Decriminalizing Crack

The Senate just passed a bill drastically reducing the penalty for possessing crack cocaine. The bill would increase the amount of crack requiring a five-year mandatory minimum sentence from 5 grams to 28 grams. The bill was approved unanimously by the Senate Judiciary Committee and finally passed this week with a voice vote. According to Sen. Dick Durbin (D-IL) it is the first time since 1970 that Congress has repealed a mandatory minimum sentence.

There are many problems, of course, with treating drug use and drug possession as criminal offenses. As dangerous as drugs like crack are, criminalizing them doesn't do that much to keep people from using them, just as the prohibition of alcohol didn't do much to keep people from drinking. Instead, by driving drug use underground, it makes it difficult to treat drug addiction. Making the drug trade illegal alsodrives the price of drugs up. That leads to enormous amounts of drug-related crime, which may do more damage to poor communities than drug use itself, as well as to the creation of the massive drug cartels that are destroying countries like Afghanistan, Colombia, and now even Mexico. And the whole enterprise of drug enforcement costs the government a fortune.


But the Senate is not trying to legalize drug use, by any means. Senators have held off on even reducing the penalty for crack possession for more than a decade for fear of being portrayed as soft on drugs—or even of tacitly approving of their use. But they finally took action this week because the truth is that the penalties for possessing crack are way out of proportion. When crack emerged in the 80s it seemed so destructive to lawmakers they imposed harsh penalties for possessing even small amounts of the drug. But the sentencing guidelines made having crack a much worse crime than having cocaine in its powdered form. So much worse that you'd have to have 100 times of what is essentially the same drug to receive a mandatory sentence of five years. Probably a large part of the stigma associated with crack, of course, comes from the fact that unlike powdered cocaine its users are poor and often black. So the harsh penalty for crack possession fell primarily on poor, black communities.

The penalty for crack use is a major reason why our prisons are filled with people convicted of minor drug crimes. And it is a major reason why black men are imprisoned at around 8 times the rate of white men. Locking up so many black men for drug use—while richer, whites tend to go free—is not only unfair. It has also effectively disenfranchised huge numbers of American blacks. As Dan Froomkin points out, in many states convicted felons can't vote even after they have served their time. As a result, as Froomkin says, an incredible 13 percent of all black men are denied the vote.

The Senate's recent move doesn't make possessing crack the equivalent of cocaine in its powdered form. It simply reduces the amount of crack requiring a five-year sentence from 100 times the equivalent amount of powdered cocaine to 18 times the amount. That's in spite of the fact that, as Attorney General Eric Holder recently says, "There is no law enforcement or sentencing rational for the current disparity between crack and cocaine powder offenses." While the Senate bill does make our drug laws significantly fairer, as Jasmine Tyler of the Drug Policy Alliance says, by not eliminating the disparity entirely the Senate's bill shows just "how difficult it is to ensure racial justice, even in 2010."

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