Two decades ago, in the midst of a drug-induced panic, Congress created draconian sentences for crack cocaine offenses. Since then the panic has ebbed, but the penalties are still with us, despite what a recent U.S. Sentencing Commission report describes as "almost universal criticism from representatives of the judiciary, criminal justice practitioners, academics and community interest groups."
In 1986 Congress established a five-year mandatory minimum sentence for first-time trafficking offenses involving at least 5 grams of crack, equivalent to as few as 10 doses. That's the same as the penalty for 500 grams or more of cocaine powder, which amounts to thousands of doses. Likewise, Congress made the penalty for 50 or more grams of crack the same as the penalty for 5,000 grams of cocaine powder: a 10-year mandatory minimum.
Two years later, Congress expanded the five-year mandatory minimum to cover mere possession, even for personal use. By contrast, simple possession of virtually any other drug, including cocaine powder, heroin and methamphetamine, is a misdemeanor punishable by a maximum sentence of one year.
The extraordinarily harsh treatment of crack offenders reflected the belief that smokable cocaine was much worse than snortable cocaine -- 100 times as bad, to judge by the cutoff quantities Congress chose. According to conventional wisdom, crack was especially dangerous because it caused violence, immediate addiction and crippling birth defects. All of these premises turned out to be wrong.
As the sentencing commission notes, "almost all crack cocaine related violence is of the 'systemic' type, that is, violence that occurs within the drug distribution process," as opposed to violence committed under the influence of crack. The crack trade was especially violent in the 1980s because it was a new, unsettled market that attracted young, impulsive men with guns, not because of the drug's pharmacological effects, which are the same as cocaine powder's.
The federal government's own data belie the notion that crack is "almost instantaneously addictive," as a pharmacologist quoted by Newsweek declared in 1986. Nora Volkow, director of the National Institute on Drug Abuse, told the sentencing commission "about 5 percent of recent-onset cocaine abusers become addicted to cocaine within 24 months of starting use." According to the 2005 National Survey on Drug Use and Health, less than one in 10 Americans who had tried crack were using it even as often as once a month.
Nor is it clear that crack is more addictive than cocaine powder. While the relatively short, intense effect of smoked cocaine might make users more prone to binges, that does not necessarily mean they are more likely to be daily users. Although crack is supposedly irresistible, the sentencing commission notes that "current (i.e., past-month) crack cocaine use has never been reported above 0.3 percent"; by that measure, cocaine powder is more than twice as popular.
Finally, initial concerns that "crack babies" would suffer severe, permanent harm because of their mothers' prenatal drug use have proven unfounded. Although "in utero exposure to cocaine is associated with a greater risk for premature birth," the sentencing commission reports, "there does not appear to be a neurological difference between cocaine exposed babies and study controls." More relevant to assessing the disparate legal treatment of smoked vs. snorted cocaine, there's no evidence that the two forms of the drug have different effects on fetuses.
The lack of justification for the legal distinction between crack and cocaine powder is especially troubling when you consider the racially skewed impact of the sentencing gap. Crack offenders in the federal system are overwhelmingly black, while cocaine powder offenders are mostly white or Hispanic.
That does not mean supporters of the crack crackdown (many of whom were black) had racist motives. But the perception that blacks have been targeted for especially harsh treatment cannot be ignored by anyone who cares about equality before the law, especially since there is no rational basis for this de facto discrimination.
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