(Un)Fair Sentencing Act

On Thursday the Senate Judiciary Committee voted on the Fair Sentencing Act (S. 1789), introduced by Senator Richard Durbin (D-IL).  The bill addresses a 24-year old disparity in sentencing possessors of cocaine as powder and cocaine as crack.

Roots of the disparity reach back to 1986 when the Senate passed an Anti-Drug bill which mandated a minimum 5 year sentence for any person possessing 5 grams of crack cocaine, about the equivalent of 2 sugar cubes.  In contrast, people trafficking powder cocaine would have to be caught with 500 grams to receive the same 5 year mandatory minimum.  The result was a disparity in sentencing at a 100:1 rate, based on the amount in possession.

Individuals possessing 5 grams of crack cocaine tend to be users or low-level sellers who belong to minority communities.  Specifically, the drug is more likely to be used in African American communities.  Individuals with 500 grams of powder cocaine, in contrast, are likely to be white, high-level drug sellers and much more organized.

Such a stark disparity has contributed to a criminal justice system which fosters disproportionate punishments mostly affecting African American communities.  For example, although crack is used at a similar rate throughout all ethnicities, in 2007 African Americans represented 81% of those convicted for crack offenses.   Clearly the law does not accurately address the reality of crack usage.  What the current law does do is contribute to the country’s incredibly high incarceration rates and the disproportionate number of African American inmates.

The Fair Sentencing Act sought to fix the disparity by maintaining a 1:1 ratio for the drugs, each at the powder level; 5 years of prison for 500 grams of cocaine, no matter the form.  Instead, the Senate Judiciary committee passed the law amended at a 20:1 disparity by accepting an amendment offered by Sen. Sessions (R- AL).  Sen. Sessions’ justification of the disparity was that possession of crack cocaine is more likely to be accompanied by violence, even if it is not caused by using the drug itself.

Despite the bipartisanship which the amendment represents, Senator Sessions’ justification for a continued disparity ignores the number of needs within African American communities.  Decades of lack of access to basic needs like education, adequate employment and the political participation create communities without the supports which so many of us take for granted.  This legacy of disparate policies combined with a lack of access to basic needs directly increases the likelihood of violence in any area.

Maintaining such a disparaging penalty does not address such violence, but contributes again to the causes of it in the first place.  Disparity at any level in sentencing is unacceptable, and needs to be righted by law.

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