Crack-Powder Cocaine Disparity Update

Hip hop has long critiqued the racial disparities in the criminal justice system. In particular, artists have spoken out in strident rhyme against the crack-powder cocaine sentencing disparity. Ice Cube in "The N***a Ya Love to Hate" and Lil Wayne in "Don'tGetIt/Misunderstood," both critique in detail the devastating impact of the sentencing disparity on communities of color and young African American men (see below). Both Ice Cube and Lil Wayne, amongst dozens of other artists, may take heart in a recent Obama era legislative enactment.

In a completely under the radar moment, a new law of considerable importance was passed by Congress and signed into law by President Obama in August. The Fair Sentencing Act of 2010 was introduced by Senator Richard Durbin (D-IL) in March 2010 and signed into law by President Obama on August 3, 2010. Before passage of the Fair Sentencing Act of 2010, defendants that possessed 5 grams of “crack” cocaine were sentenced to a mandatory minimum prison term of 5 years. In contrast, a defendant possessing powder cocaine had to possess 500 grams of powder before the same 5-year mandatory minimum sentence would be triggered. For more than 20 years, a 100:1 crack-powder sentencing disparity has existed in our nation’s federal legislation. This disparity has literally devastated urban communities across the nation and has cost the U.S. government millions of dollars as federal and state prisons are overflowing with non-violent inmates, an overwhelming majority of which are African American.

As an example, 80% of all defendants sentenced under federal crack cocaine laws in 2008 were African-American, and prison sentences for crack cocaine offenses averaged two years longer than those for powder cocaine. As President Obama observed at the signing of the Fair Sentencing Act, the old sentencing regime was “fundamentally unfair.” The Fair Sentencing Act of 2010 aims to “restore fairness to Federal cocaine sentencing,” by significantly reducing the crack-powder cocaine sentencing disparity from 100:1 to 18:1. Today, a defendant must now possess 28 grams of crack cocaine (rather than 5 grams) before a 5-year mandatory minimum sentence is required. This difference represents an enormous practical effect, which is that this new threshold essentially eliminates the mandatory 5-year minimum for simple possession—most dealers and traffickers carry crack in amounts of 28 grams or more.

Further, the Fair Sentencing Act increases monetary penalties for major traffickers and increases prison sentences for a number of aggravating factors, including violence or weapons possession during cocaine trafficking offenses, which practically shifts the focus of the federal “War on Drugs” from simple possession to violent trafficking. The non-partisan Congressional Budget Office reports that this shift will result in federal prison savings of over 42 million over the next five years.

Why does any disparity continue to exist in the cocaine sentencing regime? While a complete elimination of the crack/powder disparity was what Senator Durbin initially proposed, proponents of an equal sentencing regime were unable to fully eliminate the disparity, no doubt based on the reputation of “crack” as a dangerous drug that inspires greater violence and allegedly delivers great health risks. Still, 18:1 is a watershed moment as it portends an elimination of the disparity in those punished by federal cocaine laws.

Lil Wayne talks about the sentencing disparity in Don'tGetIt here (begins at 2:35).

Ice Cube references the impact of drug sentencing on African American males in The N***a Ya Love to Hate here (begins at :40)


* Portions of this blog post are cross-posted on the SALT Law Blog.