Federal sentencing disparities between crack and powder cocaine

¶ … SENTENCING DISPARITIES BETWEEN CRACK COCAINE vs. POWDER COCAINE

After a decade of contentious debate regarding the federal sentencing disparities between crack cocaine and powder cocaine, a number of significant initiatives to reform current policy have recently emerged. These include legislation introduced in Congress and a series of hearings resulting in recommendations by the United States Sentencing Commission. This paper provides a comparative analysis of the sentencing disparities with regard to crack cocaine as compared to powder cocaine. It examines the development of federal legislation creating greater criminal penalties for crack cocaine than powder cocaine, and assesses recent developments, studies and research in an effort to resolve the sentencing disparities. Finally, it offers recommendations to resolve this sentencing issue for future legislation, law enforcement agencies and federal and local governments.

Introduction

In 1986, Congress responded to a national sense of urgency surrounding drugs, specifically crack cocaine, and enacted the Anti-Drug Abuse Act of 1986. The 1986 Act created the basic framework of statutory mandatory minimum penalties currently applicable to federal drug trafficking offenses. The 1986 Act also established the 100-to-1-drug quantity ratio between powder cocaine and crack cocaine offenses, ultimately triggering the ongoing debate over the federal sentencing policy for cocaine offenses. As a result of both the statutory and guideline 100-to-1 drug quantity differentiation between the two forms of cocaine, the sentencing guideline range for crack cocaine offenses based solely on drug quantity is three to over six times longer than powder cocaine offenses involving equivalent drug quantities, depending on the exact quantity of drug involved. In addition, the average sentence for crack cocaine offenses is 110 months, or almost 60% longer than the average sentence for powder cocaine offenses, or 74 months, in large part due to the effects of the 100-to-1 drug quantity ratio.

The disparity in the sentencing illustrates that Congress considered crack cocaine much more dangerous than powder cocaine and as a result, those who trafficked crack cocaine warranted significantly higher punishment. The establishment of the 100-to-1 drug quantity ratio was based on several factors. Research indicated that crack cocaine was an especially dangerous drug, and was more likely to result in chronic heavy, use. Crack cocaine was believed to be extremely addictive, its' distribution and use were highly associated with violence and other crime, and its' use caused devastating harms to children prenatally exposed to the drug. Furthermore, it was concluded that young people were particularly prone to crack cocaine use and the low cost per dose and ease of distribution and administration were leading to widespread use.

At the same time Congress was considering the 1986 Act, the sentencing guidelines authorized by the Sentencing Reform Act of 1984 were still being developed.

Congress had only a single method to differentiate penalties for the two forms of cocaine: mandatory minimum penalties. As a result, Congress provided substantially different trigger drug quantities for the mandatory five and ten-year penalties for trafficking powder cocaine and crack cocaine. The 100-to-1 drug quantity ratio was established based on a number of beliefs about the relative harmfulness of the two drugs and the relative prevalence of certain harmful conduct associated with their use and distribution.

Background of Cocaine

Crack cocaine became prevalent in the mid-1980s and received massive media attention due to its increasing growth and accessibility in the drug market. The explosive popularity of crack cocaine became associated with its low price, which for the first time made cocaine available to lower economic classes. The media presented it as a violence inducing, highly addictive drug, resulting with the rapid passage of federal sentencing legislation in 1986 and 1988 by Congress. This included mandatory sentencing laws based on the premise that crack cocaine was 50 times more addictive than powder cocaine. The result of the sentencing legislation was that while a conviction for the sale of 500 grams of powder cocaine triggers a 5-year mandatory sentence, only 5 grams of crack cocaine are required to trigger the same 5-year mandatory sentence. Similarly, while sale of 5,000 grams of powder leads to a 10-year sentence, only 50 grams of crack trigger the same 10-year sentence.

Cocaine is a naturally occurring substance that is derived from the leaves of plants indigenous to South America. Pharmacologically, cocaine is a potent and powerful stimulant. Powder cocaine is made from coca paste, which is derived from the leaves of the coca plant. Crack cocaine is simply made by taking powder cocaine and cooking it with baking soda and water until it forms a hard rocky substance. Crack cocaine is then broken into pieces and sold in small quantities. Over time, numerous studies have shown that the physiological and psychotropic effects of crack and powder are the same, and they are now widely acknowledged as pharmacologically identical. A 1996 study published in the Journal of the American Medical Association finds analogous effects on the body for both crack cocaine and powder cocaine.

