1. The lower ratio impacts the quantity amounts that determine the maximum

statutory penalty. For example, 500 grams of powder cocaine or 50 grams of cocaine

base trigger a maximum penalty of 50 years imprisonment. Iowa also requires a

defendant who commits one of these offenses to serve a minimum period of

confinement of one-third the maximum sentence before being eligible for parole.

12 CRACKED JUSTICE

South Carolina

The South Carolina legislature worked to equalize sentences between crack and

powder cocaine offenses in 2005 and advanced that reform in 2010 by incorporating

equalization as a policy throughout the criminal code. In 2005, the legislature

reduced penalties for a first-time possession offense of cocaine and made the offense

a misdemeanor.

That reform attempted to remove the distinction between crack and powder cocaine

from state law and bring the penalties for crack offenses in line with other drugs.

Previously, persons convicted of first offense crack possession faced up to five years

in prison, while those convicted of first offense powder cocaine possession faced a

maximum two-year sentence. The 2005 legislative reform established three-year

maximum sentences for first time crack and powder offenses. While crack offenders

experienced a reduction in possible sentences, powder offenders were subjected to

more serious penalties than prior to the reform.24

The 2005 revision did not equalize all penalties for crack and powder offenses in the

state code. As a result, the legislature worked to complete the work in 2010. It

passed an omnibus sentencing reform measure that eliminated mandatory minimums

for first-time drug possession offenses and established probation or parole as a

sentencing option for second- and third-time drug possession offenses. The

measure also moved to restructure drug penalties throughout the state criminal code,

resulting in equal penalties for crack and powder cocaine.25

13 CRACKED JUSTICE

C O N C L U S I O N A N D R E C O M M E N D A T I O N S

In the post-Fair Sentencing Act environment, there is an opportunity to continue to

build upon reforms to make the criminal justice system more effective and fairer at

the state level. Recommendations to address state crack and powder sentencing

disparities include:

 Eliminating crack and powder cocaine sentencing disparities. Decades
of research has determined that crack cocaine and powder cocaine are both

harmful drugs, but have similar effects on the body and brain. Distinguishing

between the two drugs for sentencing purposes contributes to racial disparity

in prisons and sends a message of disparate treatment within communities of

color.

 Increasing trigger quantities for nonviolent drug offenses. Low
quantity triggers that result in long prison sentences result in excessive

incarceration of low-level drug offenders.

 Ending mandatory minimum sentences for low-level drug offenses.
Mandatory minimums do not reduce drug use but result in lengthy prison

terms that contribute to overcrowding. Repealing mandatory minimum

provisions and allowing for judicial discretion for low-level drug offenses will

restore fairness to state criminal justice systems.

As policymakers enter new legislative sessions, they face difficult budget decisions

that require balancing funding for prisons with education, health care and other vital

services. Exploring opportunities for modifying sentencing policies will result in cost

savings that can be reallocated to community programs and substance abuse

treatment programs at a local level. This investment offers a better approach to

reducing crime and substance abuse then continued high levels of incarceration.

14 CRACKED JUSTICE

1 Egan, Timothy, “Crack’s Legacy: A special report; In States’ Anti-Drug Fight, A Renewal for Treatment,” The New York Times June 10, 1999: A+.
Print.

2 “Report to Congress: Cocaine and Federal Sentencing Policy”, United States Sentencing Commission May 2007.
3 Testimony of Charles Schuster before the Subcommittee on Crime and Drugs of the Senate Judiciary Committee, May 22, 2002.
4 Ala. Code § 12-23-5(2)(b), (c).
5 Egan, 1999.

6 Maugh H Thomas, “Few Beds for Indigent Addicts” Los Angeles Times July 6, 1986: 35. ProQuest Historical Newspapers Los Angeles Times

(1881-1987)

7 Ibid.

8 Ibid.

9 “Issues Facing MD. Legislature,” The Washington Post January 8, 1989: Metro 5D. Print.

10 Lancaster John, “Tougher Drug Bills Find Counsels for the Defense; Lawyers in MD. House Bow to Outcry,” The Washington Post April 9,

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