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For nearly a quarter of a century, federal law penalized crack cocaine offenses at a 100-to-l sentencing ratio compared to powder cocaine offenses. The Anti-Drug Abuse Act of 1986 treated one gram of crack as equivalent to one hundred grams of powder cocaine for sentencing purposes, making crack the only drug that carried a five-year mandatory minimum federal sentence for first-time possession.' The 100-to-l crack sentencing ratio was widely criticized when crack offenders, who were overwhelmingly black, began receiving much longer sentences than powder cocaine offenders, who represent a broader racial range. In the Fair Sentencing Act of 2010, which President Barack Obama signed into law in August 2010, Congress lowered the 100-to-l sentencing disparity between crack cocaine and powder cocaine to a ratio of 18 to I.2 While this reduction does not eliminate the crack/powder cocaine disparity, the Fair Sentencing Act is a breakthrough after more than twenty years of sentencing under the 100-to-l ratio. This event prompts this essay's appraisal of the enactment of the crack sentencing laws and the long road to convincing Congress to change them.
While this nation has made tremendous racial progress since the civil rights era, the crack laws highlight a key divide in views about the extent of equal justice that continued progress requires. For those persons who embrace a post-racial concept of America, the crack cocaine laws' disparate impact on blacks is legally irrelevant because that impact was not originally rooted in (or at least influenced by) discriminatory intent by Congress.3 That view posits that racial or economic characteristics - or even societal discrimination - may explain the crack cocaine disparity, but in either case, Congress has no obligation to eliminate it. Others see post-racialism as at best aspirational, or even, taken to its limits, an undesirable goal for a heterogeneous nation. At either end of the post-racial continuum, the crack sentencing laws test the legal system's definition of equal justice in the twenty-first century.
This Article begins with a brief background of the racialized history of cocaine regulation in the United States.4 The events that motivated Congress to enact the crack cocaine provisions and the impact of the crack sentencing laws on black defendants are the subject of Part II. Part III discusses the...