Statement of the Problem

The disparity between crack cocaine and powder cocaine goes beyond the 100:1 quantity ratio and dangerous propensities. Crack is the only drug that carries a mandatory prison sentence for first offense possession. In 1988 Congress made the mere possession of crack cocaine to carry a federal minimum sentence. A person convicted in federal court of possession of 5 grams of crack will automatically receive a five-year prison term while a person convicted of possessing 5 grams of powder will receive a probation sentence. Furthermore, the maximum sentence for simple possession of any other drug is 1-year in prison.

Research indicates that even law enforcement agencies and others involved with enforcing crack penalties have found current federal law overly punitive and have asserted that it inappropriately targets a drug population that consists primarily of addicts who possess or sell crack to support their own habit.

In 2001 and 2002 there President Clinton launched a new effort to reconsider crack cocaine policies, but Congress did not implement resulting legislation. Some researchers have argued that the failure of Congress to amend the sentencing disparities between crack cocaine and powder cocaine have reflected a deeply embedded racist undertone to society's political, legal and law enforcement structure. Research indicates that studies of drug users report their main drug providers are sellers of the same racial or ethnic background as they are. However, in the year 2000, of all federal crack defendants, 84% were black.

Most criminal justice analysts argue that racial disparities in arrest and imprisonment relate to demographics. For example, crack is usually sold in small quantities in open-air markets, whereas powder is more expensive and is usually sold in larger quantities in private locations. Since minorities and low income persons are most likely to inhabit urban areas with prolific law enforcement efforts, they are at greater risk of arrest for crack cocaine possession than are white and higher income powder offenders.

Research indicates that upper-class neighborhoods where drug sales are more likely to occur indoors instead of the street sales of the urban neighborhoods that receive disproportionate attention from law enforcement.

Studies indicate that between the two cocaine drugs, the result can only be described as a race and class oriented drug policy. Since the two forms of cocaine are pharmacologically indistinguishable, it appears that by dictating harsher sentences for possession of crack than for possession of powder, the law is more severely punishing the poor, who purchase and use the more affordable form of cocaine. Additionally, the 100:1 quantity ratio in the federal system has been legally challenged as unconstitutional on the grounds that it denies equal protection or due process, and because the penalties constitute cruel and unusual punishment. However, courts have not yet responded positively to such a claim.

Impact of Disparity in Sentencing

At the heart of the debate surrounding cocaine sentencing lies the 100-to-1 quantity ratio between powder and crack cocaine. This quantity ratio leads to a penalty ratio for offenders involved with equivalent amounts of either form of crack cocaine. Depending on the exact quantity, the mandatory minimum penalties and sentencing guidelines prescribe prison terms for crack defendants that generally range from three to almost eight times longer than for defendants with equivalent amounts of powder cocaine. Federal sentences for drug trafficking are determined through the interaction of mandatory minimum statutes and the sentencing guidelines.

The base offense level is adjusted upward by a predetermined amount for drug offenses that involve death or serious bodily injury resulting from the use of the substance, the possession of a dangerous weapon, use of an aircraft-related skill in importing the substance, or the killing of a victim. The base offense level can be adjusted for additional aggravating or mitigating factors such as if a vulnerable or official victim was involved or a victim was restrained, for a defendant's role in the offense, for abuse of a position of trust, or use of a special skill. Other aggravating factors include the obstruction of justice, multiple counts of conviction, and for a defendant's acceptance of responsibility for the crime.

The criminal history category is increased if a defendant has a prior record, based on the number, seriousness, and recency of sentences for prior convictions, has committed the new offenses while under another criminal justice sentence, committed a crime of violence related to another offense, and receives a career offender enhancement that provides penalties at or near the statutory maximum for drug traffickers with two or more prior convictions (state or federal) for drug trafficking or crimes of violence. The judge must choose a sentence from within the guideline range unless the court identifies an aggravating or mitigating circumstance that was not adequately considered by the Sentencing Commission. In mandatory minimum drug cases, judges can depart only upon motion from the government stating that a defendant has provided substantial assistance in the investigation or prosecution of another person.

