Cocaine Sentencing Disparity Should Be Reduced, According to Study in JAMA


December 1996

In a study published in the November 20 issue of the Journal of the American Medical Association, the authors sought "to review and discuss the differences and similarities between the use of crack cocaine and [powder] cocaine hydrochloride; and to determine how these findings might affect policies on the imprisonment and treatment of cocaine users." In their study, Dorothy K. Hatsukami at the University of Minnesota and Marian W. Fischman at Columbia University examined published studies and laboratory experiments from the last 20 years comparing the two different forms of cocaine (Dorothy K. Hatsukami, PhD, and Marian W. Fischman, PhD, "Crack Cocaine and Cocaine Hydrochloride: Are the Differences Myth of Reality?" Journal of the American Medical Association, November 20, 1996, Vol. 276, No. 19, p. 1580; Christopher Wren, "Less Disparity Urged in Cocaine Sentencing," New York Times, November 20, 1996, p. zA12).

In their study, the authors determined that the physiological and psychoactive effects of the two different forms of cocaine are so similar that the 100-1 sentencing disparity is "excessive." The study shows that the "route" of cocaine use, not the form of the cocaine, determines the rate of onset, the intensity and duration of the drug's effect. "The more immediate and greater the magnitude of effect, the greater likelihood that the drug will be abused. . .Intravenous and smoked cocaine achieve maximal concentration and effect most rapidly," according to the authors. However, the authors concede that "to some extent, form dictates route (i.e., crack cocaine can only be smoked)." The authors proposed a new ratio of as little as 3 to 1 or 2 to 1, saying that some disparity in sentencing might be justified due to evidence showing "a greater abuse liability, greater propensity for dependence, and more severe consequences when cocaine is smoked." The researchers conclude that crack is more dangerous because it is more available, easier to use, and less expensive than powder cocaine.

Since 1986, federal law mandates the same minimum sentence (e.g., 5 years) for possession of 100 times more powder cocaine (500 grams) than crack cocaine (5 grams). New York criminal lawyer Lloyd Epstein told the New York Times that the disparity has created more severe sentences for low-level crack dealers than for wholesale suppliers of powder cocaine, and that it leads to the imprisonment rather than the treatment of crack addicts. Leading organizational critics of the 100 to 1 ratio include the American Civil Liberties Union, Families Against Mandatory Minimums, the NAACP, the Criminal Justice Policy Foundation, and the National Association of Criminal Defense Lawyers. Dr. Fischman and Dr. Hatsukami conclude, "Although crack cocaine has been linked with crime to a greater extent than cocaine hydrochloride, many of these crimes are associated with addiction to cocaine. Therefore, those addicted individuals who are incarcerated for the sale or possession of cocaine are better served by treatment than prison."

The sentencing disparity has survived numerous legal attacks on grounds of racial inequity. During the 1980s, the availability and lower price of crack cocaine led to a market expansion of the drug into poorer neighborhoods, leading to more convictions and longer sentences among African-Americans than whites. For example, blacks accounted for 88% of the federal cocaine distribution convictions in 1993, although fewer blacks reported using cocaine in 1993 compared to whites. In the spring of 1995, the U.S. Sentencing commission called the 100-1 ratio "a primary cause of the growing disparity between sentences for black and white federal defendants." The commission proposed a reduction in the ratio for sentencing crack cocaine offenders, but Congress, with Presidents Clinton's approval, rejected that proposal ("Clinton Signs Bill to Disapprove of Equalizing Crack-Powder Cocaine Sentences," NewsBriefs, December 1995, p. 3). On May 13, 1996, the Supreme Court ruled that a simple allegation that a much higher proportion of defendants charged with crack cocaine offenses in federal court in Los Angeles were African-American, compared to no prosecutions of white defendants on crack charges, did not constitute sufficient evidence that the government was selectively prosecuting African-Americans to require the government to turn over records of prosecutions (U.S. v. Armstrong, No 95-157, --U.S.--, 116 S.Ct. 1480, 1996WL241682, 59 CrL 2089, (May 13, 1996); "Allegations of Race Bias in Crack Prosecutions Requires More Proof, Supreme Court Rules," NewsBriefs, Summer 1996).