Most experts agree that America’s “war on drugs” has been an expensive failure. The costs are not limited to taxpayers, however. Countless Americans have received lengthy prison sentences for non-violent drug offenses. Marijuana, which is now legal or decriminalized in many states, has been at the root of many such sentences.
In addition to costing money and freedom, America’s drug laws have also been written and applied unevenly. One of the most glaring examples is the sentencing disparity between powder cocaine and crack. In this post, we’ll briefly discuss the history of this problem and recent federal policy changes intended to address it.
A decades-old law that many see as racist
In 1986, federal legislators passed the Anti-Drug Abuse Act. Numerous politicians who were responsible for that bill are still in politics today, including President Biden, who was then a senator. Included in the bill was a provision that imposed a five-year mandatory minimum sentence for possessing just 5 grams of crack cocaine. If someone was caught with powder cocaine, they would need to possess 500 grams to receive the same sentence.
The disparity between powder and crack cocaine was 100:1 despite the fact that there is no scientific proof that crack is more addictive, more dangerous or more likely to result in violent crime. In fact, studies have debunked these assumptions.
Many critics of the bill have called the disparity racist. While not true in all cases, public perception is that powder cocaine is an upper-class white person’s drug while crack cocaine is seen as a drug used by African Americans. In practice, this disparity has led to a disproportionate number of black people behind bars.
Changes to the law and enforcement of it
In 2010, Congress passed the Fair Sentencing Act, which kept the disparity in place but reduced it. The ratio is now 18:1 instead of 100:1. The reduction was not applied retroactively until the passage of the First Step Act in 2018.
Recently, U.S. Attorney General Merrick Garland instructed federal prosecutors to essentially treat crack and powder cocaine the same when issuing charges and making sentencing recommendations. This is a change in policy, not in law. While it is a welcome move, it doesn’t have the force of law, meaning that the policy could end as soon as a different administration enters the White House. For this to have a lasting impact, it needs to be passed as legislation.
If you’ve been charged with any drug crime, please understand that the stakes are high. As such, it is critical to work with an experienced attorney who can protect your rights and help you utilize all of your legal options.