Q&A: Creating different punishments for crack and powder cocaine never made sense and was unscientific, experts say

While we wait for the United States Senate to pass the Equal Act, effectively and finally eliminating the sentencing disparity between two forms of cocaine, U.S. Attorney Gen. Merrick Garland outlined additional policies for federal prosecutors to pursue equalizing charges, pleas, and sentencing in those drug cases.

“The Justice Department supports elimination of the crack-to-powder sentencing disparity and has testified before Congress in support of the Equal Act … which would remove that disparity,” the memo states, in part, noting that the disparity is unscientific and that sentences have led to racial disparities. From the 1986 Anti-Drug Abuse Act that created mandatory minimum sentences and established the 100-to-1 ratio that punished crack cocaine offenses more severely; to the 2010 Fair Sentencing Act that reduced that ratio to 18:1; to the retroactive sentence reductions in the 2018 First Step Act, for people initially convicted under the 1986 law, justice has been shamefully slow. Until the Senate passes the Equal Act, the Justice Department is applying this policy “with particular force in drug cases … where the mandatory minimum sentences based on drug type and quantity have resulted in disproportionately severe sentences for certain defendants and perceived and actual racial disparities in the criminal justice system.”

To discuss their own research and professional work in the area of drug policy and, specifically, the crack-versus-powder cocaine disparities, David Mares, Mark Osler and Doris Marie Provine took some time to talk about the significance of Garland’s latest instructions, the history of the anti-drug legislation that led to these racial disparities, and how we might possibly repair the harm done to the communities that suffered under these policies. Mares is a distinguished professor of political science at the University of California, San Diego and author of “Drug Wars and Coffeehouses: The Political Economy of the International Drug Trade” about drug policy around the world; Osler is a former federal prosecutor and current law professor at the University of St. Thomas in Minnesota, where he teaches about sentencing and clemency; and Provine is professor emeritus of justice and social inquiry in the School of Social Transformation at Arizona State University, and the author of “Unequal Under Law: Race and the War on Drugs.” (These interviews have been edited for length and clarity. .)

Q: What does Garland’s latest instruction do that hasn’t already been achieved through previous laws and amendments to sentencing guidelines? What is the significance of this recent memo?

Mares: I think it’s two-fold: first, the disparities have been reduced over time and this signals that the administration really wants Congress to go back and eliminate those differences and penalties; secondly, it does mean that federal prosecutors, going forward, have been asked not to charge people who’ve been apprehended with crack cocaine at those rates, sentenced for these differences.

Osler: In 1986, Congress established the ratio between crack and powder cocaine for sentencing purposes, 100 to 1. You’d be sentenced the same for 5 grams of crack as for 500 grams of powder cocaine and that had an incredible impact because 5 grams isn’t very much and the mandatory minimum for just possessing 5 grams was five years in prison. That led to a deep tragedy in our country in terms of driving racial disparities and incarceration in federal prisons with, primarily, Black men. There wasn’t much thought gone into establishing that ratio, but it was very hard to undo, as any criminal sentencing law is, and maintain. As far back as 1995, there was a movement of the (United States) Sentencing Commission to equalize it, to make it one-to-one, that, ultimately, was rejected. I brought a case in the Supreme Court, Spears v. United States (in 2008), where the court finally said that district court judges could categorically reject the 100-to-1 ratio. The Equal Act would have equalized the ratio of crack as the same for powder. Despite having widespread bipartisan support and having more than 60 senators supporting it, having passed the House, it didn’t cross the finish line. In that context, Merrick Garland issued instructions on charging that what prosecutors were to seek would be one-to-one sentencing for crack. Importantly, that doesn’t help people who are still in prison, only those people going forward. We’ll see how that’s applied by prosecutors on the ground.

Provine: Both the sentencing commission and Congress have taken some action to reduce the disparity, but they never got rid of it. This is a really long overdue move at the executive level to end any disparity in prosecution and charging. I wish it had happened a very long time ago. I wish Congress took responsibility for having messed things up in the first place, but it’s a positive move, in my opinion.

Q: Can you talk a bit about how this 1986 legislation resulted in these racial disparities harming Black and Latino communities?

