Reduction in Crack-Powder Cocaine Sentencing Disparity Proposed by Clinton Administration

SENTENCING August 1997

In July, Attorney General Janet Reno and Drug Czar Barry McCaffrey recommended to the President that the 100 to 1 disparity between cocaine and crack possession be reduced to 10 to 1 for federal sentencing purposes. After reviewing the plan, President Clinton endorsed it and directed Reno and McCaffrey to seek congressional approval.

Reno and McCaffrey refrained from calling for the elimination of the disparity altogether. The U.S. Sentencing Commission, in a similar move in April, modified its 1995 call for the elimination of the disparity, recommended that the trigger for 5-year mandatory sentencing be reset in a range of 125-375 grams of powder cocaine and 25-75 grams of crack cocaine (See "Sentencing Commission Proposes Reduction In Disparity in Powder & Crack Cocaine Sentencing," NewsBriefs, May-June 1997). Under current law, the five-year mandatory minimum sentence for trafficking is triggered by a quantity of 500 grams of cocaine or 5 grams of crack. Reno and McCaffrey's proposal reduces the disparity to 250 grams of cocaine or 25 grams of crack.

McCaffrey said that he wanted to completely eliminate the disparity, but that arguments from law enforcement officials, including Reno, convinced him that crack ought to be punished more severely. "From a drug-abuse perspective, 1 to 1 made more sense to me," he said. In their recommendation Reno and McCaffrey acknowledged one of the most important issues surrounding the disparity: "[It] has become an important symbol of racial injustice in our criminal justice system ... We cannot turn a blind eye to the corrosive effect this has had on respect for the law in certain communities and on the effective administration of justice."

"We want the Senate and House to have a chance to listen to the rational arguments connected with this approach," General McCaffrey said. "That's our position and we're going to try to work with Congress now to achieve a resolution," said President Clinton.

In a op-ed in the Chicago Tribune, Eric E. Sterling, President of the Criminal Justice Policy Foundation, says the problem is ineffective supervision by the U.S. Attorney General. "The key is that federal prosecutorial power is discretionary ... If the Feds were focusing on high-level dealers, the racial disparity in cocaine sentencing would disappear," he says. Sterling added, "Arguing about the sentences for 5-gram, 25-gram, 50-gram or 100-gram cases when cocaine floods in million-gram and multimillion-gram shipments, is a debate about the size of the minnows" (Eric E. Sterling, "Disparity in crack, powder cocaine sentences," Chicago Tribune, August 4, 1997, sec. 1, p. 11).

The Congressional Black Caucus opposed the recommendation. "It's not good enough. Crack wouldn't be crack without powdered cocaine," said Rep. Maxine Waters (D-CA), chair of the Caucus. Others called the recommendation a ploy to appease the black community. "It is racial politics and crime politics coming together. The administration is trying to steer a narrow course between responding to the concerns of the black community about perceived injustices, while being fearful of being accused of being soft on crime," Marc Mauer of the Sentencing Project said. "When you enter in negotiations, we should ask for the whole thing, 1 to 1, equal protection under the law," said Rep. Jesse Jackson Jr. (D-IL) (Steven Holmes, "Black Lawmakers Criticize Clinton Over Cocaine Sentencing," New York Times, July 24, 1997; Angie Cannon and Jodi Enda, "Clinton: Ease disparity on crack, powder cocaine," Philadelphia Inquirer, July 23, 1997, p. A1; Associated Press, "Crack vs. Cocaine," Newsday, July 23, 1997).

The ACLU said the plan does not stop the discriminatory effects of the disparity. The disparity "will result in continued discrimination against African Americans and Hispanics in the so-called war on drugs," said Laura Murphy, director of the ACLU Washington National Office. "President Clinton has finally discovered the path toward ending racial disparity in drug sentencing. Unfortunately, he and his Administration have only taken a few small steps down that road," she said (Press Release, "ACLU Says New Clinton Policy On Crack-Cocaine Falls Short of Fairness: Statement of Laura W. Murphy, Director, ACLU Washington National Office," July 22, 1997).

The editorial boards of several prominent newspapers applauded the efforts of Reno and McCaffrey. "Reno and McCaffrey's plan is a welcome signal that some good sense may be returning to the drug wars," noted the Los Angeles Times. "It's a contribution to a sensible drug policy and to racial fairness too," said the Washington Post. But the New York Times said, "The real question is whether there should be any harsher penalties at all for crack than for powdered cocaine" (Editorial, "Fairer Sentences in Prospect," Los Angeles Times (Washington Edition), July 23, 1997, p. A10; Editorial, "Drug Sentencing Disparities," Washington Post, July 30, 1997, p. A22; Editorial, "Rationality in Crack Sentencing," New York Times, July 23, 1997, p. A20;

Articles referenced for this report include: Will Lester, "Reno favors narrowing the crack-powder gap in cocaine penalties," Houston Chronicle, July 22, 1997, p. 8A; Christopher S. Wren, "Reno and Top Drug Official Urge Smaller Gap in Cocaine Sentences," New York Times, July 22, 1997, p. A1; Roberto Suro, "Officials Draft Plan to Reduce Cocaine Sentencing Disparities," Washington Post, July 22, 1997, p. A2; Ronald J. Ostrow, "Reno, McCaffrey Urge Revised Drug Sentences," Los Angeles Times (Washington Edition), July 22, 1997, p. A8; "Drug czar, Reno try to close gap in jail terms," Chicago Tribune, July 22, 1997, s. 1 p. 3; Peter Baker, "Clinton Would Cut Disparity In Some Cocaine Sentences," Washington Post, July 23, 1997, p. A2.