All guideline drug sentences are indirectly affected by the mandatory minimums. The base offense levels are set at guideline ranges slightly higher than the mandatory minimum levels to permit some downward adjustment for defendants who plead guilty or otherwise cooperate with authorities. Most of the specific offense characteristics and general adjustments increase the sentence length, as do all of the adjustments for criminal history. The result is that most drug defendants in federal court receive guideline sentences higher than the applicable statutory mandatory minimum penalty. In 79% of the 1993 crack cases and 71% of the powder cases, the minimum of the guideline range was higher than the applicable statutory mandatory minimum.

An exception to the mandatory minimum drug penalties was created by Congress in 1994 for certain first-time, non-violent, low-level drug offenders.

This exception allows qualified defendants to receive the full benefit of any mitigating guideline adjustments that they would otherwise be precluded from due to the mandatory minimum penalties. Only defendants whose guideline sentence is lower than the mandatory minimum level or who qualify for a downward departure actually benefit from the provision. In the first two months of its implementation, 27 powder cocaine and 13 crack defendants benefited from the provision. This provision became effective September 23, 1994.

As of February 3, 1995, the Sentencing Commission had received and entered into its database 96 cases in which the provision had clearly been applied.

Demographic Profile of Federal Cocaine Offenders

The demographic profile of cocaine offenders must be further examined to analyze any disparity in sentencing. Among crack cocaine cases, only 8.1% were non-U.S. citizens. This contrasts with the higher proportion of aliens for other drugs (powder cocaine 29.7%, heroin 63.0%, marijuana 31.8%, and methamphetamine 9.9%). Within a drug organization, alien status may be associated with the role of mule or courier and the crossing of a U.S. border. Furthermore, most federal drug defendants are male (89.2% of traffickers, 81.4% of possessors), regardless of the type of drug involved.

However, research indicates that crack cocaine trafficking defendants are generally younger, with nearly half (46.9%) less than 26 years old. Crack cocaine defendants are the only drug group with an average age less than 30 years. Approximately half (47.9%) of all drug defendants have not graduated from high school. The percentage of defendants not completing high school is highest among marijuana defendants (53.0%). Crack cocaine trafficking defendants have the lowest rates of college attendance or graduation.

Race is also an important factor that warrants close examination. In 1993, Whites account for 30.8% of all convicted federal drug offenders, Blacks 33.9%, and Hispanics 33.8%. Sentencing patterns for some drugs show high concentrations of a particular racial or ethnic group. Most strikingly, crack cocaine offenders are 88.3% Black. Conversely, methamphetamine offenders are 84.2% White. Powder cocaine cases involve sizable proportions of Whites (32.0%), Blacks (27.4%), and Hispanics (39.3%).

Among defendants convicted of simple possession, 58% of powder defendants were White, 26.7% were Black, and 15% were Hispanic. Among crack defendants, 10.3% were White, 84.5% were Black, and 5.2% were Hispanic.

Findings in a recent Bureau of Justice Statistics study, conducted by Douglas McDonald and Kenneth Carlson, suggest that between 1986 and 1990 both the rate and the average length of imprisonment for federal offenders increased for Blacks in comparison to Whites. The researchers concluded that this increase, based on legally relevant offense characteristics, was caused largely by the mandatory minimum penalties for drug offenses and more specifically by the 100-to-1 quantity ratio of powder cocaine to crack cocaine.

Significance of the Research

Unwarranted disparity is defined as different treatment of individual offenders who are similar in relevant ways, or similar treatment of individual offenders who differ in characteristics that are relevant to the purposes of sentencing. Membership in a particular demographic group is not relevant to the purposes of sentencing, and as long as the individuals in each group are treated fairly, average group differences simply reflect differences in the characteristics of the individuals who comprise each group. Research indicates that sometimes individuals are treated differently because of the racial, ethnic, or gender group to which they belong.

Discrimination may reflect intentional unconscious bias toward members of a group, or it may result from a distortion of rational judgment by unconscious stereotypes or fears about a group or greater empathy with persons more similar to oneself.

Whatever the cause, discrimination is generally considered the most onerous type of unwarranted disparity and sentencing reform was clearly designed to eliminate it. One of the racial groups most commonly affected by drug sentencing are Blacks.

