Crack vrs. Powder Cocaine: One Drug, Two Penalties

In years past, someone convicted of possessing one gram of crack would receive a sentence 100 times longer than someone possessing one gram of powder cocaine. What is the chemical difference between crack cocaine and powder cocaine that justified this disparity? Answer: There is no significant chemical difference—crack and powder cocaine are both forms of cocaine. The stark difference in federal sentencing laws for possession of the two forms of the same drug has more to do with media mythology and political pressure than with public safety and health. A 2010 federal law rectified some, though not all, of the sentencing disparities.

For more information on federal laws on cocaine possession, see Cocaine Possession.

Unlike the U.S. government, most states have not imposed different sentences for possession of the different forms of cocaine.

(For more information on cocaine possession laws by state, see Drug Possession Laws.)

What is Crack Cocaine?

Crack cocaine is made by dissolving powder cocaine (a derivative of coca leaves) and baking soda in boiling water and then cutting the resulting paste into small “rocks” after it dries. The rocks are usually sold in single doses to users who smoke them. Because of the inexpensive additive (baking soda), a rock of crack cocaine is cheaper than a similar “dose” of powder cocaine. But the two forms of the drug are chemically the same, and affect the user in the same physical and psychological ways. A person smoking crack cocaine (as compared to snorting or injecting powder cocaine) experiences a faster, more intense high simply because smoke in the lungs affects the brain more quickly than the other methods of ingestion.

Media hype

Crack cocaine first hit the national radar in 1986 but, contrary to media reports, it was not a new drug. Before 1986, federal sentencing laws treated possession of crack and powder cocaine the same. That year, national news outlets began reporting inflammatory anecdotes supposedly revealing a “crack epidemic.” The media mischaracterized crack as more potent, more addictive, and more likely to lead to violence than powder cocaine or other drugs. These dire reports multiplied, despite the lack of scientific evidence to support them. Not incidentally, this media feeding frenzy happened during the second Reagan administration, which had made law and order a major element of its agenda.

In an article in 1986, Newsweek quoted a drug expert as calling crack “the most addictive drug known to man.” Within four years, that magazine and most other news outlets, law enforcement agencies, and academics abandoned that view. But before the tide turned, Congress passed a draconian law that led to the imprisonment of thousands of mostly young African-American men for many years for simple possession of crack.

Political reaction

With the 1986 mid-term congressional elections looming, Congress reflexively grabbed onto the growing crack epidemic hysteria and reacted by holding hearings at which unscientific (and ultimately discredited) claims were made about the heightened dangers of crack and its insidious spread throughout urban communities. There was little discussion of the actual relative dangers of powder and crack cocaine. Instead, Congress took the largely anecdotal and sensational “reports” of crack’s supposed greater dangers and ran with them. The result was one of the most unjustified and unfair sentencing schemes ever created in the U.S.

Disparate Sentencing in the Anti-Drug Abuse Act of 1986

Congress’s passage of the Anti-Drug Abuse Act of 1986 created a five-year mandatory minimum sentence for possession of five grams (or just a few rocks) of crack cocaine. (21 U.S.C. § 841 (2006).) “Mandatory minimum” means just what it says: A person convicted of a first offense of possessing five grams of crack had to be sentenced to five years in federal prison. By contrast, under the 1986 Act a coke-snorting user had to be caught with 100 times that amount of powder cocaine (500 grams, or over a pound) in order to face a similar five-year mandatory minimum sentence. This 100-to-one ratio was not the product of reasoned analysis of the relative dangers of the two forms of the same drug; rather, Congress batted around various arbitrary ratios (including 20-to-one) and settled on the 100-to-one ratio during floor debate on the Act. As Representative Dan Lungren (who helped draft the Act) said, “We didn’t really have an evidentiary basis for it.” (156 Cong.Rec. H6202 (July 28, 1986).

Under the 1986 Act, a person caught holding a few small bags of crack rocks, even if for her own use, faced the same penalty as a major powder cocaine carrier.

Disproportionate impact on African-Americans

Almost immediately upon its passage, African-American defendants experienced the harsh crack cocaine sentences imposed by the 1986 Act. Crack cocaine’s lower price, ease of production, and manner of distribution (small quantities sold to individuals for personal use) was thought to have made it more accessible in poor, urban communities than powder cocaine. Young black men found themselves in the crosshairs of enforcement efforts aimed at halting the unproven “crack epidemic” the Act supposedly addressed.

It became clear that the Act’s overly harsh punishment disproportionately targeted a racial minority, which made many of its prior supporters question its legitimacy.

Second thoughts

Many of the very legislators who voted for passage of the 1986 Act expressed dismay that the vast majority of defendants charged with and convicted of crack cocaine possession were African-American males, while most defendants in powder cocaine possession cases were Caucasian or Latino. And the media (along with the general public) began to note the lack of credible scientific evidence justifying the vastly different treatment of the two forms of the same drug.

Federal courts, for the most part, rejected arguments by defendants charged with crack cocaine possession that the Act violated the 14th Amendment’s Equal Protection Clause because of the different treatment of the two forms of cocaine and the resulting disproportionate effect on African-American defendants. It became clear that the problem could only be addressed by Congress.

Congress took up and defeated a series of proposed laws designed to overhaul the 1986 Act in the years 1993 to 2009. In 2010, Congress at last revised the 1986 Act.

2010 Fair Sentencing Act

President Obama signed the Fair Sentencing Act of 2010, doing away with the five-year mandatory minimum for possession of five grams of crack cocaine, and increasing the amount of crack required to result in a mandatory sentencing for federal drug trafficking crimes. (21 U.S.C. § § 841, 844.) The 2010 Act changed the ratio of crack to powder cocaine (for purposes of imposing the same sentence for possession of each form of the drug) from 100-to-one to 18-to-one. So, the federal law still imposes a different and harsher sentence for crack cocaine possession than it does for powder cocaine possession, but the disparity is not nearly as great as under the 1986 Act.

See A Lawyer

Regardless of changes in the federal law, a charge of crack or powder cocaine is a very serious charge. If you face drug possession charges, you should see a lawyer immediately. Only an experienced criminal defense lawyer who is familiar with the law in your state (or, if the case is in federal court, an experienced federal practitioner) will be able to advise you as to the strength of the case against you and the availability of any defenses. And only a local lawyer who knows the prosecutors and judges in your courthouse can give you a realistic assessment on how the case is likely to proceed.

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