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Sentencing disparity for cocaine under attack Crack nets users more prison time than powder drug
Critics call it the 100-to-1 disparity. A person caught with 5 grams of crack cocaine — the equivalent of five Sweet 'N Low packets — gets a mandatory minimum of five years in federal prison.
But it takes 500 grams of powder cocaine — more than a one-pound bag of Domino Sugar — to merit that same punishment.
As a result, a disproportionate number of blacks, usually poor, land in prisons on low-level federal drug convictions. Yet those caught with the more expensive powder cocaine, usually wealthier whites and Latinos, do not share the same judicial fate.
This year, that inequity may change. For the first time in about two decades, U.S. lawmakers have introduced a flurry of legislation to create a fair and uniform federal sentencing structure for both forms of the drug.
In addition, next month the Supreme Court is scheduled to weigh in on the matter. The case involves Derrick Kimbrough, a black veteran of the first Gulf War. He received a 15-year prison sentence from a federal judge for dealing crack and powder cocaine and possession of a firearm in Virginia. But sentencing guidelines required a much longer sentence.
An appeals court later ruled that judges can't impose sentences shorter than the guidelines just because they don't agree with the sentencing disparity for crack and powder cocaine offenses. But now the Supreme Court will decide if judges are bound by the sentencing requirements.
"Judges want to feel that they are administering justice fairly and equally ... but it's hard to say that equal justice is being administered," said U.S. District Judge Reggie B. Walton, who was the deputy drug czar in the President George H.W. Bush's administration. "It is fundamentally unfair."
It has been 21 years since Congress passed the Anti-Drug Abuse Act that created mandatory penalties for federal drug offenses, Washington's get-tough response to the crack epidemic of the 1980s.
Lawmakers concocted higher penalties for the cheaper and diluted form of cocaine.
For the fourth time since 1995, the U.S. Sentencing Commission urged Congress in May to do away with the sentencing disparity. Fearing they will appear politically soft on the war against drugs, Democrats and Republicans alike have done little to address the issue, advocates said.
Until now. Three senators and two House members have proposed bills to change the laws. Most civil liberties groups are endorsing presidential hopeful Sen. Joe Biden's version of the bill. The Delaware Democrat, chairman of the judiciary subcommittee on crime and drugs, wants to level the playing field for both drug offenses.
"Busting every 5-gram dealer is not going to stop the flow of the drugs into the country," said Jasmine Tyler, deputy director of national affairs for the Drug Policy Alliance, who with the American Civil Liberties Union hosted a forum on the issue at Texas Southern University last week.
"A better law would change the face of who the defendants really are," she said.
State laws requiring mininum sentences for drug possession vary. There are no Texas sentencing guidelines for crack cocaine and powder cocaine.
The growing momentum in Washington has been welcome news for many in the advocacy world, not to mention for those who practice criminal law.
Dane Johnson, a Houston lawyer, said he sees the uneven hand of justice all the time.
Two years ago, one African-American male client received 30 years in federal prison for possession of one pound of crack. Another client, a Latino male, received three years in prison for possession of 11 pounds of cocaine.
"It is discriminatory, even though there is not a lot of difference in the substances," Johnson said. "The only difference is (crack cocaine) is distributed along socioeconomic lines."