The overwhelming majority of offenders subject to the heightened crack cocaine penalties are black, about 85% in 2000. This has contributed to a widely-held perception that the current penalty structure for federal cocaine offenses promotes unwarranted disparity based on race. In order to evaluate whether the crack cocaine penalties disproportionately impact blacks, data regarding the racial composition of the entire population of crack cocaine traffickers would be required. Although data regarding the racial composition of crack cocaine users are available, such data do not exist for crack cocaine traffickers.

The legislative history surrounding the 1986 Act indicates that one of Congress's primary concerns was to protect poor and minority neighborhoods that were most afflicted by crack cocaine trafficking and its associated secondary harms. The fact that those same communities and many of their representatives now seek change in the federal cocaine penalty structure suggests a critical re-examination of the current penalty structure may be warranted. Furthermore, to the extent that the preceding analysis has shown that the 100-to-1 drug quantity ratio results in unduly severe penalties for most crack cocaine offenders, the effects of that severity fall primarily upon black offenders.

Review of Related Literature

Concern over possible racial or ethnic discrimination in federal sentencing remains strong today, fifteen years after implementation of guidelines designed to eliminate it. No sentencing issue has received more attention from investigative journalists or scholarly researchers. Gender discrimination has received less attention but also has generated an interesting range of views.

Arguments that women properly should receive more lenient sentences based on their status as women has been criticized by advocates of formal neutrality, but defended by others who see women as often playing more mitigated roles in their offenses. Others have argued that gender differences should not be seen as representing excessive leniency for women but as excessive harshness for men, who are often subject to the same pressures and responsibilities as women.

Researchers have developed statistical methods that are widely accepted as means for inferring conscious or unconscious bias. The general approach is to examine a large number of cases and measure the influence of the legally relevant characteristics on the types and lengths of sentences imposed. Different studies yield different answers as to whether discrimination influences sentences at all and, if so, how much. These studies also disagree on which racial and ethnic groups are discriminated against and exactly where in the criminal justice process this discrimination occurs. Several problems have plagued much of the existing research into discrimination in federal sentencing. The lack of data is especially severe regarding circumstances that might justify departure from the guidelines.

Other problems with previous research include the complexity of the federal guidelines system and its interactions with mandatory minimum statutes. Because mandatory minimum penalties disproportionately apply to minority offenders, failure to correctly specify these complex legal interactions will lead to exaggerated race and ethnic effects. As a result, extant research on the effects of legal and extralegal factors, in the context of guidelines, may have produced biased estimates and reached erroneous conclusions.

A possible question for policy makers is whether the career offender guideline, especially as it applies to repeat drug traffickers, clearly promotes an important purpose of sentencing. Unlike repeat violent offenders, whose incapacitation may protect the public from additional crimes by the offender, criminologists and law enforcement officials have noted that retail-level drug traffickers are readily replaced by new drug sellers so long as the demand for a drug remains high. Incapacitating a low-level drug seller prevents little, if any, drug selling; the crime is simply committed by someone else.

Preliminary analysis of the recidivism rates of drug trafficking offenders sentenced under the career offender guideline based on prior drug convictions shows that their rates are much lower. The rate for offenders qualifying for the career criminal guideline based on one or more violent offenses is about 52%. But the rate for offenders qualifying only on the basis of prior drug offenses is only 27%. The recidivism rate for career offenders more closely resembles the rates for offenders in the lower criminal history categories in which they would be placed under the normal criminal history scoring rules.

Recommendations & Hypothesis

The federal criminal justice system must be both fair and perceived to be fair. One recommendation is that the federal cocaine sentencing policy be amended as follows. The five-year mandatory minimum threshold quantity for crack cocaine offenses should be increased to at least 25 grams, and the ten-year threshold quantity to at least 250 grams. The guidelines should provide direction for more appropriate sentencing enhancements within the guidelines' structure that target the most serious drug offenders for more severe penalties and the current mandatory minimum threshold quantities for powder cocaine offenses should be maintained.

