FEDERAL COCAINE SENTENCES MAY BE EQUALIZED BY THE FAIRNESS IN COCAINE SENTENCING ACT

For many years, the crimes of manufacturing, delivering, and possessing drugs mixed with cocaine base (crack cocaine) have been punished much more severely than the same crimes involving the same amount of cocaine in the form of powder. The Uniform Controlled Substances Act, which is found in United States Code Title 21, sets forth penalties for drug offenses. Under federal law, the simple possession of powder cocaine carries no mandatory prison sentence and the maximum punishment is 1 year. For committing the exact same offense of simple possession involving crack cocaine, however, there is a mandatory sentence of 5 years in prison.

Similarly, there are disproportionate sentences for the manufacture and delivery of the different forms of cocaine. Under the Uniform Controlled Substances Act, the manufacture of delivery of powder cocaine in the amount of 5 kilograms (5,000 grams) carries a mandatory minimum sentence of 10 years in prison. But it only takes 50 grams of crack cocaine involved in the exact same offenses to receive this same 10-year sentence. In other words, people convicted of manufacturing or delivering powder cocaine need to have 100 times the amount involved that someone convicted of manufacturing or delivering crack cocaine would need to have involved in order to receive a mandatory 10-year prison sentence.

Critics have taken issue with this huge sentencing disparity for quite some time and have noted that the people who cannot afford powder cocaine are the ones who buy and use crack cocaine and that crack cocaine is much more prevalent in the black community than in the white community. There seems to effectively be disproportionate sentencing that punishes the poor and minorities more severely than those who are white, middle class, or wealthy.

In response to the this disproportionate sentencing, the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security unanimously passed HR 3245 in July of 2009. The committee also noted that the prisons are being overcrowded with low-level drug offenders and that tax dollars could be better spent on treatment programs rather than housing low-level offenders for long periods of time. This bill has been named the Fairness in Cocaine Sentencing Act of 2009 and is currently pending in the House of Representatives.

If the bill becomes law,it will remove the mandatory minimum 5 year sentence currently imposed for simple possession of crack cocaine and will remove the language regarding 50 grams of cocaine base from the federal statute setting forth penalties for manufacture or delivery of a controlled substance. This will make the federal sentences for crimes involving crack cocaine less than they are now, but equal to what the penalties currently are for powder cocaine. It is not yet known if the proposed legislation will be retroactive if it is passed. In the meantime, if you are charged with an offense involving crack cocaine in federal court, you may seek to continue the sentencing hearing until we know whether or not the Fairness in Cocaine Sentencing Act of 2009 will become a law.