Mares: Every so often, we classify a drug as “the worst.” There was crack, then we got into methamphetamines, then we opioids. As a society— because it’s not just our leaders doing this, it’s a public supporting leaders — we have this response to illicit psychoactive substances and we heap all kinds of blame on top of it. That blame then bleeds over onto the people who are caught up in it. To understand the disparities in the racial distribution of penalties with all illegal drugs, you could do a class analysis: the poor are more likely to get arrested for illegal drugs, they’re more likely to get a tougher sentence for illegal drugs. If you analyze gender, women who are caught are more likely to get a more punishing sentence. And, you can do it by race. So, in the ‘80s, when we had the issue of crack, we wound up imposing such severe disparities because we were in the middle of a need to get tough on crime and tough on drugs. Why is it that African Americans, in particular, get caught up in this move to incarcerate more and more people? You have to understand the sociology of crack and the sociology of policing. Crack was incredibly cheap compared to powder cocaine, so if you had less money and you wanted to use an illegal drug, crack was very attractive. That means that poor people are going to be more attracted to crack than to powder cocaine. Powder cocaine is very expensive in the ‘80s, meaning you had to have a good paying job to use powder cocaine. That’s the beginning of that difference in who uses it, but that’s not enough to understand the racial disparity. Part of what we know in the United States about policing, in terms of socioeconomic situations, is that you’re more likely to get caught for crack cocaine if you’re African American than you are if you’re Hispanic or white, even though Hispanics and whites make up more users than African Americans (according to information from the sentencing commission). We don’t have enough data on sales, but it’s unlikely that most drug dealers are African American, despite what we see in the movies. Because these are illegal drugs, people don’t tend to walk up to somebody they don’t know and ask to buy an illegal drug; they tend to buy from their friends, from people that they know, from people that they meet at work or who are in their social circles. It’s that disparity in policing that leads to the greater arrests of African Americans. Then, you draw the disparity in penalties on top of that, and that largely explains why it is that the jails fill up with African Americans.

Osler: It’s just really a failure. There was a lot of hysteria about crack and no one knew what to do about it. One thing that, politically, really mattered was the death of a basketball player, Len Bias (in 1986). He was a great player from the University of Maryland and he got drafted by the Boston Celtics. If you read The Washington Post, they cover the Maryland Terps as a home team and that means that everybody in Washington has been reading about Len Bias for three years, about this great basketball player and he ended up in Boston. There are two very powerful people in Boston at that time: Ted Kennedy, who was a senator from Massachusetts, and Tip O’Neill, the speaker of the House, who was representing Boston. Those two powerful politicians come back to D.C. and they’re dead set on doing something about crack because the day after Len Bias was drafted by the Celtics, he overdosed on cocaine. Because he was Black, people assumed that it must have been crack. It turns out that it most likely wasn’t. It probably was powder cocaine. He overdosed on cocaine, people assumed it was crack, and they were off to the races.

If you’re going to trace the whole thing, there is a white or Hispanic person bringing powder cocaine to the United States, distributing it throughout the United States, it comes to a city, distributed within that city and neighborhoods as powder cocaine, and distributed. Then, typically, it’s rocked up into crack by the person who’s about to go out and sell it. It’s the last person in the chain, the person who’s least culpable and most easily replaceable, that this was prioritizing — the person who’s holding crack and selling it. I was a federal prosecutor in the ‘90s and people brought me all kinds of 5 gram crack cases, they were easy to make. Then, that person was categorized as a kingpin. Once, in the sentencing of a crack case, the defense attorney said, “If you drive by that house, there’s someone else selling crack there already,” and I did. He was right, there was somebody else selling crack there already, so we’re getting nothing done in terms of solving any problem. We’re creating problems by incarcerating people who had very low-level involvement in this drug trade and then spending billions of dollars doing it.

Provine: At the time, I was at the federal judicial center studying and working with the federal courts. I learned about a number of resignations of senior judges and judges taking what they call “senior status” to avoid having their cases dictated to them, and they were avoiding crack cocaine sentencing. A lot of complaints were coming in to the federal sentencing commission. Where I first picked up on how there might be a real justice issue with these federal district judges, which are essentially the trial judges in the federal system, was they were complaining pretty loudly that almost every defendant they were sentencing these big sentences to, was a young, Black male and it made them very uncomfortable and made them think something was seriously wrong. So, I started looking into how that legislation was passed and looked at the testimony that Congress listened to in passing that law. That was really a bombshell for me because there was a lot from newspapers, especially in the archival evidence I had of what came in to Congress, and it was clearly very skewed, racially. “Inner city” language was used to describe crack transactions, and then some of the testimony was, ‘We need to protect our college kids and not do too much with marijuana, but crack, oh my God, this can infect young, white people,’ basically. It was clear that it was a sense of fear of what might happen to white middle-class and upper middle-class populations because of this epidemic in the Black underclass. There were terms like “rats involved with crack” and just incredible terminology, so this was a kind of racial construction and fit with previous drug war panics.

