Crack-Powder Sentencing Disparity: Whites Get Probation, Blacks Get A Decade Behind Bars

Before coming to Capitol Hill, Rep. Keith Ellison spent 16 years as a trial lawyer dealing with hundreds of cases involving cocaine arrests. After President Obama signed off on new legislation to reduce the sentencing disparity between people caught with crack cocaine and those caught with powder cocaine, the Minnesota Democrat spoke to HuffPost about what it all means.

While the new law won't eliminate the sentencing disparity, Ellison says it's a big improvement.

"Basically whites use cocaine, blacks use crack," said Ellison, "or are arrested with it. It's not even use, actually. Blacks don't use that much crack but in terms of who gets caught dealing it... [blacks are] disproportionately more likely to be arrested with it... And so it's like if you show up in a criminal court you see the white guys and they're getting probation and you see the black guys are going to get ten years in prison for having basically the same substance: one is powder, one is crack."

Under the current law, crack users possessing only 5 grams of the drug are charged with a felony -- to get the same charge, powder cocaine users have to be caught with 500 grams. Now that disparity is being reduced from 100-to-1 to 18-to-1. Under the new bill, S. 1789, which was passed by the Senate in March, the threshold for crack cocaine will be raised to 28 grams. The powder level will remain the same.

"The reality is, for a lot of Americans when they think of who is a drug dealer they think of somebody who is black or a person of color," said Ellison, moments after the House's crack-powder vote last week. "Even though white people sell drugs all the time, people... just don't think of them as doing that. I mean that's what racism's about: It's an unrealistic and inflated sense of guilt associated with people of color and an unrealistic inflated sense of innocence associated with people who are white. And they just think they're fairer, nicer, kinder... Whereas they look at somebody who's black and say: 'Crook! Send him away!'"

The latest National Survey on Drug Use & Health report to differentiate by demographic and drug type information finds "Asians had the lowest rate of past year crack cocaine use (0.1 percent) compared with other racial/ethnic groups. Blacks (1.6 percent), American Indians or Alaska Natives (1.3 percent), Native Hawaiians or Other Pacific Islanders (1.2 percent), and persons who identified themselves with two or more non-Hispanic races (1.5 percent) had higher rates of past year crack cocaine use than whites (0.5 percent) and Hispanics or Latinos (0.5 percent)." Yet according to the 2005 Compendium of Federal Justice Statistics 77 percent of all people arrested for crack cocaine were black.

Why are the laws as they are?

Ellison pauses and thinks. The history of the unequal penalties under the law dates back to 1986, when Maryland basketball star Len Bias died as a result of his association with cocaine, he says. "People got outraged, and Congress launched the war on drugs," he said, "you know, they jacked up sentencing and instituted mandatory minimum sentences, which means like if you have more than a certain amount -- more than 5 grams [of crack] -- you're going to get five years in prison. And five years in prison is awful. That's a lot of time; that's a lot of time. "

The story of how the current laws took shape depends on whom you ask. "It was the politics of fear that really won the day at that time," said Jennifer Seltzer Stitt, director of Federal Legislative Affairs for Families Against Mandatory Minimums. "There was no studied response. I think there was a fear about crack babies and there was the death of Len Bias which struck fear into the hearts of people."

The new legislation was passed in the House by a voice vote last Wednesday , marking the first time since the Nixon administration that a mandatory minimum has been repealed.

"The thing that really breaks my heart," Ellison says, "is when people who oppose even this mild reform say it's all to help black people. But the reality is that it's just that we've incarcerated a whole generation of black urban youth."

Half of all suspects arrested by the DEA were 31 or younger, according to the report. And crack cocaine suspects, half of whom were 28 or younger, were even younger by comparison. Ellison adds that in his experience as a trial lawyer, middle-aged people don't get busted with crack cocaine. "They orchestrate," he said. "If they stay out of jail that long, they have people working for them."

The crack cocaine reforms passed by Congress will impact almost 3,000 crack offenders each year and reduce crack sentences by 27 months on average. In the next five years, it will save over 1,500 prison beds and over $42 million.

One concern for advocates is that it will not impact any crack offenders who are currently in prison. And Stitt said the next step is to apply the law retroactively. What's fair for someone going into prison is fair for the person who's already behind bars, she said.

"This is not saying that anybody's gonna walk," said Ellison. "It's saying that you're gonna get a sentence that is at least similar, at least more similar, to what people who deal powder cocaine get."

The United States has the highest incarceration rate in the world on a per capita basis. And Ellison adds that growth in drug-related incarceration is one of the major drivers for those rates.

There have been 73,128 crack offenders sentenced in federal courts since 1996, and each year, approximately 5,500 to 6,200 crack offenders are sentenced, according to the U.S. Sentencing Commission Sourcebook of Federal Sentencing Statistics. Last year alone, 5,684 people were sentenced for crack, with 1,856 receiving a 5-year mandatory minimum, and 2,710 receiving a 10-year mandatory minimum.

"What we're trying to do..." Ellison says, is to "make sure that an American is an American is an American, and make sure that we treat everybody the same. Equal protection under the law. So this doesn't equalize it one to one -- it's still 18-to-1, but it's a far cry better than 100-to-1."

Still Ellison said his work isn't done.

"It needs to be 1-to-1," he said.