« Supervised sex offenders required to attend education meeting on Halloween night | Main | "On the Limits of Supremacy: Medical Marijuana and the States’ Overlooked Power to Legalize Federal Crime" »

October 29, 2009

Washington Post editorial argues against completely eliminating crack/powder sentencing disparity

In this new editorial, which is headlined "The right sentence: As Congress weighs the cocaine sentencing disparity, it should remember crack's dangers," the Washington Post comes out against equalizing the sentences for crack and powder cocaine.  Here is the heart of the Post's pitch:

The Justice Department has announced its support for reducing crack penalties to mirror exactly those for powder.  A bill recently introduced by Sen. Richard J. Durbin (D-Ill.) would codify this 1-to-1 ratio into law.  Supporters of such a move point to the racial disparities between arrests for crack and powder, and argue that anything less than parity would be viewed by African Americans as a decision to continue targeting black men for tougher sentences.  They also note that studies have shown that the addictive nature of crack has been significantly exaggerated and that no other drug carries with it different penalties depending on how it is consumed.

But appearances alone cannot justify the move contemplated by the Justice Department and the Durbin bill.  A 2007 report from the U.S. Sentencing Commission shows that smoking crack delivers a faster, more intense high than snorting powder and that this high is more short-lived, thus compelling most crack users to seek additional doses of the drug.  The differences in addiction rates between crack and powder are not enormous, but they are real, and the study also notes that crack users often experience faster rates of physical deterioration than do those who consume powder.  The report notes that roughly one-fourth of crack offenders are associated with violence, and that this rate exceeds that for powder cocaine offenders.  As in the 1980s, predominantly African American communities continue to bear the brunt of the crime and addiction brought on by this awful drug.

These facts suggest that there should be some difference in the penalties for crack and powder cocaine, but how much?  This is a difficult question to answer with precision, so perhaps the best solution would be to eliminate the mandatory minimums for both crack and powder and build into the sentencing guidelines tougher penalty ranges for crack that judges could apply on a case-by-case basis.

Like most efforts to assess a complex issue in a short space, this Post editorial is more confusing than compelling.  For starters, the federal sentencing guidelines already have much tougher penalty ranges for crack that judges must apply on a case-by-case basis after Booker.  Second, the fundamental problem with both crack and powder sentencing is an undue reliance on drug weights rather than offense role in setting sentencing ranges.  Third, given the apparent "success" of the recent retroactive reduction in crack sentences, it is a shame that the Post relies more on tired old debates than new real-world developments in assessing this important issue.

October 29, 2009 at 09:29 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Washington Post editorial argues against completely eliminating crack/powder sentencing disparity:


I do find the argument for using crack possession as a proxy for violence odd. If there is violence involved why not add a charge or prove it at sentencing to increase the sentence within the statutory range? Perhaps such proxy use made sense when the patterns weren't so clear. I've seen plenty of evidence that the violence epidemic of the late 80s early 90s had a lot more to do with lack of criminal organization rather than pure drug effects, but that wasn't understood at the time.

Posted by: Soronel Haetir | Oct 29, 2009 10:21:10 AM

Doug, you should see if you can write an op-ed.

Posted by: federalist | Oct 29, 2009 10:22:17 AM

Because I have my own soap-box here, federalist, I never feel the need to try to get into black-and-white (especially now that they are no longer read all over).

Posted by: Doug B. | Oct 29, 2009 11:49:24 AM

Doug --

"[G]iven the apparent 'success' of the recent retroactive reduction in crack sentences..."

I would be very interested in seeing evidence that the retroactive reduction in crack sentences has reduced the use of crack and the harmful effects thereof. If you have a source I could go to, please let me know. Thanks.

Posted by: Bill Otis | Oct 29, 2009 4:26:03 PM

I totally agree that crack possession as a proxy for violence is odd. Federal judges have plenty of discretion to increase the sentence where violence is present or if the defendant has a history of violence. This is done all the time under the 3553(e) factors.

Posted by: SheliaB | Oct 29, 2009 9:22:09 PM

Great Blog! Thanks so much for this useful information.
I hope you will contribute a lot to all your readers and gain more valuable information. Thanks!

Posted by: pandora jewelry | Dec 3, 2010 8:56:17 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB