When the Anti-Drug Abuse Act was passed in 1986, it was in the throes of the crack epidemic. Crack was some super-evil drug, invariably addictive, giving its users superhuman strength and such an extreme need for more crack that they would engage in all manner of violent and horrific acts to get the money for their next fix. At the same time, powdered coke was the darling of the hip set, snorted openly at cool places like Studio 54 by hip folks with names everyone knew.
Something must be done, we were told, and so evil crack was sentenced at a ratio of 100:1 to powdered cocaine. Crack was no more addictive than any other form of cocaine, and the rest of the characteristics were pure myth. What was not a myth was that hits of crack were sold at $5 apiece in tiny vials that littered the streets of uptown Manhattan and the Bronx. What was not a myth was that crack use became pervasive and proved ruinous to its addicted users.
Smoking crack gave a quicker, more intense, high and could be cut in its cooking to crystalline form sufficiently to be extremely profitable. Snorting coke, on the other hand, was sold by the gram, was far more expensive and was out of financial reach of crack users. Because of this, crack was the overwhelming drug of choice for black and Hispanic users uptown, while powdered coke was primarily used by wealthier white users. But ultimately, both were just coke, just delivered in different ways to different users.
In 2010, Congress passed the Fair Sentencing Act which reduced the sentencing ratio of crack to 18:1. It was a compromise that made little sense, but it was far better than the 100:1 ratio that preceded it. Since then, efforts persisted in reducing the ratio to one-to-one, crack and powdered cocaine being no different for sentencing purposes. It was supposed to happen. It never did.
Attorney General Merrick Garland has finally issued a memo instructing United States Attorneys to end the sentencing disparities between crack and powdered cocaine.
The Justice Department supports elimination ofthe crack-to-powder sentencing disparity
and has testified before Congress in support of the EQUAL Act, S. 79, which would remove that disparity. As the Department has explained: “First, the crack/powder disparity is simply not supported by science, as there are no significant pharmacological differences between the drugs: they are two forms of the same drug, with powder readily convertible into crack cocaine. Second, as documented by the Sentencing Commission, the crack/powder sentencing differential is still responsible for unwarranted racial disparities in sentencing. Third, the higher penalties for crack cocaine offenses are not necessary to achieve (and actually undermine) our law enforcement priorities, as there are other tools more appropriately tailored to that end.” Justice Department Statement, Senate Judiciary Committee 6 (June 22, 2021).
Of these three justifications for the shift, the first has always been the case (and something I first argued in 1989, only to be laughed at because “everybody knew” crack was far worse than powdered cocaine) and renders all sentence disparities between the two forms of the same drug arbitrary and capricious.
The second argument, that the disparity is that the guidelines differential is “still responsible for unwarranted racial disparities in sentencing” is another “everybody knows” argument that plays off popular opinions of the moment making everything about racial disparity without so much as a thought about correlation and causation.
Offender and Offense Characteristics [For Powdered Cocaine Convictions]
• 90.0% of powder cocaine trafficking offenders were men.
• 66.9% were Hispanic, 25.0% were Black, 6.9% were White, and
1.2% were Other races.
• Their average age was 38 years.
• 67.2% were United States citizens.
• 63.5% had little or no prior criminal history (Criminal History
Category I); 3.4% were career offenders (§4B1.1).
• The median base offense level in these cases was 30,
corresponding to between five and 15 kilograms of powder
Offender and Offense Characteristics [For Crack Cocaine Convictions]
• 91.5% of crack cocaine trafficking offenders were men.
• 77.6% were Black, 15.2% were Hispanic, 6.0% were White, and
1.2% were Other races.
• Their average age was 37 years.
• 97.8% were United States citizens.
• 19.0% had little or no prior criminal history (Criminal History
Category I); 14.0% were career offenders (§4B1.1).
• The median base offense level in these cases was 24,
corresponding to between 28 and 112 grams of crack cocaine.
What these statistics reflect is that crack dealers were mostly black citizens and powdered coke dealers were mostly Hispanic, with a far lower percentage of citizens. Also notable that the median base offense level for crack was 24 (51-63 months at criminal history level 1), but 30 (97-121 months at criminal history level 1) for powdered. For the benefit of the unfamiliar, 121 months (10 years, one month for the math challenged) is the kickers, as ten years is the mandatory minimum for five kilos of coke and 280 grams of crack.
There’s a fairly obvious and practical reason for these distinctions. Crack is downstream from powdered coke, with crack dealers buying powdered cocaine, and cutting and cooking it into crack for sale. Accordingly, the importers carry greater weight and the crack dealers lesser weight. And given where cocaine comes from, the race of each makes complete sense. Notably, convictions of white traffickers is pretty much the same for both crack and powdered coke, at about six percent. This isn’t a black and white problem. It never was.
But even with this thrust to end the disparity, the fact that the law remains unchanged remains a problem.
If charging a mandatory minimum term of imprisonment under Title 21 for a drug offense involving crack cocaine is deemed warranted under this memorandum, prosecutors should charge the pertinent statutory quantities that apply to powder cocaine offenses. The Criminal Division and the Executive Office for United States Attorneys will issue further
guidance on how to structure such charges.
At sentencing, prosecutors should advocate for a sentence consistent with the guidelines
for powder cocaine rather than crack cocaine. Where a court concludes that the crack cocaine guidelines apply, prosecutors should generally support a variance to the guidelines range that would apply to the comparable quantity of powder cocaine.
As noted above, prosecutors must always be candid with the court, the probation office,
and the public as to the full extent of the defendant’s conduct and culpability, including the type and quantity of drugs involved in the offense, even if the charging document lacks such
Do these caveats mean that for all the good intentions and marketing ploys used by the Department of Justice, the outcomes will be no different other than AUSA getting to claim it’s not their fault? Time will tell. But given that Congress has yet to fully correct the errors of its original crack panic, it’s better than nothing.