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As the first month of the new year comes to a close, there has not been much new conversation around the Opiate Crisis that has occupied significant public attention in recent years as a serious public health epidemic.

Federal Cocaine Sentencing Laws

The last substantive dialogue regarding the Opiate Crisis came last October when Democratic presidential candidates unveiled their prospective plans to combat the issue. And while the various plans ranged from greater funding for treatment for addiction to harm reduction and even decriminalization—all seemed to go farther than the Trump Administration, which has done very little since the President declared the Opiate Crisis a public health emergency in 2017.

The vacillation among politicians on both sides of the isle is nothing new. For nearly four decades the United States has been fighting a War on Drugs, with the expressed intention of eliminating illegal drug use in America. In reality this war has had a devastating impact on communities of color that remain the principle targets of oppressive drug laws and harsh sentencing guidelines. The recent shift in focus to the opiate epidemic, as rates of opiate overdose deaths have increased—has done more to highlight these racial disparities and the way that elected officials have chosen to approach the problem. This focus on opiates has overshadowed discussions of other important aspects of the War on Drugs, including federal cocaine sentencing policies. The federal cocaine sentencing guidelines that were originally enacted in the 1980s were racially and economically biased and rooted in scientific inaccuracies. In order to achieve fairness and racial justice in the United States, revision to the federal cocaine sentencing guidelines must remain a top priority.

The War on Drugs was officially launched in 1982 by President Ronald Reagan. At this time less than 2 percent of the American public identified drugs as an important issue, and drug use and crime were on the decline. However, throughout the early 1980s the rates of cocaine use and trafficking increased, and crack cocaine became more popular. Crack became popular in part because it was often sold in small quantities for lower prices. In contrast, powder cocaine was typically sold in larger quantities and was generally more expensive.

The stereotypes about crack cocaine and the dangers associated with it were reflected in the major legislation that shaped the War on Drugs.

Throughout the 1980s stereotypes about crack, and who was using crack, flourished and were heavily propagated. Over and over again, we saw images on TV and in newspapers of poor black Americans from inner city neighborhoods being arrested for crack cocaine use. These images substantiated “the war”, leading the public to believe the drug problem was of epidemic proportion and harsh punishments were needed to regain “law and order.” Magazines such as Newsweek and Time released sensational stories about crack cocaine and declared crack to be the “issue of the year” in 1986. The vast majority of news stories that focused on crack cocaine linked the drug to black Americans and impoverished inner-city neighborhoods, as opposed to white wealthy Americans and suburban neighborhoods. The surging hysteria surrounding crack cocaine, coupled with the initiation of the official War on Drugs, intensified public perception that our social problems were caused by black Americans using and abusing crack, concluding that locking up these so-called “crackheads” was the solution to our problems.

Public and political concern about crack stemmed from the perception that crack was somehow a uniquely addictive drug and caused instantaneous harm. Media focus heightened this frenzy with the focus on “crack babies” and dangerous “crackhead” predators, often linking the stereotypes with images of little black and brown babies and black men. What is most shocking about this stereotyping of who used crack cocaine is that it was an outright lie based in prejudice and not based in truth at all. White and black Americans use crack cocaine at the same rates, and if anything, whites use more than blacks. Thus, the inaccurate public perception of the black “crackhead” was especially damaging in the battle for social equality and fairness in the War on Drugs.

Unfortunately, the stereotypes about crack cocaine and the dangers associated with it were reflected in the major legislation that shaped the War on Drugs, the 1986 Anti-Drug Abuse Act and the 1988 Anti-Drug Abuse Act. This legislation enacted an astounding 100-to-1 disparity in crack vs. powder cocaine sentencing and a mandatory minimum sentence for first-time non-violent possession of crack cocaine. This made crack cocaine the only drug with a mandatory minimum penalty for a first-time non-violent possession offense. This legislation meant that someone convicted of possessing five grams of crack cocaine would receive a mandatory minimum prison sentence of 5 years, while someone would have to be convicted of possession of 500 grams of powder cocaine to get the same prison sentence. According to estimated street prices for cocaine in 2007 from the Office of National Drug Control Policy, someone convicted of possessing $500 of 5 grams of crack cocaine would get the same prison sentence as someone convicted of possessing $35,000 of 500 grams of powder cocaine. This legislation punished the poor far more than it punished the wealthy.

The social stereotypes combined with the legislation fueled the disproportionate targeting of lower income black communities, resulting in incredibly higher arrest and incarceration rates for crack-related crimes among black Americans. For example, in 1992, 91.4 percent of federal crack defendants were black while only 3.2 percent were white. These arrest rates did not accurately reflect who was using crack cocaine and disproportionately affected communities of color, pinning them with incredibly long mandatory minimum prison sentences. Another shocking example of this discrepancy comes from Los Angeles County. In a diverse county of more than 4 million people, not a single white person was arrested on federal crack cocaine charges between 1986 and 1995, despite the fact that blacks did not use more crack cocaine than whites. Furthermore, this gave Americans watching the nightly news and seeing black defendants going to prison the false perception that blacks were more likely to be drug users. The War on Drugs had targeted its enemy; crack cocaine and the black crackhead druggie.

