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A Call to End the Disparity in Federal Drug Crime Sentencing

A Call to End the Disparity in Federal Drug Crime Sentencing

In late May, the Senate unanimously passed the “Fair Sentencing Act,” which is currently being considered in the House of Representatives. The Act would reduce the sentencing disparity between crack and powder cocaine offenders from a rate of 100-1 to 18-1. Though only a 1-1 sentencing ratio between crack and powder cocaine offenders can be considered truly just, passage of the “Fair Sentencing Act” would be an important first step in ending sentence disparity for drug offenses.

Sentencing Disparity

The sentencing disparity between crack and powder cocaine offenses was initially based on the flawed assumption that use of crack cocaine, is more addictive and leads to more violence than powder cocaine use. As a result, Congress enacted separate mandatory sentencing minimums for crack cocaine and powder cocaine offenses. Although experts proved this theory to be false, Congress has failed to repeal the discriminatory minimum sentencing statutes.

The minimums are both explicitly discriminatory and discriminatory in practice, given that the majority of crack offenses are committed by African-Americans. So stark is the disparity that in 2006, 82 percent of those convicted for crack-related offenses were African-American and 72 percent of powder-related offenders were Caucasian or Hispanic. The practical effect of the discriminatory minimums is that sentences for possession, manufacture or distribution of a given amount of crack cocaine are roughly equivalent to the sentences for possessing, manufacturing or distributing 100 times the same amount of cocaine in powder form.

The Call for Reform

The unanimous passage of the “Fair Sentencing Act” in the Senate speaks to the broad support for reform of disparate cocaine sentences. Both President Barack Obama and former President George W. Bush have lobbied for elimination of the sentencing disparity. However, not all lawmakers are willing to completely eradicate the disparity. When the “Fair Sentencing Act” was initially introduced, the bill eliminated the disparity. However, when the bill was reviewed in conference, legislators were compelled to compromise with some members of the Judiciary Committee who insisted that the disparity remain in place at a ratio of 18-1. Similarly, the “Powder-Crack Penalty Equalization Act of 2009,” which completely eliminated the disparity, which was passed by the House Judiciary Committee last July, has yet to come to the floor for a vote, due to resistance against completely eliminating the sentencing disparity.

The ACLU has stated that, “The Fair Sentencing Act is an encouraging step toward eliminating the sentencing disparity between crack and powder cocaine, but still allows for a needlessly unfair sentencing framework… though the bill’s passage is long overdue, it does not go far enough. Without a simple and fair 1-1 sentencing ratio for crack and powder cocaine, we cannot say that these sentencing laws meet constitutional muster.” Hopefully, passage of the “Fair Sentencing Act” is only the first significant step in completely eradicating cocaine sentencing disparities.


If you have been charged with a cocaine-related offense, it is important to seek the advice of an experienced criminal defense attorney that has the experience and knowledge of the United States Sentencing Guidelines (USSG) to advocate vigorously on your behalf. It is especially important because in addition to mandatory minimum sentences, a cocaine-related conviction often carries additional penalties such as lengthy prison sentences, loss of employment, forfeiture of property and significant fines.