U.S. Department of Justice 

FEDERAL COCAINE OFFENSES:

AN ANALYSIS OF CRACK

AND POWDER PENALTIES

March 17, 2002 
FEDERAL COCAINE OFFENSES: 

AN ANALYSIS OF CRACK AND POWDER PENALTIES

TABLE OF CONTENTS 

EXECUTIVE SUMMARY .................................................... iii

INTRODUCTION ............................................................ 1

PART I. BACKGROUND ................................................. 2

A. Pharmacology ..................................................... 2

B. Dosage .......................................................... 4

C. UseData ......................................................... 5

D. Race Data ........................................................ 6

F. Trafficking Data ................................................... 7

F. Data on Related Violence ........................................... 8

PART II. LEGISLATIVE AND STATUTORY BACKGROUND ................ 10

A. The U.S. Sentencing Guidelines and the Mandatory Minimum Penalties ...... 10

B. The Federal Sentencing Scheme ..................................... 11

C. Legal Challenges ................................................. 14

D. Past Legislative and Commission Proposals to Amend .................... 17

E. Current Proposals to Amend ........................................ 18

PART III: DATA AND FINDINGS .......................................... 19

A. General Characteristics of Crack and Powder Sentences .................. 21

B. Comparison by Amount of Drug ..................................... 23

C. Comparison by Specific Offender Characteristics ........................ 24

D. Brief Analysis of Proposals to Amend the Federal Sentencing Scheme ....... 26

CONCLUSIONS ............................................................. 29

11 
FEDERAL COCAINE OFFENSES:

AN ANALYSIS OF CRACK AND POWDER PENALTIES

EXECUTIVE SUMMARY 

Public debate over sentences for federal cocaine offenses has focused on the 100:1 

differential in the amounts of powder and crack cocaine that trigger the 5-and 10-year mandatory 

minimum sentences. The 100:1 differential in powder and crack cocaine amounts at sentencing is 

commonly distorted to imply that sentences for crack cocaine are vastly greater than sentences for 

powder cocaine. A closer examination of the federal penalty structure for cocaine offenses reveals 

that the 100:1 differential is misleading. A facial comparison of the guideline ranges for equal 

amounts of crack and powder cocaine reveals that crack penalties range from 6.3 times greater to 

approximately equal to powder sentences. 

In order to determine how this facial disparity played out in actual sentences, the Office of 

Legal Policy (with assistance from the Bureau of Justice Statistics and the Criminal Division's Office 

of Policy and Legislation) conducted a number of different analyses of the federal sentencing data 

for cocaine offenses collected by the U.S. Sentencing Commission between 1996 and 2000. The 

results of these analyses demonstrate that: 

Controlling for like amounts of cocaine, in 2000, crack defendants convicted 

of trafficking in less than 25 grams of cocaine received an average sentence 

that was 4.8 times longer than the sentence received by equivalent powder 

defendant. The ratio between average crack and powder sentences for 

defendants convicted of trafficking in between 15 and 49.9 kilograms of 

cocaine was 2.4:1. 

For defendants who possessed weapons, the ratio between average crack and 

powder sentences for lower amounts of cocaine was 2.9:1. For the highest 

amounts of cocaine, the ratio was only 1.6:1. 

For defendants with the highest criminal history levels, the average sentence 

for crack defendants ranged from 1.6 to 1.3 times longer (depending on the 

amount of cocaine) than the average sentence for similarly-situated powder 

defendants. 

For defendants with the lowest criminal histories, the ratio between average 

crack and powder sentences for the lowest amounts of drug 8.3:1. (This 

disparity affected 1,637 (or 7%) of the 22,896 crack defendants examined in 

this study.) But for offenders convicted of trafficking in higher amounts of 

cocaine, the ratio of average crack to powder sentences was only 2:1. 

111 
Crack cocaine is an especially dangerous drug. It is more likely to be psychologically 

addictive than powder cocaine, and it is more likely to result in chronic, heavy use. In 1999, about 

73% of all individuals admitted into those state treatment organizations that receive federal funding 

used crack. Crack is often sold in small quantities - rocks for between $3 and $35. By contrast, 

powder cocaine is sold by the gram (grams cost, on average, about $100). And crack cocaine use 

is more associated than powder cocaine use with systemic violence. For instance, in 2000, crack 

defendants were twice as likely to possess or use a weapon as powder defendants. 

If the debate over the appropriate sentences for crack and powder is to have any real meaning, 

it must be based on actual data, and it must take into account the more dangerous nature of crack 

cocaine. This paper aims to contribute to the larger policy debate by presenting data reflecting the 

actual ratio between crack and powder cocaine sentences. 

iv 
INTRODUCTION 

The sentences imposed in federal cocaine cases are based on a combination of sentencing 

guidelines and statutory rules (referred to throughout this paper as the "federal sentencing scheme"). 

The U.S. Sentencing Guidelines (the "Guidelines") specify ranges of imprisonment based on offense 

and offender characteristics. A set of overlapping statutes define the federal cocaine offenses ­

possession of cocaine base and trafficking in cocaine base or cocaine powder - and prescribe 

mandatory minimum and maximum penalties that may be imposed for these offenses. 

These mandatory minimums establish two tiers of mandatory prison terms for first-time drug 

traffickers: 

a five-year minimum sentence for individuals convicted of trafficking 5 grams of 

cocaine base or 500 grams of powder, and 

a ten-year minimum sentence for individuals convicted of trafficking 50 grams of 

cocaine base1 or 5,000 grams of power. 

The Guidelines are based on the mandatory minimums in a way that perpetuates the 100:1 

differential in the amount of powder and crack cocaine required for the imposition of a given 

sentence. Thus, for instance, a first-time, non-violent offender convicted of trafficking in 15,000 

grams (15 kg.) of powder cocaine or 150 grams of crack cocaine would face the same penalty range 

of 151 to 188 months. 

The federal sentencing scheme has been criticized on several fronts. Congress's decision to 

treat crack offenses more severely than powder offenses has been criticized on the basis that crack 

and powder are pharmacologically identical. The degree of addictiveness and pattern of abuse of 

cocaine is attributed to the method of ingestion (i.e. smoked and injected vs. snorted), rather than the 

form of the drug (i.e. powder or crack). In addition, Blacks make up a majority of crack cocaine 

defendants, and the fact that crack cocaine is treated more severely than powder is criticized as 

having a disproportionate impact on Blacks. Finally, the sentencing scheme is criticized because of 

evidence that the mandatory minimums apply to low-level crack dealers, rather than the mid-level 

dealers the legislative history indicates that Congress intended to reach. 

Proposals to amend the federal sentencing scheme for crack and powder cocaine offenses 

have focused primarily on changing the underlying ratio between powder and crack cocaine amounts. 

This paper aims to contribute to the larger policy debate by presenting data reflecting the actual ratio 

between crack and powder cocaine sentences. To collect this data, the Office of Legal Policy (with 

The federal statutes defming cocaine offenses distinguish between cocaine powder and "cocaine base." 

Cocaine base technically occurs in two forms: freebase cocaine and crack cocaine. In 1993, the Sentencing Commission 

amended the sentencing guidelines by clarifying that, for the purposes of the guidelines, "cocaine base" means crack 

cocaine. See United States Sentencing Commission Guidelines Manual (U.S.S.G.) § 2D1.1(c) (Nov. 1, 1993) 
assistance from the Bureau of Justice Statistics and the Criminal Division's Office of Policy and 

Legislation) conducted a number of different analyses of the federal sentencing data for cocaine 

offenses collected by the U.S. Sentencing Commission between 1996 and 2000. The analyses 

described in this paper attempt to compare crack and powder sentences for like amounts of cocaine. 

These analyses show that, examined on this basis, crack cocaine sentences are between 1.3 and 8.3 

times longer than powder cocaine sentences, depending on the amount of cocaine involved and the 

specific characteristics of the offender.2 

PART I. BACKGROUND 

This section provides background data on the pharmacology, use, trafficking patterns, and 

violence associated with both powder and crack cocaine. This brief discussion provides the broader 

context for the data and observations about the sentences for crack and powder cocaine offenses 

presented by this paper. 

A. Pharmacology 

Cocaine is a naturally occurring substance that is derived from the leaves of erythroxylon 

plants indigenous to South America.3 Pharmacologically, cocaine is (1) a potent analgesic and (2) 

a powerful stimulant.4 Cocaine alkaloid is available in many forms: coca leaves, coca paste, powder 

cocaine, and cocaine base.5 Cocaine powder and cocaine base are the two forms most commonly 

abused in the United States. 

Powder cocaine is a white, powdery substance that is produced by combining coca paste and 

hydrochloric acid.6 Powder cocaine is usually abused by snorting (intranasal administration) or by 

dissolving in water and injecting into a vein (intravenous administration). Powder cocaine cannot 

be smoked.7 

Cocaine base is produced from powder cocaine and is abused by smoking. It occurs in two 

forms: freebase cocaine and crack cocaine.8 

Freebase cocaine is derived from powder cocaine that has been dissolved in water 

and ammonia and combined with ether. Ether is a highly volatile and flammable 

2 Not controlling for amount, the average crack sentence is 1.6 times longer than the average powder sentence. 

United States Sentencing Commission (U.S.S.C.), Special Report to the Congress: Cocaine and Federal 

Sentencing Policy 7 (February 1995). See also Dorothy Hatsukami & Marian Fischman, Crack Cocaine and Cocaine 

Hydrochloride: Are the Differences Myth or Reality, 276 JAMA 1580, 1582 (1996). 

U.S.S.C., supra n.3, at 7. 

Id. at 9-li. 

6 Id. at 12. 

Id. 

Id. at 13. 

2 
solvent that will ignite or explode if the freebase cocaine is smoked before the ether 

has evaporated entirely.9 

Crack cocaine, by contrast, can be easily and safely manufactured in a home 

microwave by combining powder cocaine, water, and baking soda and drying the mix 

into a solid mass. This mass is "cracked" into rocks which are then smoked. One 

gram of powder cocaine yields approximately .89 grams of crack cocaine.10 

The effects produced by cocaine are largely dependent on how much and how fast the 

cocaine reaches the central and peripheral nervous systems. 

Smoked cocaine results in the quickest onset and fastest penetration. Generally, 

smoked cocaine reaches the brain within 20 seconds; the effects last for about 30 

minutes.11 

Intravenously administered cocaine reaches the brain within one minute; the effects 

are also sustained for about 30 minutes.12 Intravenous administration results in 

greater bioavailability than smoked cocaine -40 to 70 percent of smoked cocaine is 

destroyed by heating or is not inhaled.13 

Intranasally administered cocaine has a slower onset. The maximum psychotropic 

effects are felt within 20 minutes and the maximum physiological effects within 40 

minutes. The effects from intranasally administered cocaine usually last for about 

60 minutes after the peak effects are attained. Only about 30 to 60 percent of the 

amount of cocaine snorted is bioavailable.'4 

Although intravenously administered and smoked cocaine result in similar effects, smoking 

cocaine is easier. (A crack smoker is spared the difficulty of repeatedly filling a syringe and locating 

a good injection site). At least one study has shown that smoking crack cocaine is more likely to be 

psychologically addictive and lead to chronic, heavy cocaine use than the predominant method for 

administering powder cocaine (snorting).'5 

Although cocaine is not physiologically addictive, it is psychologically addictive. The 

euphoric effects of the drug result in intense psychological cravings that supersede any adverse 

effects that may occur on account of increased dependence on the drug. The pattern of cocaine abuse 

Id. 

