Reform of Drug Sentencing Inequities Could Come in 2010

By A. Patrick Roberts, Esq.

For more than 20 years, federal law has imposed much harsher penalties on those convicted of crimes involving crack cocaine than those convicted of similar crimes involving powdered cocaine. Currently, it takes 100 times more powdered cocaine than crack cocaine to trigger the same mandatory minimum sentences.

For example, possession of five grams of crack cocaine carries a five-year mandatory minimum sentence. To receive the same five-year mandatory minimum sentence for powdered cocaine possession, an individual must have 500 grams in his or her possession. Likewise, while there is a 10-year mandatory minimum sentence imposed for possession of 50 grams of crack cocaine, a person would have to have 5000 grams of powdered cocaine in their possession to receive the same 10-year sentence.

In recent years, the US Sentencing Commission, the Department of Justice, the White House and civil rights groups all have called for congressional action to fix this disparity. But despite several attempts by Congress to change the law, the sentencing disparity continues to exist.

Two New Bills Up For Consideration

Last October, Sen. Richard Durbin (D-Ill.) introduced the Fair Sentencing Act of 2009 (S. 1789). This bill aims to equalize sentencing between crack cocaine and powdered cocaine convictions by decreasing the mandatory minimum sentences for crack cocaine convictions to those currently imposed for powdered cocaine convictions. The bill also would eliminate the five year mandatory minimum sentence for simple crack cocaine possession; crack cocaine is currently the only drug to carry any mandatory sentence for simple possession.

A similar bill was introduced in the House of Representatives last July. The Fairness in Cocaine Sentencing Act of 2009 (H.R. 3245) passed committee vote at the end of July, but then was pushed to the back burner as the health care reform debate heated up.

Current Sentencing Laws Based on Misconceptions

The current drug sentencing laws date back to the passage of the Anti-Drug Abuse Acts in the late 1980s. There was significant media attention on the national drug problem in that era, particularly on the epidemic of crack cocaine use and resulting violence in the inner cities. The Anti-Drug Abuse Acts were supposed to address this problem by increasing the penalties for drug crimes and targeting high-ranking members in the drug trade. Instead, the law resulted in much harsher penalties that targeted low-level offenders, particularly African-American males.

The penalties for crack cocaine offenses were made much more stringent than those for the powdered version based on several misconceptions about the differences between the two forms of the drug. These misconceptions included the belief that crack cocaine was a much more addictive drug than powdered cocaine and that those using crack cocaine were prone to more violent behavior.

However, later medical and scientific research has proved both of these beliefs to be untrue. There is no difference in the physiological and psychotropic effects of either drug - they have been found to be pharmacologically the same and to have the same effects on brain chemistry after ingestion.

Thus, all of the justifications that existed in the late 1980s to impose different sentencing structures based on which form of cocaine was involved in the crime have lost their merit, leaving no true reason for the disparity other than the inability of Congress to take effective action to change it.

Past Reform Efforts Have Fallen Short

Since 2001, Congress has made repeated attempts to reduce or eliminate the sentencing disparity between cocaine crimes. That year, the Drug Sentencing Reform Act was introduced. If passed, the law would have increased the amount of crack cocaine needed to trigger the mandatory minimum five-year sentence from 5 grams to 20 grams.

In 2007, several more bills were introduced to address the sentencing disparity. One bill would have raised the trigger amount of crack cocaine from 5 grams to 25 grams for a mandatory five year minimum sentence. A second bill sought to eliminate the disparity altogether by raising the trigger amounts of crack cocaine for any mandatory minimum sentence to the same amounts required for powdered cocaine. None of these efforts, however, were successful.

Nevertheless, many commentators believe that 2010 may be the year that Congress actually manages to pass a bill eliminating the sentencing disparity. It appears that the bill has garnered enough support on both sides of the aisle, across all branches of the federal government and from the public to finally become a reality instead of a campaign promise.

The financial pressures currently faced by the federal government due to the poor economy and growing national deficit also may be a contributing factor tipping the scales in favor of changing the sentencing laws. At least half of all federal inmates are serving time for drug offenses. Of those serving time for crack cocaine offenses, more than 60 percent are low-level offenders. By changing the federal sentencing laws, it is possible that future low-level offenders will receive probation or shorter prison terms than currently imposed, which means fewer federal tax dollars will have to be spent on their incarceration.

However, even though there has developed a strong consensus that these laws need to be changed, there is still debate over what form this change should take. While the Fair Sentencing Act seeks to lower the penalties for crack cocaine offenses, others believe that a more appropriate way to address the disparity is by increasing the penalties for powdered cocaine.

There also is debate over whether the change in sentencing should be made retroactive and, if so, how far back it should apply. Those in opposition to any retroactivity are concerned that it will create a logistics nightmare for the court system and Justice Department to process the anticipated flood of requests.


US sentencing laws for crack cocaine and powdered cocaine offenses are patently unfair. The rationales relied upon by Congress at the time these laws were passed have been proven to be meritless, and the laws have resulted in unequal treatment of African-American offenders, who currently serve nearly as much time in prison on average for drug offenses as white offenders do for violent crimes.

Unfortunately, Congress is the only body that can change the law and end the sentencing disparity once and for all. Although past efforts have fallen short, many are optimistic that current efforts will succeed where past efforts have failed.

Attorney Patrick Roberts is a former prosecutor who defends persons accused of drug crimes in state and federal courts throughout North Carolina. To learn more about Mr. Roberts and his firm please visit

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North Carolina vs. M.W.
Charge: Charge: Robbery with A Dangerous Weapon (4 Counts), First Degree Burglary, Conspiracy to Commit Robbery with A Dangerous Weapon
Facing: 12 - 17 years in prison
Result: Dismissed

An incarcerated defendant accused our client of participating in the robbery of a group of youth at a party. We were able to raise doubt as to the credibility of this individual. In the end, the prosecutor dismissed these charges, citing a lack of evidence.