Federal sentences for crack cocaine crimes are grossly unfair. For almost two decades, many people have been fighting against a system in which a person with crack cocaine is punished 100 times more severely than a similarly situated offender who happens to have a powder version of this drug. Although there are a series of recent developments that show promise for remedying this gross disparity, I still wonder if the legislature or the courts will ever show the courage to do the right thing.
A bit of history first. Cocaine dealers have been prosecuted in the federal courts for many years. In the early and mid-1980’s, drug dealers and users discovered that by “freebasing” the drug, the user got a much more intense “high.” Many of us of a certain age remember that the amazingly funny Richard Pryor almost killed himself using this method. Later, the dealers took this method to the next level, resulting in a solid version of the drug which came out in cookie form. The dealers would have to crack off a piece from the cookie every time they wanted to sell some, hence the term “crack.” By the mid-1980’s, crack was taking over, and resulted in a lot more violent crime in the drug trade. The publicity came to its high point when college basketball sensation Len Bias died from an overdose of crack cocaine the dayy after the Boston Celtics made him their number one pick in the draft. Shortly thereafter, Congress enacted a series of mandatory minimum penalties for federal drug crimes, and among these laws were rules that punished crack cocaine violators 100 times more harshly than persons who were involved with a powder version of the crime.
When prosecutors began using these new penalties, it became clear that only black people were getting charged with crack cocaine penalties, while powder cocaine penalties were imposed on both black and white offenders. Myself and other lawyers began mounting challenges against these unfairly disparate laws. I remember going to a seminar when we were trying to figure out how to raise challenges, and we listened to a famous pharmacologist who gave us a lesson on the chemistry of cocaine and how cocaine acts on the human body. I asked the scientist how crack differs from powder cocaine when it affects the human body, and was amazed when he said there is no difference!
Time went on, we lawyers raised challenges, and the courts continually turned a deaf ear. In one case, the public defenders convinced the courts to dismiss the charges because the federal prosecutors refused to provide information about why the vast majority of crack cocaine prosecutions involved black people, but the Supreme Court ruled that the case should continue and the prosecutors did not have to explain this ridiculous diffference.
We now are finally seeing some progress. The United States Sentencing Commission has proposed rules to rectify this disparity. However, these changes won’t affect the basic problem of the mandatory minimum sentencing scheme enacted way back after basketball player Len Bias died. Sentencing judges have been occassionally trying to rectify the problem by using a “downward departure” or a “variance”. The Supreme Court recently heard arguments about this, and how it will turn out is anyone’s guess. No matter what happens, thousands of defendants and their families have had their lives wrecked by an unfair set of laws enacted in the midst of the media-created drug hysteria of the mid-1980’s. I cringe every time I remember trying to explain to the family of a young man how he was required to go to federal prison for ten years on his first offense just because he helped carry an ounce of crack cocaine from one place to another. I can only pray that this two decades of unfairness has not completely turned those clients and their families against our criminal justice system.