° Id. at 14. 11 Id. at2O. 12 Id. at2l. 13 Id. at22. 

Id. at 20-21. 

15 For example, one study showed that 66% of crack users smoked on a daily basis, but only 18% of cocaine 

snorters used on a daily basis. See Hatsukami & Fischman, supra n. 3, at 1583. 

3 
by any method is associated with escalation in the amount of cocaine used and increased frequency 

of use. 16 

B. Dosage 

Because of the pattern of escalation in the amount and frequency of use that is associated 

with cocaine abuse, determining what constitutes a single dose of cocaine is complex. The Drug 

Enforcement Administration has concluded that it is "reasonable" to assume 100 mg as the dosage 

unit for crack or powder cocaine.'7 

Crack cocaine: The Drug Enforcement Administration's general dosage estimates indicate 

that 5 grams of crack - the amount that triggers the five-year mandatory minimum - contains 

between 10 and 50 dosage units.18 A single dose of crack cocaine ranges from 100 to 500 

milligrams.19 DEA intelligence indicates that a crack user is likely to consume anywhere from 3.3 

to 16.5 grams of crack a week.2° 

Powder cocaine (injected): 500 grams of powder - the amount that triggers the five-year 

mandatory minimum - contains between 1,000 and 5,000 individual doses, and a typical dose of 

powder cocaine ranges from 30 to 150 milligrams.2' The typical intravenous cocaine user injects 

between 7.2 and 9.6 grams of cocaine per week.22 

Powder Cocaine (intranasal): A line of cocaine consists of between 40 and 50 milligrams, 

and a typical user snorts between two and three lines at a time.23 The typical intranasal powder user 

consumes about 2 grams per month.24 

16 Id. at 24-26. 

See Memo from Tony P. Teresi, Chief, Office of Congressional Affairs, Drug Enforcement Administration 

to Stacy Shrader, Office of Congressman Asa Hutchinson, at 4 (March 8, 2001) (concluding that dosages for crack range 

from 25 to 100 mg, and dosages for powder range from 30 to 100 mg).

18 But see Hatsukami & Fischman, supra n.3, at 15 80-88 (concluding that 5 grams of crack yielded 50 to 200 

doses and that 500 grams of powder yielded 10,000 doses). 19 But see id. (concluding that crack cocaine doses range from 25 to 100 milligrams). 20 See Memo from Tony P. Teresi, supra n.17, at 1. 21 Id. 

22 See id at 2; Gawin & Kleber, Cocaine Use in a Treatment Population, in Cocaine in America: 

Epidemiological and Clinical Perspectives 182-92 (NIDA Monogram #61 1985). 23 See Memo from Tony P. Teresi, supra n.17, at 2. 

24 Copal Das, Cocaine Abuse in North America, 33 J. Clin. Parmacol. 296-3 10 (1993). 

4 
C. Use Data 

According to the National Household Survey on Drug Abuse, overall use of cocaine in the 

United States has decreased over the past 15 years. In 2000, 1.2 million Americans were current 

cocaine users.25 This compares to 1.5 million Americans in 199926 and 5.7 million current users in 

1985.27 

There are roughly five times as many powder cocaine users in the United States as there are 

crack cocaine users. In 2000, 1.2 million people reported using powder cocaine in the past month, 

compared to 265,000 people who reported using crack.28 

Children and young adults also use crack cocaine less prevalently than powder cocaine. Of 

students surveyed in 2001, 3.3% of 8th graders reported having used cocaine during their lifetime, 

compared with 3.0% who had used crack. For 10th graders, 5.0% had used cocaine and 3.1% had 

used crack. And for 12th graders, 7.4% had used cocaine and 3.7% had used crack.29 

Finally, the Office of Applied Studies at the Substance Abuse and Mental Health Services 

Administration collects an annual Treatment Episode Data Set from all state organizations that 

receive federal drug funding for drug treatment. In 1999, 228,206 individuals were admitted to 

treatment for cocaine abuse (this is down from 292,340 in 1994).° About 73% of all individuals 

admitted into treatment used crack.31 The remaining 27% of individuals were admitted for powder 

cocaine abuse.32 Sixty-nine percent of powder users reported that they ingested the drug intranasally 

(42,515); 17% reported intravenously administering powder cocaine (10,490). 

25 Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, 

Summary of Findings from the 2000 National Household Survey on Drug Abuse App. F, Table F. 1 (2001). "Cunent 

users" are defined as those individuals who have used cocaine within the past month. 26 Id. 

27 Alan Lescher, Research Report - Cocaine Abuse and Addition 2 (NIH Publication No. 994342) (National 

Institute of Drug Abuse May 1999). 28 Supra n.25, Table F. 1 at 131. (For 2000, 24.9 million people reported having used powder cocaine in their 

lifetime, compared to 5.3 million lifetime crack users. ) 

29 National Institute of Drug Abuse, Monitoring the Future Study Table 1 (2001). ° Department of Health and Human Services, Office of Applied Studies, Substance Abuse and Mental Health 

Services Administration, Treatment Episode Data Set (1999). 31 Id. at23. 32 Id. at24.

Id.
D. Race Data 

Data from the United States Sentencing Commission for the year 2000 indicates that 85% 

of all individuals convicted of crack cocaine trafficking were Black.34 By contrast, only 30.5% of 

powder cocaine convicts were Black (17.8% were White and 50.8% were Hispanic).35 The racial 

and ethnic breakdowns of crack and powder trafficking defendants in 2000 were as follows: 

Table A. Race and Ethnicity of Crack and Powder Trafficking Defendants, 

2000 (By Percentage). 

White Black Hispanic Other 

POWDER 17.8 30.5 50.8 0.9 

<500g 34.8 29.9 33.8 1.5 

500g-Skg 16.3 36.0 46.6 1.1 

>5kg 12.7 25.5 61.2 0.6 

CRACK 5.6 84.7 9.0 0.7 

<5g 13.1 74.9 11.0 1.0 

5-50g 7.1 85.7 6.7 0.5 

>50g 3.9 85.5 9.9 0.7 

Data Source: U.S. Sentencing Commission, 2000 Data File. 

Source: Office of Policy and Legislation, Criminal Division. 

A 1996 study of crack and cocaine powder use reported that, overall, more Whites used 

powder and crack cocaine than Blacks or Hispanics.36 However, within racial groups, a higher 

percentage of Blacks and Hispanics use crack cocaine than Whites.37 

Evidence that Blacks are more likely to use crack cocaine than Whites can also be found in 

the Office of Applied Studies' annual Treatment Episode Data Set, which shows that 58% of the 

individuals admitted for treatment for crack cocaine abuse were Black.38 By contrast, only 33% of 

powder cocaine users who entered treatment in 1999 were Black.39 

The United States Sentencing Commission collects data on the race of defendants according to the following 

categories: White, Black, Native American or Alaska Native, and Asian or Pacific Islander. Ethnicity data indicate 

whether a defendant is of Hispanic origin. Individuals who are identified as Hispanic are categorized as such in the 

Sentencing Commission data regardless of their racial background. 

Data from the United States Sentencing Commission, 2000 Data File, compiled by the Office of Policy 

Legislation, Criminal Division, U.S. Department of Justice. 

36 Hatsukami & Fischman, supra n.3, at 1581 (Whites = 3.6 million; Black = 1.0 million; Hispanic = 0.7 

million). 

Id. 

38 TEDS, supra n.30, at Table 3.lb. 

Id. 

6 
E. Trafficking Data 

According to the Drug Enforcement Administration, all cocaine is imported into the United 

States as powder.4° Distribution in the United States is conducted at three broad levels: wholesale 

trafficking, mid-level distribution, and retail selling. 

Wholesale cocaine traffickers purchase cocaine from importers and regional distributors in 

kilogram or multikilogram allotments.41 Local Wholesalers deal generally in quantities of 15 

kilograms or less.42 

Distributors purchase cocaine in one-kilogram or less quantities and package the cocaine into 

ounce quantities or convert it into crack and package it into ounces for sale by retail sellers.43 The 

DEA has noted that, in an effort to avoid the severe federal penalties for crack cocaine, some 

distributors deal only in powder cocaine.44 

Retail Sellers generally deal in ounce and gram quantities. Powder is usually sold in larger 

amounts than crack. Retail crack sellers usually carry dosage units totaling no more than a few 

grams at any one time (although during the course of a single shift, the amount of crack sold by one 

retail seller can be substantial.)45 

Prices for powder cocaine typically mirror or are slightly lower than crack prices, although 

crack cocaine can be purchased in smaller and less expensive amounts. A report issued in 2000 by 

the Office of National Drug Control Policy reported that crack cocaine is most commonly sold by 

the rock, and prices per rock ranged from $3 to $35•46 The cost of crack by the gram ranged from 

$20 per gram in Miami to $28 per gram in New York City to $100 per gram in Los Angeles, 

Billings, MT, and Washington, DC, to $250 per gram in Hawaii.47 Prices for powder cocaine ranged 

from $20 per gram in Sioux Falls, SD, to $200 in Hawaii, with most regions reporting prices of 

around $100 per gram.48 

Method of Delivery: Crack cocaine is sold mostly on street corners, in private residences, 

and in crack houses in hand-to hand transactions.49 Crack sellers are seldom affiliated with 

40 See also U.S.S.C., supra n.3, at 66-67. 41 Id. 42 Id. 

One ounce = 28.5 grams. 

See also U.S.S.C., supra n.3, at 66-67. 

Report to the U.S. Sentencing Commission by Paul Daly, Assistant Administrator of the Intelligence 

Division, Drug Enforcement Administration at 2-3 (October 9, 1996). 

46 Office of National Drug Control Policy, Pulse Check: Mid-Year 2000 at 22 (2000). 

Id. 

48 Id. at 24-25. 

Id. at34. 

7 
trafficking organizations; some geographic regions report that crack sellers are often involved in 

gangs (Chicago, Columbia, Denver, Honolulu, Los Angeles, Portland, and Washington, DC).5° 

By contrast, powder cocaine is most often sold using a delivery method whereby a customer 

places an order over the phone and the seller delivers the product to the customer.5' Street-level 

powder sellers are equally likely to sell as part of a gang or independently.52 

Powder Seizures: In 2000, the DEA made 4,100 seizures of powder cocaine (a total of 

55,523,225 grams). The average powder seizure was 13,542 grams. In 2001, the DEA made 3,671 

powder seizures, with an average size of 12,322 grams. More than 60% of the DEA's seizures of 

powder cocaine in 2000 and 2001 were for amounts less than 500 grams. For instance, in 2001, 

DEA made 2,764 seizures of less than 500 grams of powder. This compares to 454 seizures of 

powder in amounts between 500 and 2500 grams and 453 seizures of powder in amounts greater than 

2500 grams.53 

Crack Seizures: In 2000, the DEA made 3,866 seizures of crack cocaine (a total of 338,936 

grams). The average crack seizure was 88 grams. Tn 2001, the DEA made 3,916 seizures of crack 

cocaine, with an average seizure of 72 grams. In 2001, the majority of cocaine seizures were 

between 5 and 249 grams (2,649 seizures), compared with 1,121 seizures of less than 5 grams and 

146 seizures of more than 250 grams.54 

F. Data on Related Violence 

Although the reason for the link is not entirely clear, crack cocaine use is more associated 

than powder cocaine use with systemic violence. A partial explanation of the greater degree of 

systemic violence associated with crack cocaine arises from the nature of crack and powder 

transactions. Crack transactions tend to be hand-to-hand and often involve gang members; crack 

users are less likely to use a regular supplier or a main source;55 and the pattern of crack use (a short 

high followed by additional drug use) may mean that users and sellers interact in a manner that 

elevates personal and aggregate risk.56 (Users coming off crack often feel an intense need for more 

crack and frequently suffer from dysphoria and extreme agitation.57) 

A November 2000 study examined the effect of the crack epidemic on urban crime rates and 

concluded that, in the absence of crack, urban crimes rates in 1991 (the most recent peak year for 

° Id. at 33. 51 Id. at37. 52 Id. at 35. 