These recommendations would result in guideline sentencing ranges, based solely on drug quantity, for crack cocaine offenses approximately two to four times as long as powder cocaine offenses involving equivalent drug quantities. This would decrease the average sentences for crack cocaine offenses and would increase the average sentences for powder cocaine offenses. Crack cocaine penalties could be accorded the same as those for other major drugs of abuse such as methamphetamine and heroin. Even though the pharmacological effects of heroin on the user are dramatically different than for crack cocaine, it can not be argued that one is worse than the other. Additionally, the association of heroin and crack cocaine with violence does not provide a clear answer as to how the two drugs should be penalized in relation to one another.

Furthermore, a number of sentencing enhancements could be added to the primary drug trafficking guideline to target more severe punishment on offenders who cause heightened harm.

The proposed sentencing enhancements could also apply across all drug types, including powder cocaine, instead of being limited to crack cocaine offenses. Such sentencing enhancements could turn on whether there was the involvement of a dangerous weapon, bodily injury resulting from violence, and repeat felony drug trafficking offenders.

These sentencing enhancements are more appropriate because offenses that involve those heightened harms are more serious, and the drug offenders who cause them are more culpable.

These recommendations would ensure fairness in drug sentencing and guarantee equal treatment under law, without regard to race, ethnicity, or gender. It is very problematic that reports of continuing racial, ethnic, and gender discrimination continue to appear in newspaper stories and in academic journals. Research indicates that these kinds of reports undermine public confidence in the federal courts, particularly among the minority groups most affected. Evidence of continuing sentencing disparities must be both accurate and informative concerning how and where in the criminal justice process disparities arise, and whether they are justified by differences in the seriousness of the offenses committed by the members of each group is of extreme importance to policy makers.

Most of the difference between the average sentences of Blacks, Whites, and Hispanics is an impact of the offense and offender characteristics that have been made relevant to sentencing by the guidelines and the mandatory minimum penalty statutes. Today's sentencing policies appear to have a greater adverse impact on Black offenders than did the factors taken into account by judges in the discretionary system in place immediately prior to guidelines implementation. All of the factors discussed above have come under extensive criticism during the past few years. Public officials, private citizens, criminal justice practitioners, researchers, and interest groups have all challenged the fairness and efficacy of the current approach to sentencing cocaine offenses.

Proposed Methodology

Without a doubt, cocaine should be sentenced severely, but the current penalty differential between powder and crack cocaine should be reduced. A sentence should be imposed commensurate with the dangers associated with a drug regardless of the quantity involved.

All street drugs in general cause great harm to individuals and should be punished accordingly. It has been acknowledged that some of these drugs have more attendant harms than others and that those who traffic more dangerous drugs should be sentenced more severely than those who traffic less dangerous drugs. For example, an individual selling cocaine near a school should be punished harsher than someone selling marijuana near a school. Although both should be punished, the more dangerous drug should carry stronger penalties.

Such a policy would hopefully discourage the trafficking of more serious drugs and to punish those who do more harm to society by distributing these drugs. Crack cocaine is more often associated with systemic crime, related to its marketing and distribution, and is easy to manufacture and use and relatively inexpensive. As a result, it is more widely available on the street and is accessible to the most vulnerable members society. Since crack is smoked rather than snorted, it produces more intense physiological and sychotropic effects than snorting powder cocaine. As a result, the crack user is more vulnerable to addiction than the typical powder user. The sentencing guidelines could implement a section that accords an accelerated addiction rate with severer punishment. Studies would first have to be conducted on this topic, which may be hard to measure accurately.

Some researchers have concluded that the five-gram trigger for crack cocaine is over inclusive because it reaches below the level of mid-level or serious traffickers who deserve the five-year statutory penalty. Five grams of crack cocaine is indicative of a retail or street-level dealer rather than a mid-level dealer. Accordingly, the research indicates that the five-gram trigger should be increased to better target mid-level dealers. For example, if a street-level dealer possesses a gun, is involved in violence or other aggravating conduct, uses juveniles, or is involved in unusually large quantities of drugs, a more severe sentence would be warranted. Both the guidelines and other laws provide for such enhancements.

