The crack/powder disparity: a way out?

Require Main Justice approval for prosecutors to seek 5-year mandatory terms for small crack cases. Reserve that tactic for strategic attacks on violent individuals or groups or focused crackdowns on flagrant open markets.

Under Federal law, possession of half a kilo of cocaine &#8212 about $10,000 worth &#8212 draws a mandatory 5-year minimum sentence. Possession of only 5 grams of crack &#8212 about $500 worth, since prices per unit weight are higher at retail &#8212 draws the same 5-year mandatory. That’s the notorious “100-to-1 crack/powder ratio.” It’s lost on no one that while dealers of large amounts of cocaine are sometimes white, retail crack dealers are almost invariably black or Latino. Anyone with half a kilo of cocaine is a substantial dealer, though under the laws of conspiracy very minor participants (e.g., drivers) can be punished as if the cocaine was all theirs. But someone can easily have 100 rocks of crack &#8212 it doesn’t even to have to be all at one time to count &#8212 without being more than a trivial player.

The law was passed in the aftermath of the Len Bias death, as violent and disorderly crack markets were devastating inner-city areas. At the time, it was supported rather than opposed by black elected officials, whose constituents were (and remain) outraged that law enforcement is so ineffectual in its attempts to protect their kids from drugs and their neighborhoods from the side-effects of dealing.

There’s no doubt that crack &#8212 cocaine prepared to be smoked rather than snorted &#8212 is a nastier drug problem than powder cocaine, in terms of risks to the user, user behavior, and the damage done by retail dealing. Since crack is typically converted from powder cocaine in small quantities, it would be difficult to punish crack dealing without punishing crack-dealing even in modest quantities; there’s no crack equivalent of the 100-kilo bust.

But the racial disparity in sentencing that has resulted from the law has made its repeal a cause célèbre . The federal Sentencing Commission has crafted its guidelines around the mandatories, so even cases that fall below the 5-gram limit draw much harsher sentences if the material is crack rather than powder.

Under current conditions, there’s no rational defense for the 100-to-1 ratio. Even President Bush has figured that much out. But the political process has been stalled by politicians’ fear of looking soft on drugs and by the lack of a convincing rationale for any other ratio. The Justice Department continues to stand firmly behind the current nonsense. While drug policy doves argue for equalizing up, by raising the quantity of crack needed to trigger a mandatory sentence, hawks reply “Why not equalize down?” as if two grossly disproportionate sentences were somehow better than one.

The problem lies deeper: in the decision to base sentencing mostly on the identity of the drug and the quantity sold or possessed for sale. Those facts are extremely poor proxies for what we ought to care about, which is the social damage done by the pattern of dealing that led to the arrest and conviction. The distinctions between flagrant and discreet dealing, between organizations that use kids and those that don’t, and between more violent and less violent ways of doing business all ought to matter more than the distinction between four grams of crack and six grams. But fixing that would involve changing the federal drug-sentencing structure from the ground up.

Today’s move by the Justice Department’s to rein in white-collar crime prosecutions shows the way toward a possible resolution of the crack/powder ratio problem. Most prosecutions are handled by the U.S. Attorneys’ offices in the ninety-four judicial districts. U.S. Attorneys are political appointees, chosen in practice by the Senators of the President’s party from the states in which they serve. Many are politically ambitious, and all are jealous of their independence from “Main Justice” in Washington. The Criminal Division of “Main Justice” (where I used to work) has about 400 prosecutors, compared with 4000 Assistant U.S. Attorneys.

But Main Justice asserts control on some issues. Prosecutions under the RICO (organized-crime) statute must be approved by the head of the Organized Crime Section, largely out of concern that aggressive use of that statute’s very sweeping provisions might lead the courts to strike it down. Today’s action requires AUSAs to get clearance on various aggressive tactics in corporate prosecutions, such as squeezing companies to waive attorney-client privilege and to stop paying legal bills for their employees.

