Cocaine: Crack and Powder Sentencing Disparities

Cocaine: Crack and Powder Sentencing Disparities

November 9, 2021
Cocaine: Crack and Powder Sentencing Disparities
Distinguishing Crack and Powder
deaths involving cocaine without opioid involvement
Cocaine
increased from 0.7 to 1.1.
Cocaine is a stimulant drug, usually distributed in a powder
form that can be snorted or injected after being dissolved in
Federal Cocaine Sentencing and History
water. It can also appear in a more solid, chunk form,
of the Disparity
known as cocaine base or crack, which can be smoked.
The Controlled Substances Act (CSA; enacted in 1970) is
Whether consumed in powder or crack form, cocaine
the legal framework through which the federal government
produces the same type of physiological and psychotropic
regulates certain drugs that are deemed to pose a risk of
effects; however, the route of administration affects the
abuse and dependence, including powder and crack cocaine
onset, duration, and intensity of these effects. The
(see CRS Report R45948, The Controlled Substances Act
maximum psychotropic effects take longer to reach when
(CSA): A Legal Overview for the 117th Congress). Some
snorting powder cocaine versus either injecting powder
violations of the CSA are criminal offenses that may result
cocaine or smoking crack cocaine, but the effects last
in large fines and long prison sentences. The CSA as
longer.
enacted did not distinguish between powder and crack
cocaine; however, the Anti-Drug Abuse Act of 1986
The Drug Enforcement Administration (DEA) notes that
amended the CSA to impose mandatory minimum
cocaine is easy to obtain in the United States, and its
sentences for certain trafficking-related offenses involving
availability is steady. The cocaine consumed in the United
cocaine. While these minimum sentences applied to both
States is generally produced in Colombia, and Colombian
powder and crack cocaine, the amount of each substance
transnational criminal organizations (TCOs) largely control
required to trigger the mandatory minimum varied by a
its production and supply. The Southwest border is the main
ratio of 100:1. For example, offenses involving 5 kilograms
entry point for cocaine flowing into the United States, and
of cocaine powder or 50 grams of crack carried a
Mexican TCOs control its transportation into and wholesale
mandatory 10-year sentence, and offenses involving 500
distribution within the United States. U.S. criminal groups
grams of cocaine powder or 5 grams of crack carried a
and street gangs largely control retail-level distribution of
mandatory 5-year sentence. Prior to the enactment of the
powder cocaine within the country as well as the production
Anti-Drug Abuse Act of 1986, offenses involving smaller
(conversion to crack) and distribution of crack cocaine.
or unspecified amounts of powder or crack cocaine were
also subject to criminal penalties, but did not carry a
Cocaine Use
mandatory minimum prison term. The Anti-Drug Abuse
Cocaine is a widely used illicit drug in the United States.
Act of 1988 subsequently established a 5-year mandatory
The 2020 National Survey on Drug Use and Health
minimum penalty for simple possession of crack cocaine.
(NSDUH) estimates that about 5.2 million people (about
1.9% of the 12-and-older population) used cocaine—either
Fair Sentencing Act of 2010 and First Step Act of
crack or powder cocaine—within the past year, and 657,000
2018
of these individuals (about 0.2% of the 12-and-older
The Fair Sentencing Act of 2010 (the Fair Sentencing Act)
population) used crack cocaine within the past year.
revised these penalties. It increased the threshold amount of
Persons aged 18-25 had the highest cocaine use, with an
crack cocaine necessary to trigger the mandatory minimum
estimated 1.8 million users (about 5.3% of that population).
penalties from 5 grams to 28 grams for the 5-year sentence
Further, NSDUH estimates there were about 1,800 new
and from 50 grams to 280 grams for the 10-year sentence.
cocaine users aged 12 and older each day in 2019 (the
These changes reduced the disparity between the thresholds
number that stop using each year is unknown), and
for powder and crack cocaine to a ratio of approximately
approximately 1.0 million individuals suffered from a
18:1. The act also eliminated the 5-year mandatory
cocaine use disorder that year.
minimum for simple possession of crack cocaine. There
remains the 18:1 disparity in the threshold amount of
Drug overdose deaths in the United States are of continuing
powder cocaine and crack cocaine that triggers the
concern to lawmakers. In recent years, there has been an
mandatory minimum penalties for trafficking-related
increase in the rate of drug overdose deaths involving
offenses. The Fair Sentencing Act applied to future cases
cocaine. According to the National Center for Health
and cases that were pending on the date of enactment, but
Statistics, there were 15,883 drug overdose deaths
did not apply to cases in which a sentence had already been
involving cocaine in 2019, and of these deaths, 75.5% also
imposed. The First Step Act of 2018 made the Fair
involved an opioid. The rate of drug overdose deaths
Sentencing Act’s changes to crack sentences retroactive and
involving both cocaine and opioids increased from 0.7 (per
permitted those convicted and sentenced prior to passage of
100,000) in 2009 to 3.8 in 2019, while the rate of overdose
the Fair Sentencing Act to seek resentencing. According to
the U.S. Sentencing Commission (USSC), there have been
