Proposed Amendment to Treatment of Crack Cocaine Offenses in Federal Criminal Prosecutions

The long awaited amendment to the United States Code removing the disparity between cocaine and crack cocaine offenses has finally been proposed. For decades crack cocaine offenses have been treated significantly harsher in the federal system than identical offenses involving only powder cocaine. The sentencing guidelines, until recently, resulted in a 100 to 1 disparity when it came to sentences handed down for those offenses. In other words, an individual involved in an crack cocaine offense involving 1 gram would be treated the same as an individual involved in a powder cocaine offense involving 100 grams. The laws made this provision even though the substances are all but identical and crack cocaine has not been scientifically proven to be inherently more addictive or dangerous.

The unequal treatment of powder vs. crack has also resulted in a concern that the laws themselves had a racially disparate effect on African Americans. Crack cocaine is much more common and prevalent in areas with higher African American populations and thus a larger percentage of that population has been subjected to increasingly longer sentences as a result of the disparity. According to the United States Sentencing Commission's 2007 report, although African Americans comprise only 27 percent of federal cocaine powder offenders, they comprise a staggering 81.8 percent of the federal crack cocaine offenders.

According to a memorandum released by the Administrative Office of the United States Courts, on Wednesday, July 29th, the United States House of Representatives Judiciary Committee approved H.R. 3245 entitled, "Fairness in Cocaine Sentencing Act of 2009" on a party-line vote of 16-9. The proposed legislation would completely eliminate all references to the crack form of cocaine in the federal criminal code. In effect, crack cocaine would be treated identical to powder cocaine. An example of the result if the legislation would pass would be that an individual charged with a crack cocaine drug offense involving 550 grams of crack cocaine would face a potential sentence of 5 - 40 years imprisonment as opposed to 10 - life which would have previously been required for merely 50 grams of crack cocaine. The proposed legislation is an incredible step in the right direction and would go a long way in minimizing the sentencing disparity that has for too long had a racially disparate impact in the federal criminal "justice" system.

However, the proposed legislation is just that; proposed. It will be some time before anything can reasonably be expected to come to fruition. According to the Administrative Office of the United States Courts memorandum, "the next step for this legislation would be action by the full House of Representatives" which would not occur before, at the earliest, September. It is also unclear whether the proposed legislation would also have any retroactively provisions allowing it to apply to individuals that have already been sentenced and are serving considerably longer sentences than they otherwise would be under the proposed amendments. More information can be found online at the Families Against Mandatory Minimums website. Interested individuals are encouraged to contact their representatives in both the House and Senate in support of the proposed legislation.