So I propose the following solution to the crack/powder impasse: leave the mandatories where they are; decouple the guidelines from the mandatories so that crack isn’t punished much more severely than powder unless the mandatory sentences are invoked; and require clearance from the Narcotics Section of the Criminal Division in Washington for any charge leading to the 5-year mandatory sentence for crack where the cumulative quantity involved is less than 500 grams.

That would leave the 5-year mandatory available for use as part of crackdowns against flagrant and violent dealing, where the threat of “taking it Federal” is an extremely potent one. But it would eliminate the flagrant injustice of sending someone away for five years just for selling a little bit of rock. Perfect? No. But workable.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

9 thoughts on “The crack/powder disparity: a way out?”

  1. It still requires Main Justice to have political appointees who are willing to deny approval for mandatory minimums in crack cases between 5g and 500g.
    Now, it's possible that the political environment has moved since the '80s and '90s. Crime is not the national issues it once was; there are fewer Democrats who come from districts where "more money on treatment" is an issue; and a few Republican Senators and Congressmen are vaguely compassionate conservatives. You could imagine getting a coalition around people like Sam Brownback and … I don't know who from the D side; Ron Wyden? … to make the changes. If you need more Republicans, agree to a modest increase in powder sentences and you'll get Jeff Sessions on board.

  2. This is the kind of thing that makes even me say "Ok, you've covered your a*s, you can go now".
    This "solution" might reduce injustice- or it might not. Whether it would or not would continue to rest in the hands of Federal prosecutors who have demonstrated they have no sense of proportion or justice.
    Is there any case where a little nibbling at the extreme edge of a totally wrong policy eventually adds up to some kind of progress? I can't think of any offhand, but perhaps some other reader will have a more encyclopedic memory.

  3. Serial catowner:
    Has it occurred to you that when you start quoting George Bush approvingly there might be something just a teensy bit wrong with your thinking? Perhaps you, too, have an inadequate capacity for absorbing complexity and a consequent rage at those who present you with complicated and imperfect solutions to what you wrongly conceive as simple and easily soluble problems.

  4. How many are sentenced by the federal crack mandatory minimum vs. complementary crack mandatory sentences of the states?
    If the federal government doesn't fix the injustice "on paper," there is no model for the states to follow, where I assume the bulk of the injustice takes place.

  5. Is it naive of me to assume that this sort of policy should be applied to all drugs? What I mean is that instead of the present system we do as suggested in previous posts and heavily punish violent offenders using resources freed up by not busting 18 year olds trying to buy Bud Light. Are statistics showing time spent in jail for drug busts are higher than murder at all true (I wish I had the source)? Are people who sell drugs generally violent to begin with, or do they tend to be violent because that is what is needed to survive as a dealer?

  6. J:
    Fortunately, the 5-gram crack mandatory is one foolish Federal example the states have failed to follow.
    Brendan:
    Violence in the drug markets is mostly an artifact of illegality. Alcohol dealers shot one another in the 20s but don't today.

  7. Well, I guess at the very least I'm a very poor reader, because I just can't seem to find that example somene gave of a problem being solved by nibbling around the edges.
    Gosh, it shouldn't be so hard, because a lot of problems are solved by nibbling around the edges, when ordinary people just start disobeying the law.
    Washington state got rid of a lot of blue laws that way. People just ignored them and did what they pleased, and one year the legislature bit the bullet and repealed hundreds of laws they knew would never be enforced.
    As for the day when somebody from Justice takes the courtesy extended to white-collar criminals and shares it with black cocaine sellers- well that I gotta see.
    I just think the whole exercise misses the big picture. We put people in jail, destroying their families, depriving children of fathers, and if they're ever released, they now have no family to return to, a major factor in recidivism, and we do this because they're selling or using a substance almost identical to the pills we give pilots flying fully-armed fighter planes. I just don't think the basic dynamics will be changed much by requiring a career Justice official to review and approve requests to demand a mandatory minimum.
    But, who knows? Perhaps some reader has numbers that will prove my skepticism unjustified.

  8. Legalize it already. Seriously. If Bush is "either Captain Ahab or Captain Queeg with respect to Iraq," to what level of perverse insanity have the Drug War Generals descended?

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