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GOP and Dems Agree: Crack/Powder Disparity Unjust and Needs Reform

Bill Piper and Jasmine Tyler

GOP and Dems Agree: Crack/Powder Disparity Unjust and Needs Reform

On almost every issue Democrats and Republicans are viciously fighting each other. A surprising exception, however, is reducing the crack/powder cocaine sentencing disparity.

The Senate Judiciary Committee voted unanimously last Thursday to pass bi-partisan legislation reforming this two-decade old policy. While they bicker over healthcare, unemployment, education and other issues, senators agree that U.S. drug laws are too harsh and need to be reformed.

Pharmacologically the same drug, crack and powder cocaine are treated very differently within the walls of the criminal justice system.  Current policy generates a 100 to 1 penalty ratio for crack-related offenses.

For instance, distribution of only 5 grams of crack cocaine (about a thimble full) yields a five-year, mandatory-minimum sentence. But it takes 500 grams of powder cocaine to prompt the same sentence.

Crack cocaine is also the only drug for which the first offense of simple possession can trigger a five-year, mandatory-minimum sentence.  Simple possession of any quantity of any other substance by a first time offender — including powder cocaine — is a misdemeanor offense punishable by a maximum of one year in prison.

 When the crack/powder disparity was enacted into law in the 1980s, crack cocaine was believed to be more addictive and more dangerous than powder cocaine. Copious amounts of research, including a recent study by the U.S. Sentencing Commission, have shown that the myths first associated with crack cocaine, and the basis for the harsher sentencing scheme, were erroneous or exaggerated.

For over two decades, powder cocaine and crack cocaine offenders have been sentenced differently, even though scientific evidence, including a major study published in the “Journal of the American Medical Association,” has proven that crack and powder cocaine have similar physiological and psychoactive effects on the human body.

Even though two-thirds of crack cocaine users are white, more than 80 percent of those convicted in federal court for crack cocaine offenses are African American. Moreover, two-thirds of those convicted have only a low-level involvement in the drug trade.

Less than two percent of federal crack defendants are high-level suppliers of cocaine. Taxpayer money should be spent wisely, and concentrating federal law enforcement and criminal justice resources on arresting and incarcerating low-level, largely nonviolent offenders has done nothing to reduce the problems associated with substance misuse.

Equalizing sentences for crack cocaine and powder cocaine would eliminate the most glaring instance of racial disparities in the criminal justice system and focus federal law enforcement resources on higher-level traffickers.

The House Judiciary Committee approved legislation last year that would completely eliminate the disparity. The original Senate bill would have completely eliminated the disparity too, but in order to get bipartisan and unanimous support the legislation was amended in committee last week to reduce the 100-1 disparity to about 20-1.

This is a step in the right direction (and possibly the only way to get reform out of the Senate), but is obviously not good enough.

House Democrats need to bring their complete elimination bill to the floor and pass it. President Barack Obama and Attorney General Holder, who both support complete elimination, need to use their bully pulpits to convince nervous Democratic senators to accept the House language.

And Republicans who support reform, such as Senators Tom Coburn (R-Okla.), Lindsey Graham (R-S.C.), Orrin Hatch (R-Utah) and Jeff Sessions (R-Ala.), need to recognize the historic civil rights moment their party faces and move beyond reducing racial disparities to actually eliminating them.

Bill Piper and Jasmine Tyler are Director and Deputy Director of National Affairs for the Drug Policy Alliance