Today the U.S. Senate Committee on the Judiciary held a hearing on the EQUAL Act, which would eliminate the disparity between the respective quantity thresholds of powder cocaine and crack cocaine necessary to trigger a mandatory minimum sentence under federal drug trafficking laws. (Technically, the statute refers to “cocaine base,” but for practical purposes, that means crack cocaine.) The powder cocaine trafficking threshold is five kilograms, and the crack threshold is 280 grams. So, the current ratio is roughly 18:1.
The “crack-powder disparity,” as it has come to be known, has its origins in the Anti-Drug Abuse Act of 1986, which established a 100:1 ratio between powder and crack cocaine. However, in 2010, Congress passed the Fair Sentencing Act, which maintained the powder cocaine trafficking quantity threshold but increased the crack quantity threshold, thus reducing the disparity to the current ratio.
The crack-powder disparity has been criticized on several grounds. First, critics argue the disparity is the result of an “irrational” and “frenzied” Congress that was “moved to action based on an unconscious racial animus” and overblown media reports about the horrors of crack cocaine. Second, they argue the disparity is unjustified because crack and powder cocaine are pharmacologically identical.
Third, some critics charge that the disparity is evidence of racial discrimination in federal sentencing. Among cocaine users, crack users are statistically more likely to be Black, while powder users are statistically more likely to be white. Thus, the argument goes, the crack-powder disparity generates longer prison sentences for Black defendants than white defendants, even for trafficking offenses related to equivalent quantities of cocaine. Lastly, they argue that severe mandatory minimums for crack trafficking have failed to reduce crack abuse or crack-related crime.
Defenders of crack mandatory minimums generally, and the crack-powder disparity specifically, reject each of these claims. First, they reject the narrative that crack mandatory minimums have racist origins–or were motivated by unconscious racial animus–pointing out that Black community leaders demanded congressional action on the crack epidemic, and that the Congressional Black Caucus supported the Anti-Drug Abuse Act.
They also argue that while crack and powder might be pharmacologically identical, crack’s more devastating impact on minority communities warranted harsher penalties. Finally, they argue that mandatory minimums have actually benefited those communities by helping end the crack epidemic.
In written testimony on behalf of the Niskanen Center in support of the EQUAL Act, Niskanen Center senior fellow Dr. Michael Javen Fortner sets the record straight on these claims. As assistant professor of political science at the City University of New York’s Graduate Center, Dr. Fortner studies the development of crime policies and their consequences. The author of Black Silent Majority: The Rockefeller Drug Laws and the Politics of Punishment, Dr. Fortner is uniquely suited to provide commentary on this issue.
Dr. Fortner’s testimony shows that defenders of the crack-powder disparity are correct that the Anti-Drug Abuse Act was not the result of unconscious racial animus. Rather, it was a deliberate response to an enormously serious problem that uniquely affected Blackcommunities, and for which Black leaders demanded a serious policy response.
However, Dr. Fortner notes that while progressive narratives about the origins of the crack-powder disparity are more myth than reality, so are narratives by the law’s apologists about its impacts. As Dr. Fortner notes, the law has failed to reduce drug abuse or drug-related crime, even as it has driven up rates of incarceration.
Dr. Fortner concludes that crack mandatory minimums have done more to imprison Black Americans than to liberate their communities from the damage of drug addiction and the violence of drug trafficking, and urges Congress to pass the EQUAL Act. You can read Dr. Fortner’s testimony here.