For those of us who fought long and hard to reform the notorious 100-to-one crack/powder cocaine disparity in federal law, the Fair Sentencing Act, signed by President Obama on August 3, is at once a historic victory and a major disappointment. It’s both too little, too late and a big step forward.
The Anti-Drug Abuse Act of 1986, which punished the sale of five grams of crack cocaine the same as 500 grams of powder cocaine, reflected the bipartisan drug war hysteria of the day and was approved with virtually no consideration of scientific evidence or the fiscal and human consequences. The argument for reform has always been twofold: sending someone to federal prison for five years for selling the equivalent of a few sugar packets of cocaine is unreasonably harsh, and it disproportionately affects minorities (almost 80 percent of those sentenced are African-Americans, even though most users and sellers of crack are not black).
The new law increases the amount of crack cocaine that can result in a five-year sentence to twenty-eight grams (i.e., an ounce), thereby reducing the crack/powder ratio to eighteen to one. It also eliminates the five-year mandatory minimum sentence for simple possession (without intent to distribute) of crack cocaine, thereby marking the first time since 1970 that Congress has repealed a mandatory minimum sentence.
What is the broader significance of the new law?
First, it’s one more indication that Obama is making good on his commitment to roll back the drug war. Few reformers, including myself, would have bet that Obama would deliver—in fair measure, and within eighteen months—on all three of the pledges he made while running for president. He said he’d reverse the government’s antagonism to state medical marijuana laws—and he did, with the Justice Department announcing last fall that it would essentially defer to local authorities in determining whether medical marijuana facilities were operating legally. He also said he’d support ending the ban on federal funding for needle exchange programs to reduce HIV/AIDS—and he did.
And he said he’d push to repeal the crack/powder disparity—which he did. That commitment appeared on the White House website within twenty-four hours of his inauguration. Attorney General Eric Holder described it as a personal priority and a legacy issue for him. White House and Justice Department officials joined with Congressional Black Caucus (CBC) members and other top legislators to try to eliminate the disparity—and then to achieve the best possible compromise.
To be sure, the Obama administration has been disappointing on other aspects of drug policy. Law enforcement and futile interdiction programs make up the large majority of drug war expenditures, as they have since the Reagan era. Politics continues to trump science, notably in blocking heroin maintenance, supervised injection facilities and other harm-reduction innovations that have proved highly successful abroad. And Obama’s drug czar, Gil Kerlikowske, refuses to acknowledge any merit to the arguments for reforming marijuana policy. There’s plenty of work left, but at least Obama made good on his specific commitments.
The victory also showed that traditional civil rights leaders are finally beginning to prioritize criminal justice reform. Black support for the late-’80s drug war helped legitimize the policies that led to the incarceration of millions of young African-Americans. The dawning realization of what they had wrought led the Rev. Jesse Jackson, Representative Charlie Rangel and then–SCLC president Joseph Lowery to start calling for reform of the crack/powder disparity in the early 1990s—but it never became a priority for them, the NAACP, the Leadership Conference on Civil and Human Rights or the CBC. The key advocates for the past two decades have been organizations committed to broader drug and sentencing reform—the ACLU, the Open Society Policy Center, the Sentencing Project, Families Against Mandatory Minimums and my organization, the Drug Policy Alliance.