Based solely on quantity, research suggests that an appropriate trigger for the five-year mandatory sentence for crack offenses should be higher than five grams. For powder cocaine, the information and data suggest that some decrease in the quantity trigger may be warranted. In addition, the ease with which powder cocaine is converted to crack cocaine also suggests that some increase in powder cocaine penalties may be appropriate. For these reasons, prior researchers have concluded that a more appropriate quantity trigger for the five-year mandatory sentence for powder cocaine would be less than 500 grams. Furthermore, this approach allows for a more refined and individualized sentencing.

For example, any cocaine trafficker who possesses or uses a firearm or other dangerous weapon during a drug crime ought to receive a substantially enhanced sentence. The other factors discussed above, such as a defendant's prior drug trafficking convictions or a defendant's role in the offense are all important in determining an appropriate drug sentence. The enhancements in the guidelines system can account for these and other important factors related to a defendant's criminal culpability and should be relied on to the greatest extent possible.

Proposed Data Collection

Since the federal government and state governments share a common interest in developing an effective drug control policy, researchers have posited that the cocaine sentencing policy should advance the government's role for the use of state and federal resources in targeting drug use and trafficking.

The federal government could achieve this in a way that allocates responsibility for prosecution, adjudication, sentencing, and imprisonment in such a way that these functions are carried out in the most efficient and effective manner. Sentencing policy plays an important role in the allocation of resources among federal, state, and local government entities. As a result, the federal sentencing policy must be designed in coordination with a larger national effort that recognizes and takes into account the appropriate allocation of drug enforcement and drug control efforts at all levels of government.

Additionally, federal sentencing policy should reflect federal priorities by targeting the most serious offenders in order to curb interstate and international drug trafficking and violent crime.

Though most of the overlapping jurisdiction between the state and federal governments in national crime control policy may be authorized by the Constitution, it does not necessarily follow that such overlapping jurisdiction is either the most effective or the most efficient use of the combined resources of the federal and state governments.

Prior research indicates that states have historically made a wide variety of choices about the sentencing of persons who are deemed low-level offenders or who are apprehended with street-level amounts of drugs. The choices made reflect traditional state responsibility for addressing public health, safety, and welfare issues related to addicts, street-level crime, and persons low in local distribution chains. States may be able to address these issues more economically and with more locally-focused penal and social goals than can be achieved by the federal government.

A federal cocaine policy.

Furthermore, critics argue that the 100-to-1quantity ratio is not consistent with the policy, goal, and mission of federal sentencing, to be effective, uniform, and just. 90% of the offenders convicted in federal court for crack cocaine distribution are African-American, the majority of crack cocaine users are white. As a result sentences appear to be harsher and more severe for racial minorities than others. The current penalty structure results in a perception of unfairness and inconsistency. Designing sentencing policy to properly focus federal resources on the most violent and dangerous offenders will also help alleviate concerns regarding prosecutorial and investigative sentencing manipulation.

The President, the Attorney General, the Congress, and the Office of National Drug Control Strategy all have repeatedly indicated that an effective drug control strategy requires a balanced approach of domestic and international law enforcement, interdiction, prevention, and treatment. The impact of policy changes on drug control resources must be considered seriously before making any substantial increase in drug sentences. Incarceration is expensive and there is a responsibility to establish fair sentencing standards that protect the public. In a prior proposal, Congress was proposed changes to the sentencing guidelines for cocaine offenses that would have equated base sentences for powder and crack offenders by adopting a 1:1 quantity ratio at the powder cocaine level with sentencing enhancements for violence and other harms disproportionately associated with crack cocaine.

Research Findings

The disparate impact arises from a penalty structure for two different forms of the same substance. A discussion of the nation's drug abuse problem and the impact of penalties on African-Americans and other people of color is often uncomfortable and elevates the profile of the issue as well as the political consequences. The current quantity-driven system of imposing penalties is simplistic and quite effective in filling prisons. Some researchers have argued that the federal government should focus its enforcement efforts more on street-level dealers or on major importers and traffickers of the drug trade. A follow up to this idea is that the federal government must focus resources on the major individuals in the drug trade and allow the state law enforcement agencies deal with street traffickers.

The current policy focuses law enforcement efforts on the lowest level of the drug distribution, or the street-level dealer. Research indicates that this method has no impact on drug reform. The prisons are still full of drug traffickers and addicts and drug abuse is a more intense and voluminous problem than it was when in 1986 when the mandatory minimum penalties were enacted based on the quantity of drugs involved in the offense.

