A "Second Look" at Crack Cocaine Sentencing Policies: One More Try for Federal Equal Protection

Article excerpt

I. Introduction

On any given day, nearly one third of all black men aged twenty to twenty-nine are under the supervision of the criminal justice system -- in prison or jail, on probation, or on parole.(2) This represents an increase of 40% in the criminal justice supervision rate of black males since 1990.(3) As a result, an enormous segment of the young black male population is removed from both the job market and the black community at large by the disability and stigma of conviction.(4) The effects are devastating, both on an individual level and on the African American community as a whole.(5)

The increase in the rates of incarceration of young black males is due primarily to the focus of the "war on drugs" on black drug users.(6) For drug offenses, the African American proportion of arrests increased from 24% in 1980 to 39% in 1993, even though African Americans comprise only 13% of monthly drug users.(7) From 1986 to 1990, the number of minority jail inmates increased more than twice as fast as the number of white inmates, and the increase in the number of arrests of minorities for drug offenses was almost ten times the increase in arrests of white drug offenders.(8) The precipitous increase in drug sentences for minorities is best understood by examining federal drug sentencing provisions that were adopted during the same time period.(9)

In 1984, Congress enacted the Sentencing Reform Act(10) which provided, in part, for the creation of the United States Sentencing Commission to develop a system of guidelines that would structure and direct the sentencing discretion of federal judges. As the newly created Sentencing Commission began to develop its guidelines, Congress, engulfed in election-year pressures and a deluge of distorted media images,(11) enacted several "mandatory minimum" statutes aimed primarily at drug and weapons offenders. Among these statutes were two enacted in 1986(12) and 1988(13) for sentencing federal cocaine offenses. These statutes differentiate between powder and crack cocaine, singling out crack for much harsher punishment.(14)

The Sentencing Commission subsequently recommended, and Congress adopted, this "100-to-1" quantity ratio in its Sentencing Guidelines. The ratio is therefore applicable to all federal offenses involving crack or powder cocaine.(15) At every quantity level federal defendants convicted of a crack cocaine offense receive the same sentences as powder cocaine defendants convicted of an offense involving 100 times as much cocaine.(16)

The impact of the "100-to-1" disparity is felt almost exclusively by black defendants. In 1993, for example, blacks accounted for 88.3% of federal crack distribution convictions; 4.1% were white. in contrast, whites accounted for 32% of those sentenced for powder cocaine distribution; 27.4% were black.(17) Since the average sentence for trafficking in crack is more than five years longer than the average powder sentence,(18) federal cocaine laws clearly have a large disproportionate impact on black defendants.(19)

Motivated in part by this racial disparity in cocaine sentencing,(20) the Sentencing Commission recently promulgated an amendment to the Sentencing Guidelines that would equalize "sentences for offenses involving similar amounts of crack cocaine and powder cocaine."(21) The Commission also recommended the elimination of the differential treatment in the "mandatory minimum" statutes.(22) Absent Congressional action, the proposed amendments would have become law on November 1, 1995.(23) Prior to November 1, however, Congress passed and the President signed a bill, disapproving the proposed amendments.(24) Congress directed the Commission to conduct further study and resubmit recommendations for changes to the Guidelines governing cocaine-related offenses. Congress further directed that the recommendations must reflect that sentences for trafficking in a given quantity of crack should generally exceed the sentence for trafficking in a like quantity of powder cocaine. …