Crack versus cocaine – what is the difference? Not much. Without going into a chemistry dissertation, crack is a product of powder cocaine being cooked with various legal household products. Whether the drug is in powder cocaine form or crack cocaine form, both are extremely deadly and they each inflict unimaginable amounts of damage to families and communities across this nation. 

You would think that a person caught with cocaine in either form would be looking at some serious time in prison, and rightfully so. But is it fair that federal sentences for crack cocaine offenders, in which African-Americans are a majority, are far longer than sentences for powder cocaine offenders, in which African-Americans are a minority? I don’t think so. And apparently the U.S. Supreme Court doesn’t think so either.

Last week the Supreme Court ruled 7-2 that federal judges could use their own discretion in handing down shorter sentences in an effort to close the gap between crack and cocaine punishments in our justice system. Civil rights organizations, members of Congress, and federal judges themselves have been fighting against racially unfair sentencing guidelines for decades. This ruling is a first step in the right direction towards racial equality before the eyes of the law. Furthermore, the U.S. Sentencing Commission (USSC) quickly followed the Supreme Court ruling by announcing their decision that these new sentencing laws would be retroactive.

The War on Drugs/Minorities
So, how did we get here? Well, it all started when President Nixon declared a “war on drugs.” Then President Reagan ratcheted up the fight in the 80’s with the creation of unsuccessful programs such as “Just Say No,” as well as forming the Office of National Drug Control Policy (ONDCP) – an arm of the government that is largely responsible for the federal laws that are the source of this racist system of criminal justice.  

At the time, drug use was becoming an epidemic around the country, especially in low-income communities. When crack hit the streets, its path of destruction through communities across the nation became visible to all Americans. But it was the death of University of Maryland basketball star Len Bias that was the final straw and catalyst for the stiffening of federal drug sentences. The Anti-Drug Abuse Act of 1986 was a federal statute that was put forth to begin the crackdown on America’s drug problem, although the problems it has created today may be far worse.

While the so-called “war on drugs” has been one of the most unsuccessful and resource-draining efforts ever made by the federal government, one would think that the initial purpose – to crackdown on drug use – was an honorable one. Well, if that was so, then why did the government create such a disparity in the sentencing guidelines between powder cocaine offenders and the offenders caught with the drug’s derivative, crack cocaine?

The numbers are astonishing. The federal law that was originally put in place called for mandatory minimum sentences for crack and powder cocaine violators to be based on a 1:100 ratio. 

Therefore, if a person was found guilty of possessing just 5 grams of crack, the federal sentencing guidelines called for a 5 year mandatory minimum federal sentence to be handed down. However, in order to activate the same 5 year mandatory minimum for possessing powder cocaine, a person would have to be found guilty of possessing 500 grams.

When this is compounded with the racial demographics of the offenders, it is clear why so many civil rights organizations have been at war with these laws for years. In 2006, African-Americans accounted for about 82% of all federal crack related convictions. However, when looking at federal powder cocaine related cases, African-Americans accounted for only about 27% of all convictions.

Both the Clinton and Bush administrations opposed any changes to the law, and the Bush administration even urged the Supreme Court not to hear this latest case. There has long been a defense that the law is not racist in nature, but the arguments that these people have been using for years are finally drying up. 

The Sentencing Project has been a pioneer in the fight for racial justice before the law. The Sentencing Project claims that the disparity in the sentencing guidelines was originally justified on sensationalized misrepresentations of crack by the lawmakers of the day – including that crack is a violence-inducing drug with fifty times the addiction level of powder cocaine. We clearly know that there is no truth to that today, yet the law has hung around all of these years. 

Additionally, The Sentencing Project reports that regardless of the form that cocaine may be in, the physiological impact is just the same – further removing all reasons to justify the racist law.

Kimbrough v. United States
So after two decades of countless people being properly incarcerated, but for unjust lengths of time, enter Derrick Kimbrough. Kimbrough is not a saint by any means. In January of 2005, Kimbrough, an African-American, plead guilty to possession of 92 grams of powder cocaine, 56 grams of crack cocaine, and weapons charges in a Norfolk federal district court. 

While the U.S. Attorney that was trying the case asked for a 19 to 22 year sentence following the federal guidelines, Judge Raymond A. Jackson issued a sentence of only 15 years.

Judge Jackson noted that it was the crack possession that pushed the sentencing request to a length of time that he found unjust. In his ruling, the judge cited a 2002 USSC report that found that the law greatly exaggerated the threat posed by crack when compared to powder cocaine, and that the law was being applied mainly to low level crack dealers, effectively targeting minority communities.

