Cracked Justice

Decades-old laws that mandate harsher prison terms for people arrested with crack cocaine than for those caught with cocaine powder are based on misperceptions, contribute to racial disparity, and fail to stop drug abuse. The Anti-Drug Abuse Acts of 1986 and 1988 included mandatory penalties for crack cocaine offenses that were the harshest federal sentences ever adopted for low-level drug offenses. The measures included a five-year mandatory sentence for first-time simple possession of five grams of crack cocaine—the equivalent of two sugar packets.

Our study Cracked Justice [pdf] reports that 13 states, including Missouri, Oklahoma, and Ohio, distinguish between crack (cocaine cooked in baking soda) and powder cocaine for sentencing purposes. Congress reduced the federal sentencing disparity last year. Now that cocaine sentencing has gained national attention, state lawmakers may be motivated to advance reform efforts that make sentencing more effective and fair by eliminating the disparity and reducing excessive penalties for low-level crack offenses.

States passed crack cocaine laws during the crack panic of the 1980s and 1990s.  In those days, it was widely and wrongly believed that crack was more addictive and led to more drug violence than did the chemically identical powdered form. Years of research have disproved these myths. But state legislatures adopted policies under which defendants arrested with small amounts of crack were being sent to prison for far longer terms than defendants caught with similar quantities of powder.

This approach has been proven to be unfair. In Iowa, we found that more than 80 percent of prisoners incarcerated for crack offenses were black; in Ohio 75 percent of persons in prison for crack cocaine were black.

Missouri has the harshest disparity in the country with a ratio of 75-to-1, and New Hampshire’s 28-to-1 disparity also exceeds the newly reformed federal 18-to-1 distinction. In Oklahoma, where the sentencing disparity is 6-to-1, 5 grams—the weight of two sugar packets—triggers a 10-year mandatory minimum sentence.  In contrast, the federal law sentences people to a 10-year mandatory minimum term for 280 grams of crack cocaine.

We found that the 13 states with sentencing disparities adopted their policy after Congress enacted the original 100-to-1 crack-powder sentencing disparity in 1986.

A few states have already moved towards reform. Missouri’s House Bill 913 would modify the nation’s most severe sentencing disparity. If the measure is adopted, the Show Me State would pass a measure similar to South Carolina and Connecticut, both of which eliminated their sentencing disparities in recent years. This isn’t a question of being soft on crime. It is an issue of fairness and sound public policy.