Figures from DEA, on file with the Department of Justice. 

Id. 

ONDCP, supra n.46, at 34. 56 K. Jack Riley, Homicide and Drugs: A Tale of Six Cities, 2 Homicide Studies 176, 196-97 (1998). 

Id. at 197-98. 

8 
urban crime) would have been 10% lower.58 The study further found that the most prevalent form 

of violence related to crack cocaine abuse was aggravated assault.59 The authors also noted an 

increase in property crimes associated with crack use.6° In addition, a 1998 study identified crack 

as the drug most closely linked to trends in homicide rates.6' 

Crack does not appear to cause violenceper se - rather it appears that crack abuse intensifies 

criminal behaviors in which the users were already involved.62 Several studies have noted that crack 

sales may be more violent because crack is sold in smaller units and involves a higher volume of 

transactions.63 The crack market is highly decentralized with many small, independent groups 

competing for territory and profits; this may lead to a greater reliance on violence as a means of 

"regulating" the crack market.64 

Crack also is much more associated with weapons use than is powder cocaine: in FY 2000, 

weapons were involved in 10.6% of powder convictions, and 21.3% of crack convictions.65 

One of the best-documented links between increased crime and cocaine abuse is the link 

between crack use and prostitution. According to the authors of one study, "[h]ypersexuality 

apparently accompanies crack use."66 In this study, 86.7% of women surveyed were not involved 

in prostitution in the year before starting crack use; one-third become involved in prostitution in the 

year after they began use.67 Women who were already involved in prostitution dramatically 

increased their involvement after starting to use crack, with rates nearly four times higher than before 

beginning crack use.68 

In another 1991 survey of drug users, crack cocaine smokers reported more sex partners, 

more acts of unprotected sex, a higher frequency of exchanging sex for drugs or money, and a higher 

frequency of drug use before or during sex than IV cocaine users who did not smoke cocaine. 

Because of this, crack cocaine smokers have been found to have rates of HIV infection as high as 

those among IV drug users.69 Crack users were also more likely to contract other sexually 

transmitted diseases, such as gonorrhea and syphilis, compared with cocaine hydrochloride users.7° 

58 Jeff Grogger and Michael Willis, The Emergence of Crack Cocaine and the Rise in Urban Crime Rates, 4 

Review of Econ. and Stats. 519, 526 (2000). 

Id. at 525. 60 Id. 

61 Riley, supra n.56, at 196-97. 

62 Ko-Lin Chin & Jeffrey Fagan, The Impact of Crack on Drug and Crime Involvement 19-21(1991. 63 Id. at 5. 64 Id. 

65 Data from the United States Sentencing Commission, 2000 Data File, compiled by the Office of Policy 

Legislation, Criminal Division, U.S. Department of Justice. 66 Chin & Fagan, supra n. 62, at 21. 

67 Id. at 15. 68 Id. at 15. 

69 Hatsukami & Fischman, supra n.3, at 1585. 

70 Id. 

9 
PART II. LEGISLATIVE AND STATUTORY BACKGROUND 

The sentences imposed in federal cocaine cases are based on a combination of sentencing 

guidelines and statutory rules (referred to throughout this paper as the "federal sentencing scheme"). 

The U.S. Sentencing Guidelines (the "Guidelines") are promulgated by the United States Sentencing 

Commission, ajudicial branch agency that issues rules and policies governing sentencing in federal 

cases. A set of overlapping statutes define the federal cocaine offenses - possession of cocaine base 

and trafficking in cocaine base or cocaine powder - and prescribe mandatory minimum and 

maximum penalties that may be imposed for these offenses. 

A. The U.S. Sentencing Guidelines and the Mandatory Minimum Penalties 

The Guidelines are a result of the Sentencing Reform Act of 1984. This legislation provided 

for a comprehensive statement of federal sentencing laws, appellate review of sentences, and the 

abolition of parole. This legislation also created the United States Sentencing Commission, whose 

members are appointed by the President subject to Senate confirmation, and directed it to develop 

a detailed system of guidelines to structure and direct the sentencing discretion of federal district 

court judges. 

At the same time that the Commission was developing and promulgating the sentencing 

guidelines, Congress enacted a number of mandatory minimum statutes for drug, weapon, and 

recidivist offenders. In 1986, prior to the implementation of the sentencing guidelines, Congress 

enacted the Anti-Drug Abuse Act (the "1986 Act") which established mandatory minimum penalties 

for persons convicted of trafficking in powder and crack cocaine, among other substances.71 The 

1986 Act also initiated the federal criminal law distinction between "cocaine base" and other forms 

of cocaine,72 and established two tiers of mandatory prison terms for first-time drug traffickers: 

' This legislation moved quickly through Congress and the legislative history is sparse. The legislative history, 

as evidenced mainly by the statements of individual legislators, suggests that Congress perceived crack cocaine to be 

at the forefront of a national drug-abuse epidemic. See, e.g., 132 Cong. Rec. 26,436 (Sept. 26, 1986) (statement of Sen. 

Biden); id. at 26,444 (statement of Sen. Deconcini); 132 Cong. Rec. 8,091 (June 20, 1986) (statement of Sen. D'Amato). 

Additionally: 

• Congress's decision to differentiate crack cocaine from powder cocaine in the penalty structure was 

deliberate and reflected Congress's conclusion that crack cocaine was more dangerous and associated 

with greater social harms than powder cocaine. See U.S.S.C., supra n.3, at 118.. 

• Congress intended quantity levels triggering the ten-year mandatory minimum penalties to be those 

associated with major traffickers; quantity levels triggering the five-year mandatory minimum penalties 

were intended to be associated with serious/mid-level traffickers. Id. at 118-19. 

• In 1986, some members of Congress pushed in favor of stronger crack penalties because crack was 

seen as disproportionately victimizing African-Americans, particularly in urban neighborhoods. Id. 

72 Although "cocaine base" technically includes both freebase and crack cocaine, the sentencing guidelines 

define the term to apply only to crack cocaine. See U.S.S.G. § 2D1.l note C. 

10 
• a five-year minimum sentence for individuals convicted of trafficking­5 grams of 

cocaine base or 500 grams of cocaine powder, and 

• a ten-year minimum sentence for individuals convicted of trafficking 50 grams of 

cocaine base or 5,000 grams of cocaine power. 

The sentencing provisions of the 1986 Act were implemented in August 1986. In 1987, the 

Sentencing Commission used the same 100:1 quantity ratio to set drug penalties under the 

Guidelines.73 The initial set of sentencing guidelines was promulgated in November 1987. The 

Supreme Court upheld the constitutionality of the Sentencing Commission and the guidelines in 

January 1989 in Mistretta v. United States, 488 U.S. 361 (1989). Full nationwide implementation 

of the sentencing guidelines followed. 

B. The Federal Sentencing Scheme 

The provisions that define federal cocaine offenses differentiate between trafficking74 - the 

production or distribution of controlled substances - and possession.75 Sentences for trafficking in 

crack or powder cocaine are linked to the statutory mandatory minimums established by the 1986 

Act.76 Simple possession of powder cocaine - regardless of amount - is treated as a misdemeanor, 

punishable by up to a year of imprisonment. However, possession of more than five grams of a 

mixture or substance containing crack cocaine base is punishable by imprisonment for at least five 

years.77 

All federal defendants convicted of a felony or Class A misdemeanor offense are sentenced 

according to the Guidelines, which are pegged to the applicable mandatory minimums. The 

Guidelines, which are set out in the Federal Sentencing Guidelines Manual, specify a range of 

imprisonment based on offense and offender characteristics. To determine the applicable guidelines 

U.S.S.C., supra n.3, at 1. 

" 21 U.S.C. § 84 1(a) makes it unlawful for any person "knowingly or intentionally (1) to manufacture, 

distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or (2) to 

create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance." 

21 U.S.C. § 844 makes it unlawful for any person "knowingly or intentionally to possess a controlled 

substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, 

while acting in the course of his professional practice, or except as otherwise authorized by this subchapter or subchapter 

H of this chapter." 

76 For cases involving trafficking in at least 5 grams of cocaine base or 500 grams of cocaine powder, 21 U.S.C. 

§ 841 (b)( 1 )(B) prescribes a mandatory minimum prison term of not less than 5 years. For cases involving trafficking 

in at least 50 grams ofcocaine base or 5,000 grams of cocaine powder, 21 U.S.C. § 841 (b)( l)(A) prescribes a mandatory 

minimum prison term of not less than 10 years. In cases where the drug amount criteria for the basic five-year or ten-year 

mandatoiy penalties are satisfied, 21 U.S.C. § 841 provides higher mandatory penalties if certain additional aggravating 

factors are present. Specifically, higher mandatories are provided - in some circumstances up to life imprisonment ­

where the offender has prior drug offense convictions or death or serious injury results from use of the drugs involved 

in the offense. 

21 U.S.C. § 844. This provision was enacted as part of the Anti-Drug Abuse Act of 1988. 

11 
range in particular cases, a base offense level is assigned according to nature of the offense, and a 

criminal history category is assigned on the basis of the seriousness of the offender's criminal 

history. These two factors in combination (and as adjusted to reflect aggravating and mitigating 

factors) determine the applicable guidelines range of imprisonment. 

The base offrnse levels for crack and powder cocaine trafficking offenses are based on the 

quantity of drug involved in the offense. For offenders who have no other adjustments made to their 

offense level, the base offense level would correspond to the final offense levels listed in the 

following table.78 

Table B. Penalties 

Level. 

for Crack and Powder Cocaine Trafficking by Offense 

Guideline offense 

level (2Dl.1) 

Quantity 

Crack 

of Drugs 

Powder 

Guideline Range 

(CH I) 

12­ Oto<250mg Oto<25g 10-16 months 

14­ 250to<500 25to<50g 15-21 months 

16

500mgto<lg SOto<lOOg 2 1-27 months

18

lto<2g lOOto<200g 27-3 3 months

20

2to<3g 200to<300g 33-41 months

22

3to<4g 300to<400g 41-5 1 months

24­ 4 to <5 g 400 to <500 g 5 1-63 months 

26

Sto<20g 500 gto <5 kg 63-78 months 

28­ 2Oto<35g 2to<3.5kg 78-97 months 

30­ 35to<50g 3.5 to <5 kg 97-121 months 

32­ 5Oto<150g Sto<l5kg 121-151 months 

34 150 to <500g 15 to <50 kg 151-188 months

36 SOOgto<1.5 SOto<lSOkg 188-235 months

38 >1.5 kg >150kg 235-293 months

Source: Office of Legal Policy based on the U.S. Sentencing Guidelines Tables

As demonstrated by Table B, the 100:1 differential in amount that Congress established when it 

created the mandatory minimums in the 1986 Act is embodied in the offense levels for powder and 

crack trafficking offenses. The base offense level for trafficking in 500 grams of powder cocaine 

or 5 grams of crack cocaine is the same: level 26. 

