Racial Overtones in Cocaine Sentencing?

W A S H I N G T O N, Sept. 22, 2002 -- In the mid 1980s, crack was public enemy No. 1.

It first appeared in inner-city America. But after a barrage of news reports about a possible epidemic of brain-damaged crack babies, and how this relatively inexpensive drug drove its users to violence, all of America knew, or thought they knew, exactly what kind of menace crack was.

"People had the feeling that they were going to be shot or knifed by somebody high on crack cocaine on their way home," said Sen. Patrick Leahy, D-Vt.

With the war on drugs at a fever pitch, crack was viewed as the most serious threat. The federal government imposed mandatory sentences on those convicted of crack possession that were literally 100 times more severe than sentences imposed on those convicted of powder cocaine possession.

That doesn't mean getting caught using crack gets someone 100 times as long a sentence as someone caught with powder cocaine. It means it takes 100 times more powder cocaine to get the same penalty as crack.

The guidelines stipulate that a person convicted of possession of 5 grams of crack, equivalent to five packets of sugar, must serve at least five years. But powder cocaine, from which crack is made and without which crack wouldn't exist, has much shorter prison sentences related to its possession. Five grams of crack gets you five years in prison, but it takes 500 grams of powder cocaine to receive the same sentence.

"The sentences ought to be fair and just," said Sen. Jeff Sessions, R-Ala. "I don't think the current law can be defended."

‘We Ought to Fix It’

Sessions once thought the huge disparity was justified. He no longer does.

"Since we can't defend the current law we ought to fix it," said Sessions, a former prosecutor who co-sponsored the Drug Sentencing Reform Act of 2001. "We thought early on that if we worked at it hard, and that we could deter crack cocaine use in America and use these tough penalties to stop its spread, which was primarily in the African-American community."

Most crack arrests occur in African-American communities. Since more-affluent whites typically constitute users of powder cocaine, many feel the disparity in arrests and sentencing has racist overtones.

"I don't know what was in the minds of the legislators when they enacted the disparity between the handling of both powder and crack cocaine, but clearly the result has been a racial divide in this country," said Terry J. Hatter, a federal judge in Los Angeles. "Some 95 or more percent of young blacks and Latinos are the ones who find themselves being sentenced under the crack laws."

"That's one of the reasons why there's such an extraordinary number of African-Americans in prison for really doing the same kind of thing that some very affluent white areas might be doing, whether it's in Hollywood or New York or Washington or corporate boardrooms," Leahy said. "If you're doing the powder cocaine in a corporate boardroom, nothing is probably ever going to happen to you. If you're doing the crack cocaine in an inner city, you could spend years and years in jail."

‘I Had Never Been in Trouble’

Derrick Curry was a 19-year-old basketball whiz in Washington, D.C., when he got caught in a borrowed car with almost 500 grams of crack cocaine. He was convicted of conspiracy to sell crack cocaine.

"I received 19 years, seven months without parole," Curry said. "I had never been in trouble with the law, never had a speeding ticket. And, you know, [I was] doing all of the right things."

The judge who sentenced Curry reportedly did so with reluctance, a frustration Hatter shares.

"The only way you can go below the mandatory minimums is for the prosecutor to make a motion to do it," Hatter said. "I, as a lifetime appointed judge, appointed by the president of the United States, confirmed by the United States Senate, don't have that power, but a young prosecutor can."

Nearly 2 million Americans are in prison, according to the federal Bureau of Prisons. Roughly a quarter of those are there because of drug convictions.

According to the Department of Health and Human Services, about 66 percent of all of the people in this country who use crack cocaine are white or Hispanic. But 85 percent of those in federal prison on federal drug convictions on the sale or possession of crack are black. And they are serving much longer sentences than people who are arrested for the sale or possession of an equivalent amount of powder cocaine.

Bush Changes Position

The disparity of penalties was an issue not lost on President-elect George Bush two days before he took office.

"That ought to be addressed by making sure that powder cocaine and crack cocaine penalties are the same," Bush said on CNN. "I don't believe we ought to be discriminatory."

Leahy, who chairs the Senate Judiciary Committee, recently asked for a review of federal cocaine penalties.

Last May, the Sentencing Commission, an independent agency that advises Congress on sentencing matters, agreed that some change is necessary.

"We recommended quite a change in the amount that would trigger the mandatory minimum penalties for crack cocaine," said Judge Diane Murphy, a member of the commission. "And we also recommended that the penalties for powder cocaine stay the same. Our proposal would be a 20-to-1 ratio rather than 100-to-1. It brings it much closer to together, and we feel, [it is] a very responsible change."

But despite that recommendation, and bipartisan efforts by Leahy, Sessions and others in Congress to close the gap between crack and powder cocaine sentences, the Bush administration is now taking a hard-line stance against any lessening of the penalties for crack use, saying to do so would signal a retreat in the war on drugs.

The Justice Department and the Drug Enforcement Administration declined to participate in a recent Nightline discussion on this report.

‘Leave It All Alone’

Prosecutors often use the mandatory sentences to force someone like Derrick Curry to testify against his suppliers.

Curry refused to cooperate but was pardoned by then-President Clinton in January 2001 after serving almost nine years in prison. He now works with troubled teens.

"I tell them, if you're dealing with crack, you going to get sentenced to 100 times more than you will for powder, so just leave it all alone," Curry said. "I think some parts of [tough mandatory sentencing laws] are good. But I think there should be provisions put in there for, at the very least, first-time, nonviolent offenders. Don't take their whole life away from them for one mistake."

As for the assumptions about crack from the 1980s, it is now not generally believed to be more addictive than the powdered form of cocaine, the scourge of crack babies never really materialized and there is disagreement among experts over whether the use of crack makes people violent.

However, crack has, as predicted, devastated black communities, robbing them of young people, not just through its usage, but also through long, federally mandated prison sentences for relatively small amounts of the drug.