Q: Over the years, the U.S. Sentencing Commission has released reports seeking to amend its sentencing guidelines in these cases, debunking myths about crack versus powder cocaine, and calling for a repeal on the mandatory five-year minimum for simple possession of crack cocaine. What are the arguments for reducing, rather than outright eliminating, these sentencing disparities?

Mares: As an analyst, the only argument that makes sense to me is that it’s very difficult for Congress to say, “We were wrong, and we need to accept that we were wrong and get rid of this.” It’s easier to say that, “Well, we might have overreacted a bit, the threat’s not as great nowadays, we can reduce the sentence.” There are still groups in our society that are opposed to any reduction and that fear that if we eliminate the disparity, we’re actually encouraging crack cocaine, as well as other drugs, because we’ll be showing people that, over time, we’ll go easier on them if they violate drug laws. So, you’ve got Congress not wanting to say they were wrong, and there are very vocal groups who are opposed to eliminating these disparities, so the easiest thing to do is to reduce them. That’s why it was reduced from 100-to-1 to 18-to-1. It’s not that the sentencing commission or science says that crack cocaine is only 18 times as bad, not 100 times as bad. The claimed differences between the two versions of cocaine do not exist, so there’s no reason for a difference in punishment, but Congress still chose to show that “We’re still tough on crack cocaine. Crack is still very bad, that’s why we’ll go with 18 times. Maybe it’s not 100 times as bad, but it’s still 18 times.”

Osler: You can talk about a lot of things, but it’s hard not to see that as vestigial racism; that there’s a sense that crack is something that “scary Black men” are involved in. This is where, now, in the middle of an opioid crisis that has been handled in a very different way, all of these numbers (2.5, 18, 100), they’re just spit balling. They’re just made up. None of it is based on science or data, but this one is especially egregious because it drives this engine of disparity in our system.

Provine: You can think of the constituency for the sentencing commission as the federal district judges. They became convinced that this was way off and began advocating for reduction, but they didn’t get any help. They didn’t have strong advocates in Congress who were really pushing this. For most members of elected bodies, they don’t want to get labeled as soft on drugs. The sentencing commission was coming from a different perspective of these judges saying that this is, racially, way off base and that these sentences for these very young defendants just made them sick. That’s where they were, on the front lines of seeing this happen.

Q: What kinds of redress could you imagine for those who’ve been disproportionately harmed by these policies over the years?

Osler: The most immediate thing is to change their sentences. The people who are still in prison, who are on supervised release, it’s imperative that reforms are made retroactive. This is the thing that keeps happening over and over again. The Fair Sentencing Act, for example, changed 100-to-1 to 18-to-1, but it was only prospective, it didn’t free people who were in prison already. That didn’t happen until the First Step Act, under Trump, that those changes were made retroactive, which was decades later and you’ve got people who have been in prison that entire period of time. There’s no principle that supports not making these changes retroactive. Sure, it may take some time that a judge has to spend on the bench resentencing somebody, but are we really trading 45 minutes of the judge’s time to 10 years of someone in prison? That seems like an immoral trade off, if that’s the calculus. So, making things retroactive is the first thing. Now, you’ve got people who were over sentenced and did the time. I know some of them because I was their attorney. For those people, if there ever was a case for reparations, that would be it. People who were directly impacted by a law that was perceived, broadly incorrectly, and had racially disparate impact where the cost is measurable.

Provine: As I understand it, there are still plenty of people who got long sentences for essentially nonviolent crimes and are going through middle age in prison. They should be out. I think incarceration should be redefined as an opportunity for people to understand what drugs do and why people are in the shape that they’re in. I sometimes work with ex-prisoners who have figured some of these things out, pretty much on their own or with the help of their family or a few sympathetic people along the way, but it’s not systemic. I just look at incarceration as an opportunity to take a broad view of rehabilitation, which sometimes is going to be drug substitution; sometimes is going to be relapsing and dealing with that; and it’s going to be education, at a pretty sophisticated level, about drug abuse so that people understand more clearly how to fight their own addictive tendencies. The idea of thinking of people with addictive issues as a member of your family with an addictive issue, I think that would take us to a different place than where our rhetoric is now.