The defendant is next assigned a criminal history category. These categories range from I 

to VI and are based on the defendant's prior criminal acts.79 The defendant's criminal history 

category in combination with his base offense level determines the applicable guideline range of 

78­ See U.S.S.G. § 2D1.1(c)(12), Ch. 5 Pt. A (sentencing table).

See U.S.S.G. §4A and §5A (Table).

12 
imprisonment. For instance, for an offender convicted of trafficking in 5 grams of crack with a 

criminal history level I and no other adjustments, the applicable guidelines range would be between 

63 and 78 months of imprisonment. A defendant with the same base offense level but a criminal 

history level V would face between 110 and 137 months of imprisonment. 

A defendant's base offense level and criminal history category can be altered by certain 

predetermined aggravating and mitigating factors. For example, possession of a firearm is a 

"special offense characteristic" that increases a defendant's offense level by two points.80 

Judges are generally expected to impose a sentence within the applicable range, but the 

Guidelines permit the courts to impose sentences outside of the range if the circumstances of the 

cases are not adequately addressed by the Guidelines or the defendant provided substantial assistance 

to prosecutors. Sentences outside of the guidelines range are referred to as upward and downward 

departures. Downward departures, most frequently on the basis of cooperation by the offender with 

the government, are relatively common in drug cases. One common downward departure is as 

follows: 

Substantial Assistance: In addition to this specific exception to drug law mandatory 

penalties, 18 U.S.C. 3553(e) allows the court, on the motion of the government, to 

impose a sentence below any statutory minimum penalty to reflect substantial 

assistance by the offender to the government in the investigation or prosecution of 

an offense.8' This exception is applied frequently in drug cases, which often involve 

"trading up" - according more lenient treatment to low-level participants in drug 

trafficking organizations in return for their assistance in investigating and prosecuting 

the organization's supervisors and leadership. 

Upward departures very rarely occur in drug cases.82 

Defendants may also qualify for exemption from the mandatory minimum penalties: 

Safety Valve: Under a special statutory exception, mandatory minimum penalties 

under the drug laws are inapplicable in certain cases involving nonviolent, low-level 

drug offenders.83 The specific criteria for this exemption, commonly referred to as 

a "safety valve," are that: (1) the offender does not have a very serious criminal 

80 See U.S.S.G. § 2D 1.1 Unlawful Manufacturing, Importing, Exporting, or Trafficking. Mandatory penalty 

provisions which are defined outside of the drug laws also can affect the sentences imposed in drug cases. In particular, 

18 U.S.C. 924(c) generally requires a prison term of at least five years for a person who uses, carries, or possesses a 

firearm during the commission of a federal crime of violence or drug frafficking crime. 81 See U.S.S.G. § 5K1.l. 82 See Bureau of Justice Statistics, Federal Drug Offenders, 1999 with Trends 1984-99, at 9 (Table 7), 10-11 

(Aug. 2001) (in drug cases in 1999, sentence was within guidelines range for 56.2% of defendants, above guidelines 

range for 0.2% of defendants, and below guidelines range for 43.6% of defendants). 

83SeeU.S.S.G. § 5Cl.2, 18 U.S.C. § 3553(f). 

13 
history, (2) the offender was not armed or violent, (3) the offense did not result in 

death or serious injury, (4) the offender was not a leader or supervisor in drug 

trafficking activities, and (5) the offender did not withhold information or evidence 

from the government. ­

Finally, the Sentencing Reform Act abolished parole. Prisoners can receive a reduction of 

time served for good behavior in prison of no more than 54 days for each year served. Prisoners with 

drug abuse problems who successfully complete residential substance abuse treatment can have their 

imprisonment reduced by up to a year.84 In addition, offenders who are not sentenced to 

imprisonment may be sentenced to a period of supervision, which is referred to as "probation." In 

cases where a term of imprisonment is imposed, the sentence usually includes as well a period of 

post-imprisonment supervision.85 

C. Legal Challenges 

Every appellate court that has heard a challenge to the crack and powder cocaine sentencing 

structure has upheld it as constitutional. Defendants challenged the federal sentencing scheme under 

the Equal Protection and Due Process clauses, and the Eighth Amendment. Defendants have also 

asserted that the federal sentencing statutes are unconstitutionally vague. These constitutional 

challenges to the federal sentencing scheme have failed. 

1. Equal Protection 

Defendants have made two arguments under the Equal Protection Clause. Defendants have 

argued that Congress and the Sentencing Commission acted with discriminatory intent in creating 

the sentencing differential in amount, as evidenced by allegedly racist language in Congressional 

hearings and the sparse legislative history. Courts have rejected this argument, stating that there is 

no evidence of discriminatory intent sufficient to warrant application of strict scrutiny.86 In the 

alternative, defendants argue that the federal sentencing scheme is unconstitutional because it has 

a disproportionate impact on Blacks. Many such arguments rely on the Sentencing Commission's 

1995 report to Congress, discussed in Section ll.D, infra at 17, which recommended adjusting the 

guideline quantity ratio so that the base offense levels would be the same for both powder cocaine 

and crack cocaine offenses and setting the mandatory five-year minimums for both crack and powder 

84 18 U.S.C. § 3621(b) & (e) require that "every prisoner with a substance abuse problem have the opportunity 

to participate in appropriate substance abuse treatment." Only non-violent prisoners are eligible to have their term of 

imprisonment reduced. 

85 See 18 U.S.C. § 3551, 3561, 3583; 21 U.S.C. § 841. 86 See United States v. Singleterry, 29 F.3d 733, 741(1st Cir. 1994), cert. denied, 115 5. Ct. 647 (1994); United 

States v. Moore, 54 F.3d 92, 98 (2nd Cir. 1995), cert. denied, 116 S. Ct. 793 (1996); Un ited States v. Frazier, 981 F.2d 

92, 95 (3rd Cir. 1992), cert. denied, 113 5. Ct. 1662 (1993); United States v. Angulo-Lopez, 7 F.3d 1506, 1509(10th 

Cir. 1993),cert. denied, 114 5. Ct. 1563 (1994); UnitedStatesv.Hanna, 153 F.3d 1286, 1288 (llthCir. 1998); United 

States v. Johnson, 40 F.3d 436, 439 (D.C. Cir. 1994), cert. denied, 115 5. Ct. 1412 (1995). 

14 
cocaine at 500 grams.87 Courts have rejected this argument after applying rational basis analysis, 

holding that, despite the Sentencing Commission's proposals to reduce the sentencing differential 

in amount, racially neutral justifications for the sentencing scheme exist sufficient to find the 

differential constitutional.88 

In addition, at least one defendant has argued that courts should apply intermediate scrutiny 

to the sentencing differential because of proposals by federal officials that have advocated its 

elimination or reduction. The court in this case refused consider crack and powder cocaine as quasisuspect classifications, and did not applied intermediate scrutiny.89 

At least one district court has ruled that the sentencing differential violated the Equal 

Protection Clause, relying on the "unconscious racism" of Congress.9° The Eighth Circuit rejected 

the district court's ruling, holding that no evidence of purposeful discrimination by Congress 

existed.91 

However, despite the fact that circuit courts have upheld harsher penalties for crack offenses, 

some do so reluctantly. Appellate judges have criticized the rationality of the sentencing differential 

for its disproportionate impact on minorities, especially in light of proposals to reduce or amend it.92 

87 United States v. Teague, 93 F.3d 81, 85 (2nd Cir. 1996), cert. denied, 117 S. Ct. 708 (1997); United 

States v. Washington, 127 F.3d 510, 516-17 (6th Cir. 1997); United States v. Jackson, 84 F.3d 1154, 1161(9th Cir. 

1996), cert. denied, 117 S. Ct. 445 (1996). 88 Jackson, 84 F.3d at 1161 ("we do not agree that the Commission's report, of Congress's decision to reject 

it, affects the precedential value of our ruling that Congress had a rational basis for the 100:1 ratio"); see also Singleterry, 

29 F.3d at 741; Moore, 54 F.3d at 98; Frazier, 981 F.2d at 95; Un ited States v. Burgos, 94 F.3d 849, 877(4th Cu. 1995), 

cert. denied, 117 5. Ct. 1087 (1997); United States v. Fisher, 58 F.2d 96, 100-01 (4th Cir. 1995), cert. denied, 116 S. 

Ct. 329 (1995); Un ited States v. Fonts, 95 F.3d 372, 375 (5th Cir. 1996); Washington, 127 F.3d at 516-17; Un ited States 

v. Reddrick, 90 F.3d 1276, 1282 (7th Cir. 1996); Un ited States v. Clary, 34 F.3d 709, 713 (8th Cir. 1995), cert. denied, 

15 S. Ct. 1172 (1995); Un ited States v. Willis, 967 F.2d 1220, 1225 (8th Cir. 1992); Johnson, 40 F.3d at 440-41; United 

States v. Robinson, 978 F.2d 1554, 1565 (10th Cir. 1992), cert. denied, 113 5. Ct. 2938 (1993); Hanna, 153 F.3d at 

1289. 

See United States v. Coleman, 166 F.3d 428, 430 (2nd Cir. 1999), cert. denied, 119 S. Ct. 1794 (1999). ° See United States v. Clary, 846 F. Supp. 768, 778-82 (E.D. Mo. 1994). ' See Clary, 34 F.3d at 713. 

92 See United States v. Eirby, 262 F.3d 31, 41(1st Cir. 2001) (noting "severity" of crack penalties); 

Singleterry, 29 F.3d at 741 (defendant, although without a valid constitutional claim, properly questions fairness of 

cocaine sentencing); Washington, 127 F.3d at 5 18-19 (Jones, J., concurring) (Sentencing Commission's conclusion 

to eliminate the 100:1 differential should be given "controlling weight" under administrative law principles); 

Reddrick, 90 F.3d at 1283 (Cudahy, J., concurring) (extraordinary impact of 100:1 sentencing ratio requires 

additional examination and has been questioned by at least two other circuit court judges); Willis, 967 F.2d at 1226­

27 (Heaney, J., concurring) (Congress lacked a rational basis to create a such a harsh distinction in sentencing 

between crack and powder cocaine); William Spade, Jr., Beyond the 100:1 Ratio: Towards a Rational Cocaine 

Sentencing Policy, 38 ARiz. L. REv. 1233, 1279-84. 

15 
2. Due Process 

Courts have also unanimously rejected challenges to the federal sentencing scheme under the 

Due Process Clause. Defendants have argued that the Sentencing Guidelines' differentiation 

between crack and powder cocaine constitutes an irrational classification in violation of substantive 

due process because both substances are chemically equivalent and have similar effects on a user's 

health. Courts have rejected this argument, holding that crack's lower price and higher propensity 

to cause addiction constitute a rational justification sufficient to impose higher penalties for crack 

offenses.93 

3. Cruel and Unusual Punishment under the Eighth Amendment 

Defendants have argued that the higher sentences for crack offenses are so disproportionate 

to their offenses as to constitute cruel and unusual punishment in violation of the Eighth 

Amendment. Courts have rejected this contention in every circuit, holding that Congress and the 

Sentencing Commission have reasonable grounds to impose a longer sentence on crack offenders 

because of differences between crack and powder cocaine in the societal effects on trafficking in the 

drug, the method of the drug's use, and the drug's effect on the user.94 

4. Vagueness 

Circuit courts have upheld the federal sentencing scheme against vagueness challenges. 

