ACSBlog: The Blog of the American Constitution Society

The Supreme Court today agreed to hear a challenge to the crack/powder disparity, which punishes possession of crack cocaine up to 100 times more severely than possession of powder cocaine.  A recent ACS Issue Brief by Nkechi Taifa provides a primer on this issue:

The federal criminal penalty structure for the possession and distribution of crack cocaine is one hundred times more severe than the penalty structure relating to powder cocaine. Possession of five grams of crack cocaine carries the same penalty as distribution of 500 grams of powder cocaine. This is commonly referred to as a “100- to-1 quantity ratio.” For example, a first time offender tried in federal court and found in possession of five grams of crack cocaine would be subject to a mandatory felony sentence of at least five years in prison without parole. Possession of the same amount of powder cocaine, a misdemeanor, requires no prison time. A person convicted of fifty or even 499 grams of powder cocaine would face a maximum penalty of one year in prison. It takes trafficking in 500 grams of powder cocaine to receive the same sentence as one convicted of simple possession of five grams of crack cocaine.

In its Special Report to Congress, the United States Sentencing Commission pronounced that “federal sentencing data leads to the inescapable conclusion that blacks comprise the largest percentage of those affected by the penalties associated with crack cocaine.” Nationwide statistics compiled by the Commission revealed that blacks were more likely to be convicted of crack cocaine offenses, while whites were more likely to be convicted of powder cocaine offenses. In 1994, 96.5% of those sentenced federally for crack cocaine offenses were non-white. The Commission’s 2000 Source of Federal Sentencing Statistics revealed that 84.2% of blacks were convicted of crack cocaine cases, as compared with 5.7% whites. Asserting that these statistics do “not mean … that the penalties are racially motivated,” the Commission nevertheless found that the high percentage of blacks convicted of crack cocaine offenses is “a matter of great concern.”

UPDATE: The Fourth Circuit's decision below was a single page per curiam opinion.  Here is the substance of that decision:

Derrick Kimbrough pleaded guilty to distributing fifty or more grams of crack cocaine, distributing cocaine, conspiring to distribute fifty grams or more of crack cocaine, and possessing a firearm in connection with a drug trafficking crime. The sentencing guideline range was 168 to 210 months imprisonment for the drug counts and 60 consecutive months for the firearm count. Based, in part, on the district court's disagreement with the sentencing disparity for crack and powder cocaine violations, the district court sentenced Kimbrough to 120 months on each of the three drug violations, to be served concurrently, and sixty months on the firearms charge, to be served consecutively. According to our recent decision in, a sentence that is outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses. Because the district court concluded that the crack to powder cocaine disparity warranted a sentence below the applicable sentencing guideline range, we are constrained to vacate Kimbrough's sentence and to remand the case for resentencing. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid in the decisional process.