The Impact of Fairer Sentencing of Crack Possession

Five years after the Fair Sentencing Act, the government assesses the change.
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Five years after the Fair Sentencing Act, the government assesses the change.
(Photo: Kevin L Chesson/Shutterstock)

(Photo: Kevin L Chesson/Shutterstock)

“First of all, let’s get one thing straight: crack is cheap,” Whitney Houston told Diane Sawyer, defiantly, in a now-infamous 2002 interview. “I make too much money to ever smoke crack.... Crack is whack.”

When Sawyer asked her about her recreational use of powder cocaine—a more expensive form of the drug—Houston didn’t deny it. But she seemed adamant that her reputation not be tarnished with a form of the drug that has traditionally been associated with the streets, with poverty, with desperation.

For decades, when it came to cocaine, the federal government operated on prejudices that were just as stark. In 1986 and 1988, Congress passed federal mandatory minimum sentencing laws in an attempt to address a rise in cocaine usage in the nation’s inner cities. As political science professor Michael J. Coyne explains in his chapter of the book Color Behind Bars, this legislation was borne out of

the premise that crack cocaine was 50 times more addictive than powder cocaine. For good measure, Congress doubled the number and came up with a sentencing policy based on the weight of the drug an individual was convicted of selling. Thus, federal sentences for crack were constructed to sentences for powder cocaine in a 100:1 quantity ratio.

So, for instance, someone caught with 50 grams of crack cocaine would trigger a 10-year mandatory sentence, while he or she would have to be carrying 5,000 grams of powder to trigger the same sentence. The result of this discrepancy was that even first-time offenders, if caught with any crack at all, would receive harsh mandatory sentences. “However, these assumptions were more reflective of the prevalent panic and fear that arose out of the explosive growth of the crack market than conclusions of scientific investigation,” Coyne adds.

Because of these assumptions, cocaine prosecutions and sentences were much more frequent, and much harsher, for lower-income drug users. It took several subsequent legislative adjustments for that sentencing disparity—and the racial and class-based disproportionalities that went along with it—to get addressed.

Most notably, the Fair Sentencing Act of 2010 brought the crack-to-powder cocaine statutory penalty ratio from 100:1 down to 18:1, and eliminated the mandatory minimum for simple possession of crack cocaine. (The Obama administration has since expressed support for a 1:1 ratio.) And this week, on that law’s five-year anniversary, the United States Sentencing Commission released a report assessing its impact.

Because of the sheer volume of drug arrests in the U.S., any change in statutory minimums will demonstrably affect prison populations and the cost of incarcerating them.

According to the study, there were only about half as many prosecutions for crack cocaine offenses in 2014, compared to 2010. The crack cocaine sentences in 2014 were also much closer to powder cocaine sentences, and, the commission says, this has helped reduce the overall federal prison population. “Average crack cocaine sentences are decreasing and as a result are becoming more similar to average powder cocaine sentences, which have stayed relatively stable over time,” the Commission concludes. This has helped reduce the overall federal prison population, it adds. Finally, “all this occurred while crack cocaine use continued to decline.”

Outside research supports those claims. While crack cocaine users and dealers certainly continue to be arrested and prosecuted, there are fewer people starting to use the drug; one recent study finds the number of people starting to smoke crack each day at only about one-fifth the number of people who started it each day about 10 years ago. Another found that reductions in the purity of cocaine available in Chicago over several years led to a drop in emergency room visits.

However, despite those improvements in law enforcement parity, and slight gains in public health, critics of the Fair Sentencing Act’s implementation have noticed that the Supreme Court’s mandate that cocaine-offending defendants be re-sentenced retroactively has been ignored in many jurisdictions. And some research suggests that racial and income-based disparities still remain between crack and powder cocaine, as do inequities in how possession of the drugs are punished.

Researchers at New York University, writing in the journal Drug and Alcohol Dependence, looked at national data from 2009 and 2012, and found that crack users are still “at a higher risk of arrest and tend to be of lower socioeconomic status compared to powder cocaine users.” They also found that racial minorities in general were less likely to use powder cocaine, and black people specifically were more likely to use crack cocaine.

But for all that has stayed the same, the Federal Sentencing Act has yielded some real change. Because of the sheer volume of drug arrests in the U.S., any change in statutory minimums will demonstrably affect prison populations and the cost of incarcerating them. The Sentencing Commission’s study estimates that the legislative change shaved an average of 35 months off of the sentences of almost 6,000 drug offenders, and retroactively reduced the sentences of almost 7,000 more.

From all this, the Commission estimates that they have saved the Bureau of Prisons almost 30,000 “bed-years.” That’s a huge amount of time that individual human beings will not be spending locked up in federal prisons for drug possession—even if expressing that change as “bed-years” does seem kind of whack.

True Crime is Lauren Kirchner's weekly column about crime and criminal justice issues.

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