Cocaine and crack are two forms of the same drug, cocaine alkaloid. Defendants have argued that 

distinctions embedded in the federal sentencing scheme between "cocaine" and "cocaine base" are 

unconstitutionally vague. Courts have rejected this argument, holding that sufficient precision 

between the terms exist to defeat a vagueness attack.95 Vagueness arguments have also been 

defeated on the grounds that penalty provisions are not unconstitutionally vague "merely because 

they expose defendants to the risk that legally significant factors within their criminal conduct may 

trigger enhanced sentences."96 

Although no federal circuit court has upheld a vagueness challenge to the federal cocaine 

sentencing scheme, a district court in the Northern District of Georgia found that the distinction 

between cocaine and cocaine base was a "scientifically meaningless distinction," and ordered that 

See Singleterry, 29 F.3d at 740; Un ited States v. Pickett, 941 F.2d 411, 418 (6th Cir. 1991); United 

States v. Buckner, 894 F.2d 975, 978-80(8th Cir. 1990); Robinson, 978 F.2d at 1565; United States v. Turner, 928 

F.2d 956, 959-60 (10th Cir. 1991), cert. denied, 112 S. Ct. 230. 

See United States v. Levy, 904 F.2d 1026, 1034 (6th Cir. 1990) (citing United States v. Cyrus, 890 F.2d 

1245, 1248 (D.C. Cir. 1989)) (the only three cases where disproportionality in sentencing has resulted in an Eighth 

Amendment violation illustrated examples of "gross inequity"); see also Frazier, 981 F.2d at 95-6; Pickett, 941 F.2d 

at 419; Buckner, 894 F.2d at 980-81; Angulo-Lopez, 7 F.3d at 1509-10. 

See Frazier, 981 F.2d at 94-95; Turner, 928 F.2d at 960. 

United States v. Levy, 904 F.2d 1026, 1032-34 (6th Cir. 1990); see also United States v. Smith, 73 F.3d 

1414, 14l7-l8(6thCir. 1996). 

16 
the heightened penalties for crack offenses could not be applied in the instant case based on the rule 

of lenity.97 The court, based on testimony from four experts, found that cocaine and cocaine base 

are scientifically identical due to their molecular substance, weight, and melting point.98 

D. Past Legislative and Commission Proposals to Amend 

In the early 1 990s, the Sentencing Commission began collecting data on federal offenders 

that for the first time differentiated among drug offenders based on the type of drug involved in the 

offense. An analysis of the data revealed a fact that proved to be startling to many: about 90 percent 

of all crack cocaine offenders were Black. This fact, in light of the stronger penalties for crack 

offenses, raised significant concerns for many at the Sentencing Commission, the Department of 

Justice, and in Congress. A series of reports, recommendations, and administrative and legislative 

actions followed. 

In 1994, Congress directed the Sentencing Commission to issue a report and 

recommendations on cocaine and federal sentencing policy.99 In response, the Commission issued 

a report to Congress in 1995 recommending changes to the current cocaine sentencing scheme.10° 

The proposed amendments would have adjusted the guideline quantity ratio so that the base offense 

levels would be the same for both powder cocaine and crack cocaine offenses; set the mandatory 

five-year minimums for both crack and powder cocaine at 500 grams; and eliminated the unique 

five-year mandatory minimum for simple possession of more than five grams of crack cocaine. 

The Department of Justice formally opposed the Commission's recommendation and sought 

legislation overturning the Commission's proposed guideline amendments. In October 1995, 

Congress passed and the President signed legislation rejecting these amendments.'°1 In this 

legislation, Congress directed the Commission to submit recommendations regarding changes to the 

statutes and guidelines governing cocaine sentencing. Congress directed that the recommendations 

reflect certain principles, including that the "the sentence imposed for trafficking in a quantity of 

crack cocaine should generally exceed the sentence imposed for trafficking in a like quantity of 

powder cocaine," that high-level traffickers should receive higher sentences than lower-level ones, 

and that there should be enhancements for (among other things) use of weapons, violence, or 

victimizing pregnant women or children.'°2 

In April 1997, the Commission issued a second report on federal cocaine sentencing policy, 

but did not issue specific proposed Guidelines amendments. For powder cocaine, the Commission 

concluded that the current 500-gram trigger for the five-year mandatory minimum sentence should 

United States v. Davis, 864 F. Supp 1303, 1309 (N.D. Ga. 1994). 

See id. at 1306. 

Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322 (September 1994). 100 See Amendments to the Sentencing Guidelines for United States Courts, 60 Fed. Reg. 25074 (1995). 

'o See Pub. L. No. 104-38, 109 Stat. 334 (Oct. 30, 1995). 

102 Id. 

17 
be reduced to a level between 125 and 375 grams. For crack cocaine, the Commission recommended 

increasing the five-gram trigger to between 25 and 75 grams.'°3 

In mid-1997 the Department of Justice and the Office of National Drug Control Policy 

("ONDCP") reviewed the Commission's recommendations. Attorney General Janet Reno and 

ONDCP Director Barry R. McCaffrey sent a recommendation to President Clinton to increase the 

five-year trigger for crack cocaine to 25 grams and to decrease the trigger for powder cocaine to 250 

grams. President Clinton endorsed that recommendation, and also endorsed the repeal of the 

mandatory minimum sentence for simple possession. 

In the 105th 1061h and 107th Congresses, various bills were introduced to revise federal 

cocaine sentencing policy. Some of the bills would have equated powder and crack penalties by 

increasing powder cocaine penalties. Others would have equated penalties by lowering crack 

penalties. Still others would have reduced the differential by a combination of increases to powder 

cocaine sentences and reductions in crack cocaine sentences. While none of these bills became law, 

a bill introduced by then-Senator Spencer Abraham that would have increased powder cocaine 

penalties (moving the trigger from 500 grams to 50 grams, thus creating a 10-to-i ratio) passed the 

Senate by one vote as an amendment to the Bankruptcy Reform Act of 2000.104 

E. Current Proposals to Amend 

The U.S. Sentencing Commission is in the process of reviewing the current cocaine 

sentencing policy. In the fall of 1999, seven new members of the Sentencing Commission were 

appointed by President Clinton and confirmed by the Senate. Since being seated, this new 

Commission has repeatedly expressed concern over current cocaine sentencing policy and the 

continued sentencing differential. The Commission formally sought comments from the public on 

January 17, 2002, on possible changes to cocaine sentencing policy. 

In addition, on December 12, 2001, Senators Leahy and Hatch, on behalf of the Senate 

Judiciary Committee, asked the Commission "to update its 1997 report for Congressional review to 

provide us with guidance as we continue to evaluate the appropriateness of the penalty differential 

between powder and crack cocaine."105 

On December 20, 2001, Senators Sessions and Hatch introduced a bill titled the Drug 

Sentencing Reform Act of 2001 that would, among other things, create a 20-to-i ratio by moving 

the triggers for the five-year mandatory minimum to 20 grams for crack and 400 grams for powder. 

The triggers for the 10-year mandatory minimum would be moved to 200 grams for crack and 4,000 

103 See U.S. Sentencing Commission, SpecialReport to the Congress.' Cocaine and Federal Sentencing Policy 

(April 1997). 104 See Bankruptcy Reform Act of 2000, H.R. 833, 106th Cong. § 1772 (2000). 105 See Letter from Senators Orrin Hatch and Patrick Leahy to Diana E. Murphy, Chair, U.S. Sentencing 

Commission (Dec. 12, 2001). 

18 
grams for powder. Additionally, the legislation reduces the five-year mandatory minimum sentence 

for simple possession of five grams of crack to one year.106 

PART III: DATA AND FINDINGS 

Proposals to amend the federal sentencing scheme for crack and powder cocaine offenses 

have focused on concerns that the 100:1 differential in the amounts of powder and crack cocaine that 

gives rise to five-and ten-year mandatory minimum sentences (and by proxy the Guideline's base 

offense levels) is unjustified, contrary to Congress's intent, and has a disproportionately harsh effect 

on Blacks. 

Some have argued that the 100:1 differential in powder and crack cocaine amounts at 

sentencing gives rise to sentences for crack cocaine that are far longer than sentences for powder 

cocaine.'07 A 1996 Washington Post editorial criticized the disparity between crack and powder 

cocaine treatment, and supported instead "doubling or tripling the sentence for crack instead of 

leaving the disparity at a hundred fold."108 However, in the extensive body of literature on the 

federal sentencing scheme for crack and powder, there is little analysis of the actual disparity in the 

sentences served by similarly situated defendants. 

In order to determine the actual ratio between crack and powder cocaine sentences, the Office 

of Legal Policy (with assistance from the Bureau of Justice Statistics and the Criminal Division's 

Office of Policy and Legislation) conducted a number of different analyses of the federal sentencing 

data for cocaine offenses collected by the U.S. Sentencing Commission between 1996 and 2000. 

The analyses described in this paper each attempt to compare the sentences for offenders where 

crimes involved like amounts of cocaine. Our analyses show that, examined on this basis, crack 

cocaine sentences are 1.3 to 8.3 times longer than powder sentences, depending on the amount of 

cocaine involved and the specific characteristics of the offender. In 2000, the average crack sentence 

was 1.6 times the average powder sentence. 

Two caveats: There are limitations to the analyses performed for this study. Most crack 

cocaine offenses involve between five grams and 1.5 kilograms of cocaine. Most powder cocaine 

offenses involve between 500 grams and 150 kilograms of cocaine. It is easy to compare these two 

offenses where the amount of drug overlaps (e.g. from 500 grams to 1.5 kilograms). At the margins, 

however, the comparison is more difficult because the number of defendants is so skewed. For 

instance, in the year 2000, there were 1,391 crack defendants convicted of trafficking less than 25 

grams of crack, compared to only 205 powder defendants. At the upper end of the spectrum, there 

were 3,181 defendants convicted for trafficking in more than 2 kilograms of powder, compared with 

106 See Drug Sentencing Reform Act of 2001, S. 1874, 107hl Cong. 

107 A recent article in the Los Angeles Times stated that "[djisparities built into the sentencing laws also provide 

for a 100-to- 1 difference between sentencing ofpowder and crack cocaine offenders." Lisa Richardson, Season ofHope: 

Inmates serving lengthy prison terms for drug offenses find that the last days of a presidency - when an outgoing chief 

has little to lose - may bring their best chance at clemency, L.A. Times, at El (Dec. 19, 2001). 

108 Editorial, Science and Sentence Disparity, Wash. Post, at A30 (Nov. 28, 1996). 

19 
488 crack defendants.'°9 In order to minimize the effect of this unequal distribution, we 

amalgamated data for 5 years (1996 to 2000) for many of our analyses. Nevertheless, the data at the 

upper and lower ends of the spectrums are less reliable because the sample sizes are so disparate. 