Furthermore, increased penalties and sentences do not offer a higher degree of public safety. The current focus should be on long-term incarceration and the long-term results of it on our economy and continuing drug problem. Other researchers have questioned whether it makes sense to invest high amounts of money and federal resources to incarcerate someone involved in a street-level drug transaction with a low illegal profit. A stronger and more effective method to invest this money and resources may be to change the focus of statutory mandatory minimum penalties from quantities of drugs to consideration of the role of the perpetrator in the offense. A change such as this would target law enforcement efforts on the higher end of the drug trade.

Results

The disproportionate incarceration of Black Americans, Hispanic-Americans, Native Americans and others in the United States is an enormous crisis that must be addressed. Some individuals feel as though the human destruction from drugs has become so commonplace that in some communities many have lost hope. As a combative measure, the federal government currently spends $15 billion dollars each year on law enforcement, treatment and prevention programs in its so-called war on drugs. Despite these programs, the human costs of drugs are staggering.

Studies conducted on race disparity indicate that each day in the United States, 94 African-American children are arrested for drug offenses, 151 are arrested for crimes of violence, and 1,118 are victims of violent crimes. While African-American men comprise 6% of the total population, they represent 35% of drug arrests, 55% of drug convictions and 74% of those serving prison sentences for drug-related offenses. Additionally, almost 40% of those infected with HIV / AIDS are intravenous drug abusers.

Recommendations

Some recommendations for fighting the war on drugs have been to increase funding for drug prevention, treatment and education for at-risk communities. It has long been argued that federal resources should be focused to target and punish large-scale drug smugglers, suppliers and distributors. Furthermore, enhanced sentences for law enforcement personnel convicted of drug-related offenses should also be implemented. Faith-centered treatment programs and town hall meetings, workshops and educational forums could be organized to spread the drug eradication message to communities across the nation.

But the most important improvement would be to eliminate sentencing disparities and investigate allegations of involvement in drug trafficking by intelligence agencies. Although solutions to the crack cocaine epidemic destroying communities must be found, the inherent unfairness in the sentencing disparities for crack and powdered cocaine offenses cannot be justified. This unjustification can be illustrated through the statistics of the Office of National Drug Control Policy. According to this office's statistics, young Whites, ages 18-25, use crack cocaine at a higher percentage (3.2%) than young African-Americans (1.8%). However, the penalties and prosecutions for crack cocaine cases are disproportionately applied to minorities.

While the decision to change crack and powdered cocaine offenses in either federal or state court is typically discretionary, federal convictions for cocaine offenses carry mandatory minimum sentences. Minorities currently account for 96% of federal crack cocaine prosecutions and convictions. Under federal law, the ratio of powdered cocaine to crack cocaine is 100-to-1. This means that for sentencing purposes, 500 grams of powdered cocaine is the equivalent of five grams of crack cocaine.

For example, a White defendant selling 500 grams of powdered cocaine is likely to get one year in the federal system, while an African-American defendant selling five grams of crack cocaine likely will be prosecuted in federal court, and if convicted, will receive a mandatory minimum sentence of five years. Furthermore, African-Americans are now incarcerated at a rate nearly eight times to that of Whites. The disparate sentencing guidelines for crack and powdered cocaine must be equalized and legislation developed to eliminate selective prosecution of minorities in drug-related offenses Another method is to seek investigations of alleged links between American foreign policy and international drug smuggling operation

Conclusion

When Congress passed the mandatory minimum sentencing laws in the late 1980s, the plan was to get tough on crime, especially drug-related crimes. The plan was to alleviate the court system, imprison major drug operations and prevent repeat offenders from receiving extraordinarily light sentences. The resulting laws issued to combat the war on drugs have had little effect and consideration for their human consequences.

The mandatory minimum laws for crack cocaine and powder cocaine remove from the hands of judges and other court officials the ability to examine the individual circumstances of each case before sentencing. A judge's discretion can mean the difference between a young person going to jail and having his or her life irreparably damaged or being placed in a program that might have a chance to save a human being.

While judges cannot be caseworkers, they can look at the circumstances of a young offender's life to make rational and reasoned evaluations of someone's risk to society. This can be demonstrated though the example of a crack addicted mother who passes her habit to her infant. Instead of a mandatory sentence, this individual needs assistance to first overcome her addiction and educational and employment opportunities, so that she can support her child.