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Why was it the case that crack cocaine was sentenced more harshly than powder cocaine? This is a question that warrants attention and scientific consideration. There is no legislative history that explains the rationale by congress in selecting the 100-to-1 sentencing ratio. In the 1980s there was a misconception that crack cocaine was somehow much more dangerous and addictive than powder cocaine or other drugs of abuse. Congressional records show discussions about crack’s unique addictiveness and that young people were particularly prone to using crack. But the science shows us this is not the case. Crack and powder cocaine are the same drug.

The psychoactive molecule in crack and powder is the same molecule; it is simply cocaine. And once the cocaine reaches the brain, it has the exact same effects on the user. The difference between the crack and powder forms of cocaine is how they are produced and how they are used, or the route of administration. Crack cocaine (the crystal form of cocaine) is made from powder cocaine (the salt form of cocaine); heat and a basic substance is added to powder cocaine to produce crack cocaine. Based on this difference in form, crack cocaine is smoked whereas powder cocaine is either snorted or dissolved in a liquid and injected intravenously. However, once the cocaine is in the brain, no matter the form (crystal vs. salt) and no matter the route of administration (smoking vs. snorting or intravenous injection), it has the exact same effects on brain function and behavior. One form of the drug is not inherently more addictive or more dangerous than the other.

Legislating based on route of administration is something we don’t do with other drugs. Federal marijuana laws do not distinguish if someone is going to orally consume the marijuana through an edible or if they are going to smoke the marijuana. When someone illicitly abuses opiate pain pills, they can swallow the pills or they can crush them up and snort the powder. We don’t determine the criminal penalty based on how the pills were used. It makes no sense to do this for cocaine either. The federal laws surrounding crack and powder cocaine are not based in sound pharmacological science, but instead are based on the stereotypes of who is associated with each drug. This is a dangerous precedent to set and has tremendous costs for our society. African Americans in lower income urban areas were targeted and disproportionately impacted by the laws without justification.

By the mid-1990s, the racial disparities in arrest and incarceration rates from the implementation of the federal cocaine laws were recognized and acknowledged. The United States Sentencing Commission, a bipartisan agency that examines sentencing policy, issued multiple reports to congress recommending that congress reduce the sentencing disparity for crack vs. powder cocaine. Based on their research, they found that the federal cocaine penalties exaggerated and wildly overestimated the harmfulness of crack cocaine, primarily targeted low level offenders, and disproportionately impacted communities of color. They recommended reducing the sentencing disparities and repealing the mandatory minimum penalty for simple non-violent possession of crack. They issued these reports in 1995, 1997, 2002, and then again in 2007. Despite these recommendations, congress failed to change the laws, ignoring the science and the harmful impact the laws were having on black Americans.

The 100-to-1 cocaine sentencing disparity remained the law of the land until 2010 with the passage of the Fair Sentencing Act, which reduced the sentencing disparity between crack and powder cocaine to 18-to-1. The original intent of this legislation was to eliminate the sentencing disparity between crack and powder cocaine, however the Senate Judiciary Committee wasn’t willing to fully accept that crack was no more dangerous than powder cocaine and thus was unwilling to change the ratio to 1-to-1. They compromised for an 18-to-1 ratio based on continued misconceptions and stereotypes that crack cocaine is more dangerous, and associated with more dangerous people, than powder cocaine.

We now find ourselves at a point in history where we are questioning the policies of the War on Drugs and the impacts of these policies. The opiate crisis was declared a public health emergency in 2017 as opposed to an issue to be handled with punitive enforcement of laws and the criminal justice system. But we must continue to focus on reforming federal cocaine sentencing laws if we are going to work toward social justice, and this is a discussion that should not be forgotten in the midst of a focus on opiates and other drugs.

A fair and equal judicial process will not be met until we have a 1-to-1 sentencing ratio for crack and powder cocaine based in sound science and in full acknowledgement of the harmful impact of the previous and current legislation on communities of color in our country.

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Jessica Siegel

Jessica A. Siegel is Associate Professor, Psychology & Neuroscience, at the University of St. Thomas. Her research examines the long-term effects of methamphetamine exposure on the brain and behavior using a mouse model. She is currently exploring the effects of adolescent methamphetamine exposure on brain function and behavior, specifically examining the dopamine transporters in the striatum and serum cortisol levels. She is also interested in how other drugs, such as nicotine, interact with the effects of methamphetamine in the adolescent brain. She teaches Brain & Human Behavior and Drugs & Behavior in the Psychology Department, and Principles of Neuroscience and Neuropharmacology in the Neuroscience Program.