New Crack-Cocaine Sentencing Disparity, Slightly Less Racist Than Before

Between hullabaloo over attempts to repeal birthright citizenship and the latest marriage equality victory over Proposition 8, one important story got left out of the news this week. Obama signed a law enacting the most significant criminal justice reform he’s enacted while in office.

By putting his signature on S. 1789, the Fair Sentencing Act, Obama addressed one of the biggest racial injustices of America’s drug war. The bill dramatically reduces the disparity in sentences for drug possession of powder and crack cocaine and repeals mandatory minimum sentences for simple possession of crack.

For almost three decades, those arrested for crack cocaine offenses — mostly young, African-American men — have faced far harsher penalties than the white and Hispanic users of powder cocaine, despite the fact that the two drugs are essentially the same. Crack offenders faced a 10-year mandatory minimum for carrying only 10 grams of the drug, while a power-cocaine user would have to be caught with 1,000 grams to trigger the same penalty.

What created this disparity? In the 1980s, when the crack epidemic swept through inner-city communities, white voters panicked. As a result, thousands of low-level crack dealers and users — mostly African Americans — were suddenly targeted in a wave of harsh new sentencing laws. Not surprisingly, today, over 80% of those serving time for a crack cocaine offense are African-American, despite the fact that two-thirds of users are white or Hispanic. The crackdown and subsequent incarcerations of thousands of young African-American men has devastated the community in unimaginable ways.

The legislation signed by President Obama reduces the 100-to-1 sentencing disparity to a fairer 18-1, meaning a crack cocaine offender would need to carry 28 grams to trigger a five-year conviction. The remaining disparity is due to the fact that crack cocaine is associated with more violent crimes and allegedly has a higher addictive effect than power cocaine.

While Congress should have gotten rid of the disparity altogether, the new sentencing law is still a step away from the tough-on-crime mentality that has paralyzed this country for decades.

Meanwhile, the fight for fair sentencing is only half-won. President Obama must commute existing unfair sentences, while Congress needs to decide whether the new law’s provisions are applicable retroactively. If so, up to 20,000 people serving unjust crack sentences in prison could get released, pending judicial review of their cases.

One small step for Congress, one giant leap for criminal justice and racial equality in this country.