Mandatory minimum sentencing laws do not offer assistance in situations such as this. They unfairly punish African-American and Hispanic defendants as compared to whites who commit similar crimes. Nowhere is this more evident than in the examination of the disparate sentencing laws surrounding the possession or distribution of crack cocaine as compared to powder cocaine. In 1986 and 1988, Congress mandated harsher sentencing for crack cocaine distributors and users than for powder cocaine, despite the fact that they are simply different forms of the same illegal drug.

Under the current sentencing mandates passed by Congress, a young person convicted of trafficking in five grams of crack cocaine receives a five-year mandatory minimum penalty. A young person selling the same amount of powder cocaine would be charged with a misdemeanor offense punishable by a maximum of one year. It would take possession of 500 grams of powder cocaine to receive the same five-year mandatory sentence the defendant with 5 grams of crack receives. It has been argued countless times that this statutory 100 to 1 ratio of powder to crack has relegated a disproportionate number of black and Hispanic youth to long-term prison sentences that have stigmatized them for life.

Other recommendations by government officials to reduce the disparity to a 10 to 1 ratio is overall an improvement, but does not end the imbalance. The rationale to reduce the disparity to 10 to 1 is equally persuasive when applied to the question of eliminating any sentencing disparities between crack and powder cocaine. The violence associated with crack dealing has dropped over the past few years.

This indicates an almost even split between crack users and powder users, and the treatment programs for crack and powder users are similar, with similar success rates.

This disparity has led to selective prosecution of African-American and Hispanic young men within the federal courts. This is true even though crack cocaine use is more prevalent among young whites than among young blacks, according to the Office of National Drug Control Policy. In 1994, for example, a larger percentage (3.2%) of whites aged 18-25 used crack cocaine than did blacks in the same age group (1.8%). Additionally, in 1994, a larger percentage of whites in age groups 12-17, 18-25 and 26-34 used cocaine than did blacks in the same age (group). However, Blacks and Non-whites are sentenced for crack violations disproportionately.

The impact of the sentencing disparities is staggering. Currently African-American males make up 6% of the American population and only 15% of the drug-using population. Yet, they now represent 35% of drug arrests, 55% of drug convictions and 74% of those serving prison sentences for drug-related offenses. One in three black males between the ages of 20 and 29 is under criminal justice control. One in 15 is incarcerated. Ninety-four percent of the crack offenders in federal courts are African-American. It appears that in practice, the war on drugs has almost become synonymous with a war on black communities.

There have been previous attempts to remove the disparities between the sentencing for crack cocaine offenses and powder cocaine offenses. However, these attempts have not been successful as a result of a finding that there is no basis for the disparity and acknowledgment that blacks were more heavily impacted by the disparity than whites. Ironically, such recommendations were rejected by the same governmental bodies created specifically to ensure that the sentencing policy is fairly and equitably administered and protected.

Other researchers have offered ideas that instead of dismantling economic and educational opportunities for poor communities, target more resources toward programs that work to rebuild affected neighborhoods. Currently, the federal government spends $15 billion each year on law enforcement, treatment and prevention programs in its war on drugs. For example, an anti-drug initiative could potentially call for a $200 million allocation for drug courts to treat low-level or first-time non-violent drug offenders, especially youth. Drug court programs can demonstrate the important role these programs can play in helping young people solve drug-related problems.

The needs of youth who come into contact with both the juvenile justice and the criminal justice system must be addressed.

This assistance of young people through mentoring and educational programs at an early age is a critical component in crime prevention programs. Finally, prisoners must be treated for their drug addictions. Given the overwhelming rise in the number of drug offenders serving mandatory minimum sentences and the number of these prisoners who will be released from prison, treating prisoners for their drug addiction is in society's best interest.

A statute that increases penalties for serious offenders may impact the flow of drugs to local communities. Research and the previous sections of this paper indicates that this approach resolves the problem caused by the different penalty structures for powder and crack cocaine. Another problem is the potential for injustices caused by the present drug sentencing policies. Legislation addressing reform to remedy this disparity is no doubt a better option than to simply ignore it.