Why do we still punish crack and powder cocaine offenses differently?

U.S. Attorney General-designate Merrick Garland said at his confirmation hearing last week that he supports eliminating the disparity between federal prison sentences for crack and powder cocaine-related crimes. This reform is supported by civil rights organizations, bipartisan justice reform advocacy groups, and the National District Attorneys Association. It’s time for Congress to act. 

The crack-powder sentencing disparity is the most racially discriminatory provision in federal law — and it has been on the books for 35 years. In 1986, then-U.S. Sen. Joe Biden and Congress passed a law requiring the same lengthy prison term for crimes involving 5 grams of crack as for those involving 500 grams of powder cocaine, infamously known as the 100:1 disparity.

Within a few years, all of the justifications for the wildly disparate treatment, including the allegedly extra addictive nature of crack, were proven false. But the fallout from this piece of the war on drugs was just beginning. Cheaper than cocaine, crack became the drug of choice for poor people, including many Black Americans, and the two-fold problem of drug addiction and lengthy prison sentences on crack hit Black communities the hardest.

Before Congress established the crack-powder disparity in 1986, the average federal drug sentence for Black people was 11 percent higher than for whites. In 1990, the average federal drug sentence for Black defendants was 49 percent higher.

This disparity continued unchecked for two decades before Congress made any attempt at remediation, passing the Fair Sentencing Act in 2010 to reduce the crack-powder disparity to 18:1 and shortening prison sentences.

The amount of unnecessary misery averted by this reform was staggering: The U.S. Sentencing Commission estimated that reducing the disparity cut nearly 24,000 years from the excessive sentences Black people were serving for crack cocaine offenses. The federal prison population and crime rates fell. 

While the Fair Sentencing Act was a major improvement, the 18:1 measure is still an arbitrary difference that cannot be defended. There simply is no sound scientific reason to punish crack and powder cocaine offenses differently. For many Americans, especially Black Americans, the unequal treatment of crack and powder cocaine offenses is the most glaring example of racial discrimination in the criminal justice system.

This unfairness does not make communities safer. As Asa Hutchinson, the former head of the U.S. Drug Enforcement Administration and current Republican governor of Arkansas, testified before Congress in 2010: “The strength of our system of justice is totally dependent on the perception of fairness and the acceptance of penalties by the general public as being largely just. … Under the current disparity, the credibility of our entire drug enforcement system is weakened.” 

Hutchinson was referring to the old 100:1 disparity, but his argument holds today because the new 18:1 scheme continues to cause disproportionate harm for people of color. In 2019, for example, Black people made up 81 percent of all federal crack convictions, a percentage as high as it was in some years before Congress passed the Fair Sentencing Act. 

States combat illegal drug use without relying on disparate punishments. Indeed, most states do not punish crack and powder cocaine differently, and even those that did at one point have moved to eliminate or reduce their disparities in recent years.

In recent years, Congress has taken steps to undo some of the harsh, counterproductive policies adopted during the 1980s and 1990s. It has scaled back mandatory minimum sentences for low-level offenses, eliminated the “three-strikes-you’re-out” mandatory life sentence for drug crimes, and restored Pell Grant eligibility for people in prison.

But people across the country — Black and white — recognize that our criminal justice system is not what it should be. After George Floyd’s death in Minneapolis last year, a record 69 percent of Americans said that Black people and other minorities are denied equal treatment in the criminal justice system. We can do better.

Eliminating the disparity between crack and powder cocaine sentences will advance racial justice and improve public safety. Momentum for the idea is growing. In addition to Garland’s commitment of support, Sen. Cory Booker (D-N.J.) and Senate Judiciary Committee Chair Dick Durbin (D-Ill.) recently introduced legislation to fix this injustice.

In recent years, Congress has worked in a bipartisan manner to make our federal justice system fairer. We hope they continue this trend by getting rid of the crack-powder disparity once and for all. 

Kevin Ring is the president of FAMM (Families Against Mandatory Minimums), a national nonprofit organization. Follow him on Twitter @KevinARing.

Heather Rice-Minus is an attorney and the senior vice president of advocacy and church mobilization at Prison Fellowship. Follow her on Twitter @RiceMinus.