25 Years of Crack Sentencing

Twenty-five years ago this year, the U.S. Senate and U.S. House of Representatives overwhelmingly voted for, and President Reagan signed, the 1986 Anti-Drug Abuse Act creating mandatory minimums and disparate penalties for crack cocaine offenses. In the twenty-five years since its enactment, the disparate sentencing, falling along racial lines, has created a groundswell of community and political activism. Supported by members of Congress and President Obama, the process to rescind sentences and correct the disparities has begun.

Why, then, did Congress overwhelmingly pass this legislation in the first place?

For any of us living in New York, Washington, DC, Detroit, or any major city, we remember how the crack epidemic ravaged our city streets. Congress acted amid fears that the crack was more addictive than its powdered counterpart and more likely to be associated with violent crime.

As the U.S. Sentencing Commission noted in its legislative review of the 1986 Anti-Drug Abuse Act:

In response to a number of well-publicized tragic incidents, such as the death of the Boston Celtics’ first round basketball draft pick, Len Bias, in June 1986, Congress expedited passage of the 1986 Act. Because of the heightened concern and national sense of urgency surrounding drugs generally and crack cocaine specifically, Congress bypassed much of its usual deliberative legislative process.

It is important to note that this was debated and passed weeks before an odd-numbered year (that would be an election year) when Democrats wanted to best Republicans on being “tough on drugs.”  The House vote was 392-16.  The Senate vote was 97-2.

As the saying goes, hindsight is 20/20.  And this should be a lesson to Congress as they deal with monumental issues of health care and climate change. 

The near universal opposition to the disparate penalties between crack and cocaine by both Democrats and Republicans is a welcome evolution in the Congress’ position.

As the Washington Post recently editorialized,

Given that 84.7 percent of crack cases are brought against African Americans, the clear inequality fuels witnesses’ hesitancy to testify and drives judges and juries to take the law into their own hands, torn between mandatory minimums and their own sense of fairness. For too long, fears of being marked “soft on crime” have deterred members of Congress from correcting this palpable wrong. So last week’s unanimous move by the House Judiciary subcommittee on crime, terrorism and homeland security to pass the Fairness in Cocaine Sentencing Act — which would eliminate references to cocaine base from the federal criminal code and thus equalize penalties for crack and powder — is an encouraging step in the right direction. The executive branch has already begun to work toward a more rational sentencing policy, with Mr. Holder launching a working group within the Justice Department to review sentencing and corrections policy. If Congress and the Justice Department can join forces on this issue, they may be able to make progress in an area that has long needed it.

A welcome change.

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