Additionally, our review of crack and powder sentences does not account for the effect of the 

exercise of prosecutorial discretion. The available data show that the number of crack and powder 

cocaine convictions increase sharply at the level at which the statutory mandatory minimum 

sentences apply for each drug. The number of convictions in each category is highest for base 

offense levels 26 and 32, the two levels that correspond with the five- and ten-year mandatory 

minimum sentences. (See Table C, below.) Although it is difficult to draw conclusions from this 

data alone, it is possible that Assistant U.S. Attorneys (AUSAs) aggregate drug amounts in order to 

reach the mandatory minimums. It is also possible that AUSAs decline to prosecute crimes 

involving amounts of drugs below the mandatory minimums. Because the effect of prosecutorial 

discretion is difficult to isolate, our models do not control for it.'1° 

Table C. Powder And Crack Cocaine Trafficking Convictions, by Base 

Offense Level, 2000. 

Crack Cocaine Powder Cocaine 

Base Offense Level Count Percent Count Percent 

12 32 0.7% 146 2.8% 

14 19 0.4% 67 1.3% 

16 40 0.8% 105 2.0% 

18 96 2.0% 143 2.7% 

20 77 1.6% 175 3.3% 

22 62 1.3% 86 1.6% 

28 420 8.7% 524 10.0% 

30 277 5.8% 398 7.6% 

32 176 24.5% 851 16.2% 

34 722 15.0% 649 12.4% 

36 395 8.2% 327 6.2% 

109 These numbers are based on the amount of cocaine reported in the U.S. Sentencing Commission's data files. 

However, for some cases the actual quantity of drug was not specified in the presentence investigation reports from which 

the Sentencing Commission extracts data. For instance, in 2000, the amount of drug was missing from 28.8% ofpowder 

convictions and 20.9% of crack convictions. However, for those cases were an actual quantity was not specified but the 

base offense level determined pursuant to U.S. 5G. § 2D 1.1 was specified, a quantity was estimated based on the quantity 

range associated with the applicable base offense level. The estimated quantity was determined using an algorithm that 

assumed a uniform distribution of cases within the guideline quantity range. 110 It should be noted that other factors, not readily quantified, may affect the sentencing ratios described herein 

20
Crack Cocaine Powder Cocaine 

Base Offense Level Count Percent Count Percent 

38 678 14.1% 441 8.4% 

Totals 4,805 100% 5,239 100% 

Data source: U.S. Sentencing Commission, 2000 Data File. 

Source: Office of Policy and Legislation, Criminal Division. 

The sections that follow analyze sentences for crack and powder cocaine in several ways. 

First we present a discussion of the general sentencing characteristics of crack and powder cocaine 

offenders. Then we present an analysis of actual crack and powder sentences by amount. Next we 

analyze the sentences for crack and powder by amount while attempting to control for certain special 

offender characteristics such as possession of a weapon or high criminal history level. Finally we 

present a brief analysis of the effect that certain proposed changes would have on current crack and 

powder sentences. 

A. General Characteristics of Crack and Powder Sentences 

In 2000, federal courts sentenced 59,486 defendants. Drug defendants represented the largest 

subcategory of federal defendants, comprising roughly 40% (24,179) of all individuals sentenced in 

2000. Nearly 97% of all drug defendants were sentenced for drug trafficking offenses. Of these 

defendants, 23% (5,239) were sentenced for trafficking in powder cocaine; 21.3% (4,805) were 

sentenced for trafficking crack cocaine. Over the preceding five years, the number of powder 

defendants increased by 20% and the number of crack defendants increased by roughly 10%. 

Table D. Number of and Powder Trafficking Defendants, 1996-20 00. 

Drug 1996 1997 1998 1999 2000

Powder 4350 4626 4665 4863 5239

Crack 4355 4414 4633 4914 4805

Data source: U.S. Sentencing Commission, 1996-2000 Data Files. 

Source: Office of Policy and Legislation, Criminal Division. 

The average sentence for trafficking in cocaine powder in the year 2000 was 74 months; the 

median sentence was 57 months. For crack cocaine traffickers, the average sentence was 117 

months; the median sentence was 96 months." The ratio of the average crack and powder sentences 

was 1.6:1 - in other words, crack defendants received an average sentence that was 1.6 times greater 

than the average powder sentence. 

Data from the Office of Policy and Legislation, Criminal Division. The average sentence is the sum of all 

sentences divided by the number of defendants sentenced. The median sentence represents the sentence at the 50th 

percentile of all defendants. 

21 
The majority of both crack and powder defendants received a sentence between 1 and 10 

years imprisonment (72.3% of all powder defendants and 52.2% of all crack defendants). However, 

33.8% of crack defendants received a sentence between 10 and 20 years, compared to only 15.8% 

of powder defendants. 

Table E. Drug Trafficking Defendants Sentenced by Primary Drug 

and Prison Length, 2000 

Crack Cocaine Powder Cocaine 

Imprisonment Count Percent Count Percent 

No prison 107 2.2% 246 4.7% 

Time served 24 0.5% 35 0.7% 

<1 56 1.2% 151 2.9% 

lto<5 1007 21.1% 2215 42.5% 

Sto<10 1486 31.1% 1554 29.8% 

lOto<20 1612 33.8% 824 15.8% 

2Oto<30 322 6.7% 122 2.3% 

30toLife 101 2.1% 39 0.7% 

Life 56 1.2% 30 0.6% 

Total 4771 100.0% 5216 100.0% 

Data source: U.S. Sentencing Commission, monitoring data file, 2000. 

Source: Office of Policy and Legislation, Criminal Division. 

Crack and powder cocaine defendants in 2000 were roughly equally likely to have been 

convicted for a trafficking offense (96.9% versus 96.4%), and received approximately equal numbers 

of upward and downward departures. However, powder cocaine defendants were convicted of 

possessing a larger amount of drugs than were crack defendants (3,400 grams vs. 83 grams)'12 

Powder cocaine defendants were also more like to receive a lower sentence based on their role in the 

offense (2 1.6% of powder defendants received this reduction, compared to only 8.3% of crack 

defendants). Finally powder defendants were more likely to benefit from "safety valve" exemptions 

from mandatory minimum penalties (31% of powder vs. 12.6% of crack). (See Appendix A for 

supporting data.) 

Conversely, crack cocaine defendants were more likely than cocaine powder defendants to 

have a criminal history. During 2000, approximately 29% of crack defendants were categorized in 

the lowest guideline criminal history category, I, compared to 61% of cocaine powder defendants. 

Crack defendants were three times as likely to be categorized in the highest criminal history 

category, VI, as were cocaine powder defendants (17% vs. 5.6%). (See Appendix A for supporting 

fl2 These numbers represent the median amounts, not the average amounts, of drugs.. 

22 
data.) Crack defendants were also twice as likely to carry a weapon - 20.9% received an 

enhancement for carrying a weapon, compared to only 10.1% of powder defendants.113 

B. Comparison by Amount of Drug 

As stated above, crack defendants received an average sentence in 2000 that was 1.6 times 

greater than the average powder sentence. To further examine the relationship between the sentences 

imposed on crack and powder defendants, we asked the Bureau of Justice Statistics to compare the 

sentences for crack and powder cocaine by the amount of drug underlying each conviction - in other 

words, where offenders in each group committed crimes involving the same amount of drugi'4 

The results, listed in Table F, below, show that crack defendants received higher average 

sentences than powder defendants, and that the ratio of crack to powder sentences was greater for 

lower amounts of cocaine than for higher amounts of the drug. For instance, in 2000, crack 

defendants convicted of trafficking in less than 25 grams of cocaine received an average sentence 

that was 4.8 times longer than the sentence received by an equivalent powder defendant. However, 

at the upper end of the spectrum, defendants convicted of trafficking in between 15 and 49.9 

kilograms of crack received an average sentence that was only 2.4 times longer than the average 

powder sentence for an equivalent amount of drug. (In the middle of the spectrum (400 to 499 

grams), the ratio of the two average sentences was 3.4:1). 

Table F. Average Prison Term Imposed on Trafficking Defendants by Type of 

Drug and Drug Quantity, 2000. 

Crack Cocaine Powder Cocaine Ratio 

Number Prison Number Prison Crack: 

Drug quantity term term Powder 

Lessthan25g 1391 64.8 205 13.6 4.8:1 

25-49.9g 579 89,1 78 20.1 4.4:1 

50-99.9g 726 116.4 115 24.8 4.7:1 

l00-199.9g 641 116.5 153 26.3 4.4:1 

200 -299.9 g 252 123.4 177 30.3 4.0:1 

300-399.9g 156 138.2 87 34.2 4.0:1 

400-499.9g 137 138.2 150 40.4 3.4:1 

113 Data from the United States Sentencing Commission, 2000 Data File, compiled by the Office of Policy 

Legislation, Criminal Division, U.S. Department of Justice. 

114 For those cases in which the actual quantity of drug was not specified in the presentence investigation 

reports, a quantity was estimated based on the quantity range associated with the applicable base offense level. See supra 

n.108. 

23 
500g-1.99kg 605 170.5 1186 49.4 3.5:1 

2 - 3.49 kg 196 207.0 536 61.4 3.4:1 

3.5 - 4.99 kg 132 213.9 381 70.1 3.1:1 

5 14.99 kg 93 244.5 850 82.9 2.9:1 

15 49.99 kg 67 239.9 636 101.7 2.4:1 

50-149.99kg --- --- 316 123.7 

150 kg or more --- --- 462 170.2 

Data source: U.S. Sentencing Commission, monitoring data file, 2000.

Source: Bureau of Justice Statistics, Federal Justice Statistics Program.

C. Comparison by Specific Offender Characteristics 

Finally we examined the data by isolating certain offender characteristics (such as criminal 

history level and whether or not the individual had a gun) to determine what effect these 

characteristics had on crack and powder sentences. To do so, we aggregated the sentencing data for 

the years 1996 through 2000 and looked at sentences for similar amounts of crack and powder 

cocaine according to specific offender characteristics. 

However, because the Sentencing Commission did not begin collecting data on the specific 

amount of cocaine for each conviction until 1996, and because even the most recent data is missing 

specific drug amounts for at least 20% of convictions,"5 we compared the data using the base offense 

levels (BOL5) as proxies for the amounts. As an example, we equated base offense levels 28 and 

30 for crack (which correspond to between 20 and 50 grams) with base offense level 14 for powder 

(which corresponds to 25 to 50 grams). The rough outline of this structure is as follows: 

Table G. Base Offense Levels Equated by Amount. 

Crack Range Crack BOL Powder Range Powder BOL 

<20g 12-26 <25g 12 

20gto<50g 28&30 25gto<50g 14

S0gto<150g 32 SOgto<200g 16&18

lSOgto<500g 34 200gto<500g 20-24

SOOgto<1.Skg 36 SOOgto<2kg 26

>1.5kg 38 >2kg 28-38 

' For 2000, 28.8% of powder convictions were missing amount data and 20.9% of crack convictions were 

missing amount data. The number of convictions for which amount data is not available has been fairly consistent for 

each of the five years in which such data has been collected. 

24 
This comparison has several limitations. First, the amount of cocaine in each base offense 

level is not precisely equivalent (in other words, the amount of crack in BOL 36 is not precisely 

equivalent to the amount of powder in BOL 26). Secondly, because the scale for crack is so much 

lower than the scale for powder, the outlying categories compare a large set of data to a much smaller 

and less diverse set of data. For instance, defendants convicted of trafficking more than 2 kilograms 

of powder cocaine fall between base offense levels 28 and 38 and number 14,463. This subset of 

data was compared to all defendants convicted of trafficking more than 1.5 kilograms of crack, all 

3,701 of whom fell into base offense level 38. The same problem in reverse (better crack data than 

powder data) is true at the lower end of the guideline ranges. 

