Eliminating Crack and Cocaine Sentencing Disparities

Recently, we secured a substantial win for a client who was facing a maximum of 33 years in federal prison for a conviction of drug trafficking and possession of a firearm in furtherance of a drug trafficking crime.  My client received approximately a 13-year reduction, for a total of 190 months imprisonment, in part due to new policy proposals from the Department of Justice regarding the sentencing disparities between defendants convicted of crack offenses and defendants convicted of powder cocaine offenses.

Currently, the law treats those charged with crack offenses differently from those charged with powder cocaine offenses, even though scientific and pharmacological studies have proven they are simply two forms of the same substance; one of which can be converted to the other. In June of this year, the Department of Justice presented a policy proposal to the United States Senate Judiciary Committee for a new law—“Eliminating a Quantifiably Unjust Application of the Law Act,” or the “EQUAL Act” which aims to end this senseless disparity.

Currently, the effect of the law as it stands is to impose lengthier sentences on offenders with lower amounts of crack than on offenders with comparatively greater amounts of powder cocaine. This is because of the “18-1” crack/powder ratio—that is, a person convicted of selling 5 grams of crack cocaine is treated the same as someone selling 90 grams of powder cocaine. Since 1995, the U.S. Sentencing Commission, armed with scientific studies, has advocated for the elimination of this disparity. There is a rational basis for tying harsher sentences to controlled substances that may have a greater negative impact on communities. For example, heroin is statistically more deadly, and its trafficking brings more violence than the consumption and trafficking of marijuana. Therefore, it makes sense that the federal penalty for trafficking heroin is generally more severe than the federal penalty for trafficking marijuana. There is no rational basis, however, in disparate penalties for trafficking the same substance in two forms.

Not only is it irrational, the unequal treatment of crack and powder cocaine offenders disproportionally affects Black communities. According to a report by the United States Sentencing Commission, in the fiscal year of 2019 African American defendants accounted for 81% of all federal crack cocaine convictions, and accounted for 77% of them the next fiscal year. Not only were Black people convicted at a disproportionate rate, but the sentences crack-cocaine offenders received were also, on average, longer than the sentences powder cocaine offenders received. As reported by the Department of Justice, the “federal crack cocaine offenders were sentenced to an average of 74 months, while the average powder offender was sentenced to 66 months; meanwhile, the median drug quantity for these crack offenders was 44 grams (less than 2 ounces), and the median drug quantity for powder cocaine was 5,200 grams, about 11 ½ pounds.” Studies have shown that these higher penalties do not necessarily protect the public—they are simply an example of the structural racism that plagues our criminal legal system.

If the EQUAL Act passes and becomes law, the disparities in sentencing for many drug offenders will be eliminated. Until then, we will continue to advocate for downward variances for our clients and to advocate for the court to consider this policy proposal as a factor when fashioning a sentence that is sufficient but not greater than necessary to comply with the purposes of sentencing.