Crack vs. Powder
the story behind the landmark case facing the Supreme Court
2007-10-08
By Brian Gilmore

Many years ago, Butch Jackson, the Washington D.C. based master percussionist, offered a very intriguing opinion on the ongoing crack v. powder cocaine disparity in sentencing debate. According to Jackson, who once smacked skins in rhythm for Nina Simone and Marvin Gaye, there is no debate: crack cocaine is far more destructive than powder cocaine. Thus, according to Jackson, the penalty should be much more severe for possession of crack. Of course Jackson had the unfortunate credentials to speak on the matter: he had abused both crack and powder at one time in his life.

Many others don’t see it as simple as Jackson. The crack v. powder disparity is a major source of frustration for many. Under current sentencing guidelines, there is a 100 to 1 disparity between powder and crack, meaning 5 grams of crack is 5 years in jail but it will take 500 grams of powder on your person to get the same sentence.
Opponents want crack sentences reduced to the same level as powder to restore sanity to the criminal justice system on this issue that disproportionately affects black people.

In August 2007, the Drug Policy Alliance reported “blacks constituted 82% of those sentenced under federal crack cocaine laws while whites constituted only 8.8% despite the fact that more than 66% of people who use crack cocaine are white.” 

The U.S. Sentencing Commission, the government agency always in the middle of the debate as the policy is reviewed, recognized the issue as well when it found that “sentences appear to be harsher and more severe for racial minorities than others as a result of this law.” The commission also reported that the guidelines appear unfair and misguided.

Well, we now have reached the point of no return because the U.S. Supreme Court is going to weigh in on the legality of the issue, and soon, we will know which view will carry the day.
I can tell you ahead of time that the racial disparity issue will not be resolved, but this small opening for equal justice is now possible because Derrick Kimbrough, a Gulf War veteran, got jammed in Norfolk, Virginia a few years ago with over 90 grams of powder cocaine but only 56 grams of crack rock. The powder cocaine was no big deal; Kimbrough was about 4900 grams short of very serious trouble under federal sentencing guidelines for powder cocaine

For the crack, however, Kimbrough was staring at a stretch of nearly 20 years for what was, essentially, a negligible amount to possess. It was yet another moment when the absurdity of the drug war came into sharp focus. It also again revealed how crazy the disparity is because if Kimbrough had left his crack at home, his sentence would have been much shorter.

The sentencing guidelines stated Kimbrough should have received 19-22 years, no real flexibility at all. U.S. District Court judge, Raymond A. Jackson, Norfolk, Virginia, however, sentenced Derrick Kimbrough to 15 years in prison for his crack possession and an accompanying gun charge.

Judge Jackson called the guidelines “ridiculous,” and had an ace to play anyway: Two years ago, the U.S. Supreme Court declared that federal sentencing guidelines are “advisory” and not mandatory. In other words, their word was not necessarily bond. If a judge acted reasonably in sentencing, he or she could drift outside the guidelines. Jackson made his play: he gave Kimbrough 15 years and waited for the next shoe to drop.

Uncle Sam, sensing the collapse of one of the most ineffective criminal justice concepts in the history of modern America, appealed Jackson’s order. The federal appeals court for the Fourth Circuit, one of the nation’s more conservative bodies, got on board the misguided “drug war” ship yet again, vacated Jackson’s sentence of Kimbrough, and now the U.S. Supreme Court, as it often does, will have the last word on the matter.

Strange that Black America is back at the U.S. Supreme Court in search of equality. A few months ago, that same court tossed aside the efforts of two school districts, Louisville and Seattle, to try to maintain equality in the educational system by promoting diversity within their schools. Now it looks like they are going to allegedly make the country more equal by allowing judges a little leeway in drug sentencing in non-mandatory minimum cases. It seems, well almost, criminal.

If the Court reverses and lets Judge Jackson’s 15-year sentence of Kimbrough stand, that will not really equalize anything. Crack possessors will still get longer sentences and crack will still be available.

The real issue is the country’s approach to the drug problem. The country’s current policy on illegal narcotics (crack mostly) is to lock up as many people as possible. This get -tough policy has had little effect upon the availability of crack cocaine and other drugs, but it has had a catastrophic effect on the mostly Black men sentenced as a result.

Thousands of black men now have criminal records and many of them have lost the right to vote (many states have laws which deny the vote to convicted felons). Thousands of families have been torn apart, jailed Black men missed the “dot com boom,” the technological advances of the turn of the century, and they were not and are not productive members of their communities. The chances they now have to achieve success in life are greatly diminished due to something akin to alcoholism.

But I forgot, this is about the racial disparity in drug sentencing for crack cocaine v. powder cocaine not the inherent racism in the drug war itself, so lets get back to that.

If the court sides with Kimbrough, it will be good. It will mean at last that judges have some authority in their courtrooms again when it comes to drug sentencing. Perhaps, they will recognize the uselessness of all these black men going to jail for non-violent offenses. It has been a really long time since our judges were allowed to think, examine the person before them for sentencing, and act reasonably in handing out their punishments.

Brian Gilmore is a public interest lawyer and Washington D.C. based writer. He covers law and books for EbonyJet.com