Nonetheless, despite the limitations of this data, this analysis helps to clarify the effect of 

certain offender characteristics on overall sentences. This analysis, shown in Table H, demonstrates 

that the ratio between the average sentences for crack and powder cocaine decreases as the amount 

of drug increases. For instance, for the lowest category of drug amount, the average crack sentence 

was 4.8 times longer than the average powder sentence. For the highest category of drug amount, 

the average crack sentence was 2.1 times longer than the average powder sentence. 

We then compared crack and powder defendants who possessed a weapon. For those 

offenses where the defendant possessed a weapon, the ratio of crack to powder sentences was less 

than the average ratio. For the lowest category of drug amount, the average sentence for crack 

defendants who possessed a weapon was 2.9 times longer than the average sentence for similarlysituated powder defendants. For the highest category of drug amount, the average sentence for crack 

defendants who possessed a weapon was only 1.6 times longer than the average sentence for similarsituated powder defendants. 

We also compared crack and powder offenders by amount and criminal history categories. 

For offenders with a high criminal history category, the ratio between the sentences was also lower 

than the ratio between the average crack and powder sentences. Crack defendants with criminal 

history level VI received an average sentence that ranged from 1.6 to 1.3 times longer (depending 

on the amount of drug) than the average sentence for similarly-situated powder defendants. 

Conversely, the ratio between crack and powder sentences for offenders with a low criminal 

history levels was higher. The ratio between average crack and powder sentences for the lowest 

category of drug amount and criminal history category I was 8.3:1. (This disparity affected 1,637 

(or 7%) of the 22,896 crack defendants examined in this study.) The ratio of crack to powder 

sentences was only 2:1 for offenders in the highest category of drug amount and the lowest criminal 

history category. (The complete results of this analysis can be found in Appendix B.) 

25
Table H. Ratio of Average Crack to Average Powder Sentences by Equivalent BOL, Controlling for Specific

Characteristics, 1996-2000.

Crack 

Amount 

Range 

Powder 

Amount 

Range 

Average 

Ratio 

Defendants 

with 

Weapons 

Defendants 

without 

Weapons 

Defendants 

with 

Criminal 

History I 

Defendants 

with 

Criminal 

History VI 

<20g <25g 4.8:1 2.9:1 5.8:1 8.3:1 1.6:1 

2Oto<50g 25to<50g 4.4:1 3.1:1 4.8:1 5.9:1 2.1:1 

5Oto<150g 5Oto<200g 4.9:1 3.6:1 5.2:1 5.4:1 2.2:1 

l5Oto<500g 200to<500g 3.8:1 3:1 3.7:1 3.5:1 2.2:1 

SOOgto<l.Skg SOOgto<2kg 3.2:1 2.3:1 3.2:1 3.1:1 1.7:1

>1.5kg >2kg 2.1:1 1.6:1 2:1 2:1 1.3:1

Data source: U.S. Sentencing Commission, 1996-2000 Data Files.

Source: Office of Policy and Legislation, Criminal Division

D. Brief Analysis of Proposals to Amend the Federal Sentencing Scheme 

In order to make a rough estimate of the effect that the proposals for changing the ratio of 

crack and powder cocaine would have on the resulting sentences, we also created a simulated 

sentencing model. This was done by adjusting known parameters applied at sentencing and 

theoretically re-sentencing defendants based on the adjusted parameters. Resentencing defendants 

convicted of trafficking crack cocaine to reflect varying ratios of cocaine powder to crack cocaine 

involved changing the guideline base offense levels and the applicable statutory minima to reflect 

the adjusted quantity thresholds. Table I, below, describes the guideline base offense levels and the 

corresponding quantity thresholds corresponding to the various quantity ratios examined. All other 

sentencing factors - including the actual quantity of drug involved - remained constant in the model. 

(See Appendix C for further information on this model.) 

26
Table I. Quantity Thresholds for Crack Cocaine Corresponding to Various Quantity Ratios 

Between Cocaine Powder and Crack Cocaine. 

Guideline Minimum crack quantity threshold 

Powder ______________________________________________________________ 

base offense 

level 100:1 

(2D1.l) (actual) 50:1 20:1 10:1 5:1 2:1 1:1 ________ 

12 None None None None None None None None 

14 25g 250mg 500 l.25g 2.5g 5g 12.5g 25g 

16 50g 500mg lg 2.5g 5g lOg 25g 50g 

18 lOOg ig 2g 5g lOg 20g 50g lOOg 

20 200g 2g 3g lOg 20g 40g lOOg 200g 

22 300g 3g 4g 15g 30g 60g 150g 300g 

24 400g 4g 5g 20g 40g 80g 200g 400g 

26 500g 5g 20g 25g 50g lOOg 250 kg 500g 

28 

30 

2kg 20g 

3.5 kg I 35g 35g 

lOOg 

50g 

200g 

175g 

400g 

350g 

1kg 

700g 

2kg 

1.75 

32 5kg SOg 150g 250g SOOg 1kg 2.5kg 5kg 

34 15kg 150g 500g 750g 1.5kg 3kg 7.5kg 15kg 

36 50kg 500g 1.5kg 2.5kg 5kg 10kg 25kg 50kg 

38 1501cc 1.5kg 3kt 7.5kg 15kg 30kg 75kg 15Ok 

Source: Office of Legal Policy 

Under current practice, defendants convicted of trafficking crack cocaine received an average 

prison sentence of 120 months during 1999 and 117.6 months during 2000.116 If federal sentencing 

law and policy were changed to reflect a different quantity ratio, average prison sentences for crack 

cocaine defendants could - assuming constant quantities of drugs - range from approximately 45 

months, at a quantity ratio of 1:1, to 111 months, at a quantity ratio of 50:1 h17 At quantity ratios of 

20:1 and lower, all crack defendants would receive a reduction in the sentence imposed. Changes 

to the ratio of crack to powder cocaine amounts used in determining base offense levels would have 

the following effects: 

" Reflects the sentence imposed on those defendantsincluded in the model, 4,867 during 1999 and 4,691 during 2000. Observations were 

excluded from the model if complete guideline application and/or sentencinginformation was not available. 

117 Estimates represent combined 1999-2000 data. 

27 
Table J. Simulated Sentencing Model: Estimates of Prison Term to be Imposed on Crack 

Defendants Convicted in the Federal Courts of Trafficking Crack Cocaine, 1999-2000. 

1999 2000 

Ratio of 

cocaine 

powder to 

crack cocaine 

Average 

prison term 

imposed 

(mos.) 

Proportion 

of 

defendants 

impacted 

Ratio to 

Powder 

(average 

sentence is 

77.8) 

Average 

prison 

term 

imposed 

(mos.) 

Proportion 

of 

defendants 

impacted 

Ratio to 

Powder 

(average 

sentence is 

74.8) 

100:1 (actual) 120.0 1.5:1 117.6 1.6:1 

50:1 112.4 56% 1.4:1 109.1 57% 1.5:1 

20:1 95.6 99% 1.2:1 91.2 100% 1.2:1 

10:1 80.7 99% 1:1 77.0 100% 1:1 

5:1 70.6 100% 0.9:1 67.2 100% 0.9:1 

2:1 56.2 100% 0.7:1 53.0 100% 0.7:1 

1:1 46.3 100% 0.6:1 43.1 100% 0.6:1 

Number of 

defendants' 4,867 4,691 

Notes: 

1. Excludes observations for which complete guideline application and/or sentencing information

was not available.

Data source: U.S. Sentencing Commission, monitoring data file, 1999- 2000.

Source: Bureau of Justice Statistics, Federal Justice Statistics Program.

It is important to note that this model cannot account for changes in law enforcement or 

prosecutorial behavior. 

Moreover, it is not clear that changing the ratio will have any effect on the number of 

minorities sentenced for committing cocaine crimes (although it would effect the number of months 

served by a proportion of those defendants). A Sentencing Commission analysis using 1999 data 

showed that Hispanics (who accounted for 44.0% of powder cocaine cases in 1999) would constitute 

42.9% of cases affected by reducing the mandatory minimum trigger from 500 grams to 400. Blacks, 

who comprised 35.7% of all powder offenders, constituted 31.6% of affected cases; Whites, who 

comprised 18.8% of all offenders, constituted 24.3% of affected cases. 

Reductions in crack offense penalties would primarily affect Black defendants. Based on 

FYi 999 data, the Sentencing Commission estimates that if crack mandatory minimum triggers were 

moved from five grams to 20 grams, 85.6% of defendants affected by the change would be Black. 

(In FY 1999, 84.8% of convicted crack offenders were Black.) 

28 
CONCLUSIONS: 

Controlling for like amounts of cocaine, in 2000, crack defendants convicted of 

trafficking in less than 25 grams of cocaine received an average sentence that was 4.8 

times longer than the sentence received by an equivalent powder defendant. 

However, at the upper end of the spectrum, the average sentence for a defendant 

convicted of trafficking in between 15 and 49.9 kilograms of crack was only 2.4 

times longer than the average sentence for a similarly-situated powder defendant. (In 

the middle of the spectrum (400 to 499 grams), the ratio of the two sentences was 

3.4:1). 

For defendants who possessed weapons, the ratio between average crack and powder 

sentences for lower amounts of cocaine was 2.9:1. For the highest amounts of 

cocaine, the ratio was only 1.6:1. Defendants who possessed weapons had less of a 

disparity in their sentences. 

For defendants with the highest criminal history levels, the average sentence 

for crack defendants ranged from 1.6 to 1.3 times longer (depending on the 

amount of cocaine) than the average sentence for similarly-situated powder 

defendants. 

For defendants with the lowest criminal histories, the ratio between average 

crack and powder sentences for the lowest amounts of drug 8.3:1. (This 

disparity affected 1,637 (or 7%) of the 22,896 crack defendants examined in 

this study.) But for offenders convicted of trafficking in higher amounts of 

cocaine, the ratio of average crack to powder sentences was only 2:1. 

The average sentence for trafficking in powder cocaine in 2000 was 74 months; the 

average sentence for trafficking in crack cocaine was 117 months. The ratio of the 

average crack and powder sentences was 1.6:1. 

29
Appendix A. Selected sentencing characteristics of defendants convicted in the federal 

courts for crack and powder cocaine offenses, 1999-2000. 

CHARACTERISTIC CRACK POWDER 

Weight of drugs 

Average 1.6kg 85.0 kg 

Median (SOth percentile) 83 g 3.4 kg 

Criminal History Category 

I

28.9% 61.3% 

II

13.0% 12.4% 

III

21.9% 13.2% 

IV

12.0% 5.1% 

V

7.2% 2.4% 

VI

17.0% 5.6% 

Type of drug offense 

Trafficking

96.9 % 96.4 % 

Communication facility

1.7% 2.7% 

Simple possession

1.4 % 0.9 % 

Departure Status 

Upward

0.2% 0.2% 

Substantial assistance

30.6 % 29.4 % 

Other downward

8.1 % 8.9 % 

Mandatory minimum based on drug quantity (21 U.S.C. § 841)

82.0 % 75.7 % 

Mandatory minimum for firearm use or possession (18 U.S.C. §

924(c))

4.3 % 2.5 % 

Guideline enhancement for weapon use or possession (U.S.S.G.

