BENJAMIN LONGNECKER—The recent passage of the First Step Act retroactively applies the Fair Sentencing Act of 2010, addressing a politically and legally-charged topic in criminal justice reform: the disparate sentencing of nonviolent drug offenders who use powder and crack cocaine. After Congress passed the Anti-Drug Abuse Act of 1986, a person had to possess 100 times more powder cocaine to receive the same mandatory minimum sentence as someone who used crack cocaine. The Congressional rationale—though unsubstantiated—was that crack cocaine was fifty times more addictive than powder cocaine; thus, crack should be treated differently. But more particularly, Congress intended to use harsh sentences to target serious drug traffickers.
The statute’s increased sanctions for crack cocaine had unintended effects. Instead of targeting serious drug traffickers, the statute was more often applied to low-level trackers—such as street dealers. In addition, these laws inequitably affected minority populations. Eighty percent of defendants serving crack-related sentences are black, despite the fact that white and hispanic users accounted for over sixty-five percent of total use. The average prison sentence for an offense involving crack cocaine was several years longer than a similar offense involving powder cocaine.
This racial disparity is especially alarming considering that modern science finds little difference between the effects of powder and crack cocaine on an individual. For the most part, these substances have substantially similar short-term and long-term effects, contrary to Congress’s reasoning. This apparent misconception is why the United States Sentencing Commission published a report in 1995 that recommended Congress amend the statute to eliminate this unjustified inconsistency. Despite this recommendation, Congress made no effort to rectify this sentencing disparity until the passage of the Fair Sentencing Act of 2010. This statute reduced the statutory penalties for crack cocaine offenses to an 18:1 crack-to-powder drug quantity ratio—compared to the original 100:1 ratio.
This was not necessarily considered a ‘win’ for those incarcerated citizens affected by the old unequal sentencing statutes. Though the United States government had, in effect, acknowledged the unjustifiable sentencing disparity, the Fair Sentencing Act of 2010 only applied prospectively. Those 2,600 inmates—ninety percent of whom are black—who would have been eligible for a modification of their sentence were left with no recourse.
However, in December 2018, the First Step Act was signed into law. This law was signed to primarily combat high recidivism rates and ease mandatory minimums for nonviolent drug offenders. In addition to these reforms, the Act also retroactively applied the Fair Sentencing Act of 2010, stating that a defendant may motion to reduce their sentence “as if [The Fair Sentencing Act of 2010] were in effect at the time the covered offense was committed.”
Though social justice advocates applauded this slow shift towards more justifiable treatment between crack and powder cocaine, an eighteen-to-one sentencing disparity remains somewhat arbitrary. Considering the original rationale for treating crack separate from powder cocaine is widely accepted as unsupported, an 18:1 ratio is unjustifiable. It is a step in the right direction, but advocates should continue to fight for a 1:1 ratio—the only ratio that adequately reflects the scientific differences between the substances and avoids any racially-discriminatory sentencing.
