Crack vs. Powder Cocaine: Penalties

Historically, someone convicted of possessing one gram of crack faced a 100-fold longer sentence than someone convicted of possessing one gram of powder cocaine. What chemical distinction exists between crack cocaine and powder cocaine that accounts for this discrepancy? There is no significant chemical distinction between crack and powder cocaine; both are forms of cocaine. The stark disparity in federal sentencing laws for possession of two different forms of the same drug is more about media mythology and political pressure than it is about public safety and health. A 2010 federal law addressed some, but not all, of the disparities in sentencing.

How Is Crack Cocaine Defined?

Crack cocaine is made by dissolving powder cocaine (a coca leaf derivative) and baking soda in boiling water and then cutting the resulting paste into small “rocks” after it dries. Typically, the rocks are sold in single doses to smokers. A rock of crack cocaine is less expensive than a comparable “dose” of powder cocaine due to the inexpensive additive (baking soda). However, the two forms of the drug are chemically identical and have the same physical and psychological effects on the user. A person who smokes crack cocaine (as opposed to snorting or injecting powder cocaine) experiences a more intense high more quickly simply because smoke in the lungs affects the brain more rapidly than the other methods of ingestion.

Disparate Sentencing Provisions in the 1986 Anti-Drug Abuse Act

The Anti-Drug Abuse Act of 1986 established a mandatory five-year minimum sentence for possession of five grams (or a few rocks) of crack cocaine. (21 United States Code, Section 841 (2006).) “Mandatory minimum” means precisely what it says: A person convicted of a first offense of possessing five grams of crack must serve a five-year prison sentence. In comparison, the 1986 Act required a coke-snorting user to be caught with 100 times that amount of powder cocaine (500 grams, or more than a pound) to face a similar five-year mandatory minimum sentence. This 100-to-one ratio was not arrived at through a rational analysis of the relative dangers of the two forms of the same drug; rather, during floor debate on the Act, Congress batted around various arbitrary ratios (including 20-to-one) and settled on the 100-to-one ratio. As Representative Dan Lungren (who assisted in the Act’s drafting) put it, “we didn’t really have a legal basis for it.” H6202 (156 Cong.Rec (July 28, 1986).

Under the 1986 Act, an individual caught with a few small bags of crack rocks, even if for personal use, faced the same penalties as a major powder cocaine carrier.

Fair Sentencing Act of 2010

President Obama signed the 2010 Fair Sentencing Act, repealing the five-year mandatory minimum sentence for possession of five grams of crack cocaine and increasing the amount of crack required to trigger mandatory sentencing for federal drug trafficking offenses. (See 21 U.S.C. 841, 844.) The 2010 Act reduced the ratio of crack to powder cocaine from 100 to 18 (for the purpose of imposing the same sentence for possession of each form of the drug). Thus, while the federal law continues to impose a different and harsher sentence for crack cocaine possession than for powder cocaine possession, the disparity is not nearly as great as it was under the 1986 Act.

Consult a Lawyer

Regardless of federal law changes, a charge of crack or powder cocaine is a grave offense. If you are charged with drug possession, you should consult an attorney immediately. Only an experienced criminal defense attorney familiar with state law (or, if the case is in federal court, an experienced federal practitioner) will be able to advise you on the strength of the case against you and the availability of any defenses. And only a local attorney familiar with the prosecutors and judges in your courthouse can provide an accurate assessment of how the case will likely proceed.