§2D1.1(b)(1))

16.6% 8.6% 

'Safety-valve' exemption from mandatory penalties (18 U.S.C. §

3 553(e)) 

12.6% 31.0% 

Acceptance of responsibility (U.S.S.G. §3El.l) 85.4% 88.3 % 

Obstruction of justice (U.S.S.G. Ch.3, Pt.C.) 4.5 % 3.9 % 

Mitigating role adjustment (U,S,S,G. §3B1.2) 8.3 % 21,6% 

Aggravating role adjustment (U.S.S.G. §3131.1) 7.4% 7.9% 

Number of defendants 5,012 5,345 

Notes: 

1. Excludes observations for which complete guideline application and/or sentencing information was not

available.

Data source: U.S. Sentencing Commission, Monitoring data file, fiscal year

Source: Bureau of Justice Statistics, Federal Justice Statistics Program.
Appendix B. Special Offender Characteristics by Amount, 1996 - 2000. 

Crack Powder 

BOL BOL 

(Range) (Range) 

Average 

Crack 

Sentence 

Average 

Powder 

Sentence Ratio 

Number of 

Crack 

Defendants 

Number of 

Powder 

Defendants 

12-26 12 

(0-20 g) (0-25 g) 58 12 4.8:1 5,194 527 

No Weapon 52 9 5.8:1 4,292 462 

Weapon 90 31 2.9:1 793 54 

No Departure 67 12 5.6:1 3,473 370 

SubstantialAssistance 38 9 4.2 1,271 113 

Safety Valve 31 - -- 502 -­

Other Downward Departure 47 29* 1.6:1 360 33 

Criminal Historyl 33 4 8.3:1 1,637 321 

Criminal History II 44 10 4.4:1 737 65 

Criminal History III 51 11 4.6:1 1,088 65 

Criminal History IV 62 15* 4.1:1 623 26 

Criminal History V 75 16* 4.7:1 339 10 

Criminal History VI 126 78* 1.6:1 770 40 

Notes.' 

* = n<50 

Data source: US. Sentencing Commission, monitoring data file, 1996-2000. 

Source.' Office of Policy and Legislation, Criminal Division. 
Crack Powder 

BOL BOL 

(Range) (Range) 

Average 

Crack 

Sentence 

Average 

Powder 

Sentence Ratio 

Number of 

Crack 

Defendants 

Number of 

Powder 

Defendants 

28-30 14 

(20-50 g) (25-50 g) 84 19 4.4:1 3,111 315 

No Weapon 77 16 4.8:1 2,495 265 

Weapon 115 37* 3.1:1 548 44 

No Departure 99 18 5.5:1 1,895 214 

SubstantialAssistance 55 19 2.9:1 913 72 

Safety Valve 40 -- -- 46 -­

Other Downward Departure 69 25* 2.8:1 254 25 

Criminal Historyl 53 9 5.9:1 991 161 

Criminal History II 67 17 3.9:1 456 51 

Criminal History III 81 16 5:1 659 44 

Criminal HistoiylV 91 25* 3.6:1 330 23 

Criminal History V 107 38* 2.8:1 191 6 

Criminal History VI 152 72* 2.1:1 484 30 

Notes.' 

* = n<50 

Data source.' US. Sentencing Commission, monitoring data file, 1996-2000. 

Source.' Office of Policy and Legislation, Criminal Division. 
Crack Powder 

BOL BOL 

(Range) (Range) 

Average 

Crack 

Sentence 

Average 

Powder 

Sentence Ratio 

Number of 

Crack 

Defendants 

Number of 

Powder 

Defendants 

32 16-18 

(50-150 g) (50-200 g) 117 24 4.9:1 4,956 1,175 

No Weapon 109 21 5.2:1 3,825 1,032

Weapon 152 42 3.6:1 980 124

No Departure 144 27 5.3:1 2,919 761 

Substantial Assistance 73 14 5.2:1 313 313 

Safety Valve 58 5* 11.6:1 862 4 

Other Downward Departure 98 26 3.8:1 332 78 

Criminal History 1 76 14 5.4:1 1,628 643 

Criminal History II 102 18 5.7:1 710 170 

Criminal History III 113 25 4.5:1 1,003 173 

Criminal History IV 131 28 4.7:1 570 66 

Criminal History V 148 44* 3.4:1 258 35 

Criminal History VI 202 90 2.2:1 787 88 

Notes: 

* = n<50 

Data source: US. Sentencing Commission, monitoring data file, 1996-2000. 

Source: Office of Policy and Legislation, Criminal Division. 
Crack Powder 

BOL BOL 

(Range) (Range) 

Average 

Crack 

Sentence 

Average 

Powder 

Sentence Ratio 

Number of 

Crack 

Defendants 

Number of 

Powder 

Defendants 

34 20-24 

(150-500 g) (200-500 g) 133 35 3.8:1 3,785 1,809 

No Weapon 123 33 3.7:1 2880 1,594 

Weapon 168 56 3:1 818 184 

No Departure 169 42 4:1 2,082 1,113 

SubstantialAssistance 82 23 3.6:1 1,381 516 

Safety Valve 67 19 3.5:1 721 30 

Other Downward Departure 117 27 4.3:1 236 153 

Criminal History I 91 26 3.5:1 1,379 952 

Criminal History II 119 30 4:1 521 270 

Criminal History III 136 34 4:1 801 280 

Criminal History IV 152 50 3:1 358 133 

Criminal History V 177 57* 3.1:1 189 52 

Criminal History VI 220 100 2.2:1 537 122 

Notes. 

* = n<50 

Data source: US. Sentencing Commission, monitoring data file, 1996-2000. 

Source. Office of Policy and Legislation, Criminal Division. 
Crack Powder 

BOL BOL 

(Range) (Range) 

Average 

Crack 

Sentence 

Average 

Powder 

Sentence Ratio 

Number of 

Crack 

Defendants 

Number of 

Powder 

Defendants 

36 26 

(500g-1.5kg) (500 g- 2 kg) 158 50 3.2:1 2,149 5,228 

No Weapon 146 46 3.2:1 1,561 4,618 

Weapon 197 84 2.3:1 524 493 

No Departure 210 60 3.5:1 1,091 3,221 

SubstantialAssistance 100 31 3.2:1 898 1,492 

Safety Valve 73 28 2.6:1 333 2,164 

Other Downward Departure 132 38 3.5:1 113 418 

Criminal Histoiyl 113 37 3.1:1 780 3,196 

Criminal History II 154 53 2.9:1 282 645 

Criminal History III 166 58 2.9:1 440 743 

Criminal History IV 193 68 2.8:1 217 228 

Criminal History V 182 82 2.2:1 120 109 

Criminal History VI 232 138 1.7:1 310 307 

Notes: 

* = n<50 

Data source: US. Sentencing Commission, monitoring data file, 1996-2000. 

Source: Office of Policy and Legislation, Criminal Division. 
Crack Powder 

BOL BOL 

(Range) (Range) 

Average 

Crack 

Sentence 

Average 

Powder 

Sentence Ratio 

Number of 

Crack 

Defendants 

Number of 

Powder 

Defendants 

38 28-38 

(>1.5 kg) (>2 kg) 208 99 2.1:1 3,701 14,463 

No Weapon 180 91 2:1 2,359 12,423 

Weapon 261 166 1.6:1 1,246 1,580 

No Departure 291 127 2.3:1 1,815 4,470 

Substantial Assistance 120 62 1.9:1 1,621 4,806 

Safety Valve 86 57 1.5:1 410 5396 

Criminal History I 166 83 2.2:1 1,241 9,517 

Criminal History II 199 105 1.9:1 495 1,659 

Criminal History III 216 121 1.8:1 810 1,701 

Criminal History IV 238 137 1.7:1 406 643 

Criminal History V 241 145 1.7:1 209 236 

Criminal History VI 264 196 1.3:1 539 706 

Notes: 

*

= n<50

Data source: US. Sentencing Commission, monitoring data file, 1996-2000. 

Source: Office of Policy and Legislation, Criminal Division. 
Appendix C: Simulated sentencing model 

The effect of the 100:1 quantity ratio between applicable sentences imposed on defendants 

convicted of trafficking crack cocaine can also be measured by adjusting known parameters applied at 

sentencing and theoretically re-sentencing defendants based on the adjusted parameters. For instance, for 

defendants sentenced under the Federal sentencing guidelines, the applicable guideline sentencing range 

can be adjusted through such factors as the guideline base offense level, specific offense characteristics, 

criminal history category, and/or applicable statutory minima and maxima. 

One of the fundamental concepts of the simulated sentencing model is the method for re-sentencing 

defendants. Assuming a starting point of the midpoint of the applicable guideline range, the sentencing 

court fashions as sentence within the guideline range - upward or downward - to reflect the specific 

circumstances of the case. Additionally, if the applicable guideline range does not adequately reflect the 

circumstances of the case, the sentencing court may fashion a sentence outside of the guideline range 

through a departure. Accordingly, the position relative to the guideline range, or D, reflects the exercise of 

judicial discretion. Algebraically, D is expressed as ­

S - GLMJN D = (Equation 2) GL - GLMJN 

where: S = the prison term imposed 

GLM,N is the minimum of the effective guideline sentencing range 

GLM is the maximum of the effective guideline sentencing range 

Following adjustments to applicable sentencing parameters, a new sentence must be assigned to 

reflect the changed circumstances. In most instances, the new sentence, SI, is a reflection of the actual 

sentence in the new guideline range. Algebraically, is expressed as ­

S" = GLJJT + (GL - GLN) D (Equation 3)

where:­ GLJIN is the minimum of the adjusted guideline sentencing range 

GLMAXi5 the maximum of the adjusted guideline sentencing range 

For example, if a defendant originally received a sentence of 65 months in the guideline range of 

63 to 78 months, the defendant would receive a sentence of 42 months in the guideline range of 41 to 51 

months. 

In certain circumstances, however, the proportional re-sentencing model (equation # 3) will not 

accommodate the changed circumstances such as in those cases where the defendant was originally 

sentenced to life in prison and/or the guideline sentencing range included life imprisonment as a sentencing 

option, sentences within Zones A, B, and C of the guideline sentencing table, and certain departure 

sentences. The model accommodates these circumstance as follows ­

A. For defendants who originally received life imprisonment and the adjusted guideline sentencing 

range does not include life, the defendant is re-sentenced to the mid-point of the adjusted range. 

For defendants who did not receive life imprisonment and the new guideline range includes life, the 

defendant will be re-sentenced to life if the original sentence was above the midpoint of the 

guideline range; otherwise the defendant will receive a sentence proportionate to the original 

sentence. 
B. Sentences within Zones A, B, and C of the guideline sentencing table pose a unique problem due 

to the availability of probationary sentences and alternatives to incarceration such as home 

confinement, community confinement, and intermittent confinement. For defendants re-sentenced 

to a sentencing range within Zones A, B, and C, the new sentence reflects the average term of 

imprisonment actually imposed on defendants sentenced within that guideline range. 

C. In the case of non-substantial assistance departures, it was assumed that the sentencing court 

fashioned the particular sentence for a specific reason. Consequently, in these cases, new 

sentence would not differ from the original sentence except where (1) the new guideline range is 

below the original sentence in which case the defendant would receive a sentence at the guideline 

minimum, and (2) the new guideline range is above the original sentence in which case the 

defendant would receive a sentence at the guideline maximum.