This criminal justice solution was well-intentioned. It still failed.

Jul 7, 2021 by Jeremiah Mosteller

Americans for Prosperity believes that our criminal justice system should promote public safety, preserve human dignity, and provide equal justice for all under the law.

Accountability is an essential component of justice, but that accountability must be proportional based on the harm caused to a victim or the local community. For example, theft crimes are punished differently based on the value of the items stolen. This makes complete sense given the different level of harm imposed on the victim.

Differences in the sentences imposed for the same or substantially similar crimes that are not justified by public safety or the harm caused undermine trust and credibility in the law, our courts, and the justice system.

Such an unjustified disparity currently exists in federal law for the punishments imposed for crack and powder cocaine. How could a well-intentioned solution fail with such harmful consequences?

A mistaken bipartisan response

For more than three decades, a sentencing disparity has existed in federal law between two forms of the same drug — crack and powder cocaine.

This policy was a bipartisan response to the rise of crack cocaine use in communities across the country. Many in Congress hoped that it would not only reduce the use of this substance, but also counteract the increase of violence seen in many of the same communities where it was being used and distributed.

This 100:1 disparity meant that the distribution of only 5 grams of crack cocaine was subject to the same prison sentence as the distribution of 500 grams of powder cocaine by an otherwise similarly situated defendant.

Years of research, evidence, and experience have raised questions about the justifications for this disparity. We now know:

The use of crack and powder cocaine results in comparable “physiological and psychoactive effects” and are nearly chemically identical.
There are surely many negative health outcomes associated with abusing certain substances, and we must be vigilant as a country about working to reduce such use. But research has failed to show more negative health outcomes for users of crack cocaine when compared to other substances.
Contrary to previous assumptions, there is no difference in the violence associated with crack and powder cocaine use. In some studies, both forms of cocaine are associated with less violence than alcohol.
More than 40 states either never had or have ended their crack-powder sentencing disparities. Data on cocaine use and crime rates shows no apparent trend or difference among states that have a disparity and those that do not.

It is now clear that America reached an inaccurate conclusion about the need for more severe punishments for crack cocaine and that this disparity does nothing to advance our country’s public safety or public health goals.

In recent years, the Fair Sentencing Act and the First Step Act have reduced this disparity to 18:1. Such reforms have not resulted in higher crack cocaine use or recidivism. It is time to end this disparity outright given what we know now and its lack of contribution to achieving the intended goals.

The solution to this sentencing disparity

There are inherent differences in some drugs that justify Congress imposing more or less severe sentences when individuals violate federal law. This is particularly justified when such action can positively impact public safety or public health.

The disparity between crack and powder cocaine is not an example of such an instance.

The research shows that this sentencing disparity has done nothing to reduce recidivism, improve public safety, or reduce drug use — but it does disproportionately harm certain communities.

A recent analysis of a potential policy change to end this disparity shows that it could save American taxpayers up to $117 million and further reduce the federal prison population by another 500 individuals. Ending this disparity will be both smart on crime and soft on taxpayers.

Americans for Prosperity is committed to ending this arbitrary disparity given what we know about these drugs and the impact of this policy today.

Last week we submitted written testimony to the Senate Committee on the Judiciary urging them to end this unnecessary disparity between crack and powder cocaine sentences in our federal justice system:

“This hearing by the Senate Committee on the Judiciary reflects a continued commitment by our leaders in Congress to provide Americans with the maximum level of public safety in our communities and revise policies that are not helping us achieve that goal. At Americans for Prosperity, we look forward to partnering with Congress to end the unnecessary disparity between crack and powder cocaine sentences in our federal justice system given its lack of contribution to public safety or public health.”

Providing judges with more flexibility to consider the entirety of an individual’s criminal history and other factors when someone has been found guilty of violating the law will ensure more proportional punishment. It also guarantees that our precious taxpayer resources are focused on violent and property crimes that cause so much damage in our local communities.

To learn more about the research in this area and our position, read our brief overview document and our full testimony.