Then in 2006, the U.S. Court of Appeals for the Fourth Circuit in Richmond overruled Judge Jackson in a unanimous decision from a three judge panel. The panel stated that a 2005 Supreme Court decision made the sentencing guidelines advisory in nature and it did not give district courts the freedom to avoid the mandatory minimum requirements, but allowed judges to vary the sentences as long as they remain “reasonable.”

Reasonable?  By who’s definition?

In United States v. Booker in 2005, the Supreme Court ruled that the guidelines were not in fact mandatory and that appellate courts must review the so-called “reasonableness” of the sentencing judges’ discretionary decisions. Then earlier this year, the Supreme Court adjusted the 1:100 ratio. 

Starting on November 1, the sentencing guidelines for possession of 5 grams of crack were changed from about 5 to 6 years down to about 4 to 5 years, and the guidelines for possession of 50 grams of crack changed from about 10 to 13 years down to about 8 to 10 years.

So that brings us back to the Kimbrough case where the Supreme Court had a decision to make. Citing that the average crack sentence was three years longer than the average powder cocaine sentence and that the “vast majority of those defendants . . . are black men,” the Supreme Court ruled that sentencing judges could determine sentences outside of the guidelines in order to reflect that crack cocaine and powder cocaine merit equal punishment under the law and therefore, Kimbrough’s sentence was acceptable. 

Justice Ruth Bader Ginsburg wrote the majority opinion, Justices Clarence Thomas and Samuel Alito were the two who dissented, and the case is Kimbrough v. U.S., No. 06-6330.

And Justice for All
With the Supreme Court’s latest decision and the USSC’s decision to make the new sentencing laws retroactive, there is a possibility that thousands of people currently in prison could have their sentences reduced or even be released. 

The USSC estimates that roughly 19,500 federal inmates are affected by the new law, of which, it is estimated that 86% of these prisoners are African-American.

These offenders can now have their day in court, as their cases may now be reviewed to determine if their sentences were unjustly determined. Therefore, those crack offenders that were sentenced under the previous guidelines can now be resentenced in a new judicial structure that more fairly compares the punishments of crack and powder cocaine crimes.

The Bush administration has already started a fear campaign in opposition of this decision by insinuating that nearly 20,000 criminals could be released at any moment. In reality, how the retroactivity will be initiated is still to be determined, and it is estimated that it will take years, if not decades. 

Some estimates say that the largest release would come in the first year and may be as high as 2,500 offenders – not much when compared to the nearly 700,000 prisoners released every year. Still, the federal courts retain the power to deny release of any inmates that they deem a danger to society.

While the Bush administration continues its fear campaign against any reform, the Democratic lead House apparently is not necessarily fighting for racial equality either. Even though the Senate Judiciary Committee has scheduled to debate three different reform bills next year, the House has not scheduled a single hearing on any reform issues, although there are some developments now coming as a result of the Supreme Court decision.

Nevertheless, while this latest decision is a step in the right direction, there remains a long path ahead in the fight against racial injustice, let alone the problems of our prison system in general. Whether it is racial inconsistencies in sentences or the focus on punishment over rehabilitation, we still have a lot of work to do. This decision has paved the way for thousands of families to be reunited and now we can only hope that leaders from both sides of the aisle will step up and begin the fight for racial justice. 

However, the USSC’s decision has only provided limited relief from these Jim Crow laws, but it will take an act of Congress to officially change the racist laws on the books.

The Movement Begins
On Tuesday, Congresswoman Sheila Jackson Lee (D-TX) held a press conference, along with The Sentencing Project and other reform advocacy groups, to introduce and provide her support for a House bill entitled the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007.  A similar bill sponsored by Senator Joe Biden (D-DE) has been introduced in the Senate as well. 

Congresswoman Jackson Lee stated that this is a move to show that the legislature is responding to the Supreme Court and USSC’s call for reform and that this “legislation will finally eliminate the disparity” between crack cocaine and powder cocaine sentences.

This new legislation would also establish new grants for drug treatment and rehabilitation programs, as well as refocus law enforcement efforts on the most serious of drug traffickers. As Congresswoman Jackson Lee stated, “We’re not going to take this lying down. The Supreme Court has done what they can do. The USSC has done what they can do. 2008 is the time.”

Take a moment to contact your Congressperson and let them know how you feel about this issue. It is time that we all stand up for racial equality and justice before the eyes of the law.

- Rapáil Eamon