Federal, state crack sentences draw scrutiny
By John Gramlich, Staff Writer
A recent decision by Congress to relax federal penalties for those caught with crack cocaine has raised hopes among civil-rights groups and others that the move will inspire broader changes - including at the state level - to end what one activist called "legislated inequity" across the nation.
The federal government and 13 states mete out tougher punishments for those who possess and peddle crack cocaine than for those who are caught with the same illegal substance in its powder form. In Missouri , for example, a drug dealer who sells six grams of crack faces the same prison term under state law - at least 10 years behind bars - as someone who sells 75 times that amount, or 450 grams, of powder cocaine. No other state makes as sharp a criminal distinction between the two forms of the drug.
Disparities in the way state and federal laws treat crack and powder cocaine offenses have long prompted civil rights advocates - as well as many lawmakers, judges and attorneys - to call for more equitable punishments. Critics say the tougher penalties for crack unfairly target poor black people who live in inner-city areas and are more likely to use the drug, which is a cheaper and more addictive form of cocaine than powder.
Powder cocaine, in turn, is more commonly used by whites.
"The African-American community has been devastated and downgraded by that particular inequity, which was a legislated inequity," Redditt Hudson, racial justice manager of the St. Louis branch of the American Civil Liberties Union , said of Missouri's statute and similar federal policies. "It has broken families. It has destroyed lives."
Others, however, point to the fact that crack cocaine historically has proven more destructive than powder, and played a key role in a nationwide crime surge during the 1980s, when many of the strict state and federal laws were approved.
"It wasn't just the drug itself. It was the correlating violence and weapons," said Barbara Tombs, a senior fellow at the Vera Institute of Justice and a former state sentencing official in Minnesota and Kansas .
A decision by Congress that took effect last month reduced federal sentences for crack offenders by an average of 17 months - and has lent momentum to efforts to introduce more dramatic changes to both U.S. and state sentencing laws. The change, which was formally introduced by the U.S. Sentencing Commission , required congressional approval before taking effect.
The sentencing commission, a federal panel that sets sentencing guidelines for federal judges, now is considering making its new policy retroactive, which it can do without congressional approval and which would potentially reduce sentences for more than 19,000 federal inmates currently behind bars for crack offenses.
At the same time, members of Congress in both parties are using the attention surrounding the new sentencing guidelines to push a host of bills that would make fundamental changes to federal sentencing law, including eliminating what is known as the "100 to 1 ratio." That ratio doles out the same minimum five-year prison term for those caught with 500 grams of powder cocaine and those caught with five grams of crack.
The U.S. Supreme Court also has entered the debate over crack sentences, taking up a case this term that questions whether federal judges have the discretion to depart from sentencing guidelines and issue lesser penalties if they choose.
Critics of tough crack penalties say the flurry of recent federal activity has put a spotlight on a debate that has raged for nearly two decades and could lead to policy changes in the states.
"Politically speaking, there's renewed interest and a window of opportunity - which has never been this big - to reconsider the disparate penalties for crack and better prioritize who we put behind bars," said Adam Gelb, project director of the Public Safety Performance Project , which advises states on criminal-justice policies. Like Stateline.org , the project is funded by The Pew Charitable Trusts.
Of the 13 states that dole out tougher penalties for crack offenses, Ohio may become the first to change its law to provide parity. The state Senate last month approved a bill that would equalize penalties for both forms of cocaine. Notably, however, the legislation would not reduce crack penalties; it would only increase those for powder cocaine. The bill now requires House approval.
Tombs, of the Vera Institute of Justice, said it is politically easier for lawmakers to raise penalties for powder cocaine than to reduce them for crack. " It's hard for any legislator to reduce a penalty once they've made it effective," she said.
Two other states - Connecticut and Iowa - also have changed penalties for crack and powder cocaine offenses in recent years, according to a report to Congress issued by the U.S. Sentencing Commission in May.
In 2005, Connecticut repealed a sentencing law that included a potential prison term of life behind bars for those caught selling as little as half a gram of crack - roughly the equivalent of half a packet of sugar substitute. The same penalty awaited those who sold 28.5 grams of powder. Connecticut lawmakers raised the quantity threshold for crack and lowered that of powder cocaine to balance the two crimes.
In Iowa , which previously used the same "100-to-1 ratio" employed by the federal government, lawmakers reduced the ratio to 10-to-1 in 2003. Unlike the federal government, however, the Hawkeye State uses the ratio only to determine maximum penalties, not mandatory minimums, for crack and powder offenses.
Marc Mauer, executive director of The Sentencing Project , a Washington, D.C.-based advocacy group, said a key test of changing attitudes will come when the U.S. Sentencing Commission announces its decision on making its new sentencing guidelines retroactive - possibly in January.
Mauer said a decision in favor of retroactivity would provide a signal to state legislatures that some of their crack sentencing laws should be revisited.
"If it does go through, it will probably contribute to some of the momentum toward reform. Certainly it would raise some questions in the states as to whether they want to rethink their policies as well," Mauer said. But, he cautioned, "It's a little hard to know which direction they might go."