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Cocaine: Crack and Powder Sentencing Disparities
3,705 cases in which the court granted a motion for a
Of the powder cocaine trafficking offenders sentenced,
sentence reduction due to Section 404 of the First Step Act.
64.4% were Hispanic, 27.3% were Black, 7.0% were
White, and 1.3% were other races/ethnicities. The average
Federal Sentencing Guidelines
sentence for these offenders was 66 months, and sentences
The USSC promulgates federal sentencing guidelines (the
were enhanced for possessing a weapon in 19.6% of cases.
Guidelines) that judges consult when sentencing federal
offenders. The Guidelines originally were binding on
Of the crack cocaine trafficking offenders sentenced, 77.1%
federal courts: a judge had discretion to sentence a
were Black, 15.9% were Hispanic, 6.3% were White, and
defendant, but only within the sentencing range that the
0.7% were other races/ethnicities. The average sentence for
Guidelines provided. In the 2005 case United States v.
these offenders was 74 months, and sentences were
Booker, the Supreme Court held that the Guidelines are
enhanced for possessing a weapon in 39.3% of cases.
advisory and cannot mandate a certain sentence; however, a
federal court must consider them (as one of a number of
Policymakers had justified the sentencing disparity by
sentencing factors) in determining what sentence to impose
stating that violent crime was associated with crack cocaine
within statutory parameters.
more than powder cocaine. The USSC, in a 1995 report to
Congress entitled Cocaine and Federal Sentencing Policy
The Guidelines originally reflected the statutory differential
(one of several USSC reports on federal cocaine sentencing
treatment of crack and powder cocaine offenders. However,
policy), noted that violent crime associated with crack
in 2007 the USSC revised the Guidelines to eliminate the
cocaine is directly related to the marketing and distribution
100:1 ratio. The USSC opted to make these amendments
of crack—specifically, attempts to consolidate turf and take
apply retroactively, thus allowing eligible crack cocaine
control of drug distribution in urban areas—and not users of
offenders who were sentenced prior to November 1, 2007,
crack cocaine. The USSC stated that while crack and
to petition a federal judge to reduce their sentences. That
powder cocaine users may commit crimes—such as selling
said, the USSC did not (and could not) change the statutory
drugs—to support their drug habits, these users generally
penalties in effect at the time an offender was sentenced.
are not committing large numbers of violent crimes to
Because Congress did not make the Fair Sentencing Act
support their habits.
retroactive, offenders sentenced prior to its enactment
remained subject to the mandatory minimums then in effect
Going Forward: Considerations for
and could not have their sentences reduced below those
Congress
minimums, even if recommended under the Guidelines.
There are a number of options policymakers may consider
in addressing federal cocaine sentencing. Given the racial
Federal Cocaine Trafficking Offenses
differences in offenders convicted of crack and powder
Generally, in enforcing federal drug control laws the
cocaine trafficking offenses, policymakers may consider
Department of Justice focuses its resources on investigating
how the former and current sentencing disparities between
and prosecuting drug traffickers over arresting individual
crack and powder cocaine may contribute to racial
drug users. Federal drug trafficking convictions reflect
inequality in the criminal justice system or whether the
these priorities. In FY2020, of the 16,501 federal drug cases
differences are justified, and may consider whether to alter
reported to the USSC, 16,287 (98.7%) involved drug
or eliminate the sentencing disparity. Policymakers may
trafficking. Of these drug trafficking cases, 16.6% involved
also wish to consider expanding resentencing opportunities
powder cocaine and 7.5% involved crack cocaine (see
for offenders convicted prior to the sentencing changes
Figure 1).
discussed above who are not entitled to retroactive
resentencing under the First Step Act (such as the offender
Figure 1. Federal Cocaine Trafficking Convictions,
in the recent Supreme Court case Terry v. United States).
FY2020
For legal discussion of retroactivity and federal cocaine
sentencing, see CRS Legal Sidebar LSB10611, Crack
Cocaine Offenses and the First Step Act of 2018: Overview
and Implications of Terry v. United States.
In the 117th Congress, there are several bills that would
address the powder and crack cocaine sentencing disparity.
The Eliminating a Quantifiably Unjust Application of the
Law Act (EQUAL Act; S. 79; H.R. 1693, as passed by the
House on September 28, 2021) would eliminate the
sentencing disparity both going forward and retroactively.
The Equal Enforcement of Cocaine Laws Act (S. 2156) also
would eliminate the disparity, but would not apply the
change retroactively.

Source: CRS presentation of data from U.S. Sentencing Commission,
Lisa N. Sacco, Analyst in Illicit Drugs and Crime Policy
Quick Facts: Powder Cocaine Trafficking Offenses, June 2021; and U.S.
Kristin Finklea, Specialist in Domestic Security
Sentencing Commission, Quick Facts: Crack Cocaine Trafficking Offenses,
June 2021.
IF11965
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Cocaine: Crack and Powder Sentencing Disparities

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