A drug user needs to possess 18 times as much powder cocaine to get the same sentence as a person caught with “cocaine base” under federal law — a provision commonly known as the crack/powder disparity because the most common form of base cocaine is crack. Yesterday, however, the Supreme Court held that the harsher sentences also apply to “coca paste” and “freebase” cocaine, which are chemically similar to crack.
As a matter of law, this was the correct decision. As Justice Sotomayor’s unanimous opinion explains, the words “cocaine base” mean cocaine in a certain chemical form, and crack, paste and freebase all fit within the meaning of these words. As a matter of policy, however, the crack/powder disparity is impossible to justify.
The disparity was created in 1986 to suppress widespread fear of a crack epidemic, but the practical effect of this and similar kinds of harsh drug sentences has been to fill state and federal prisons with non-violent offenders who pose little, if any, real threat to society. Indeed, many states are now looking for ways to stop filling their prisons with drug offenders in order to control costs and eliminate prison overcrowding; conditions in California had become so bad that the Supreme Court recently held that the state’s overcrowded prisons amount to unconstitutional cruel and unusual punishment.
Moreover, because African-American drug users tend are more likely to use crack, while white drug users tend to use powder cocaine, the practical effect of the disparity has been to fill the federal prison system with non-violent African-American offenders. Eighty to 90 percent of defendants convicted of crack offenses are black, while 70 percent of powder cocaine offenders are white or Hispanic. As one federal judge once put it, the disparity “makes the war on drugs look like a ‘war on minorities.’ “
As an added cruelty to the defendant in yesterday’s case, the crack/powder disparity used to be even harsher on crack offenders — a 100:1 ratio rather than the 18:1 ratio under current law. President Obama signed a law in 2010 which reduced future crack sentences, but it does not apply retroactively. As a result, thousands of small-time offenders are currently serving draconian sentences that Congress already decided are way too long.