DRUGS; SENTENCING;

DRUG ABUSE AND CONTROL;

OLR Research Report


October 3, 2003

 

2003-R-0700

STATE COCAINE SENTENCING POLICIES

By: Sandra Norman-Eady, Chief Attorney

You asked for the number of states with sentencing policies that differentiate between crack and powder cocaine.

SUMMARY

The U. S. Sentencing Commission, created by Congress in 1984 to develop federal sentencing guidelines, collect crime and sentencing data, and serve as a resource on sentencing policy, surveyed the 50 states, District of Columbia, and Virgin Islands to determine whether and to what extent their sentencing laws treat cocaine offenders differently based on the form of the drug involved.

In a 2002 report on state sentencing policies, the commission revealed 14 states with laws that make some distinction between crack and powder cocaine in their penalty schemes. These states are: Alabama, Arizona, California, Connecticut, Iowa, Maine, Maryland, Missouri, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, and Virginia. We have attached OLR Report 99-R-0660, which summarizes crack/powder cocaine disparities in the federal sentencing guidelines.

In most of these states the distinction appears in the quantity of the drug relative to the penalty, resulting in crack cocaine offenders receiving harsher sentences than their powder cocaine counterparts. For example, a non-addicted drug dealer in Connecticut faces the same penalty for selling one ounce of powder cocaine as he does for selling . 5 grams of crack. Instead of sentencing distinctions, some of the states impose a mandatory minimum sentence for crack, but not powder cocaine. And still others, like Alabama, allow powder, but not crack, cocaine defendants to participate in a pretrial drug diversion program.

To understand why supporters of these distinctions argue that they are necessary, it is important to understand the pharmacology of the drug and how it is used. Powder cocaine is produced from a mixture of hydrochloric acid and the coca paste that comes from the leaves of the coca plant. Crack cocaine is made by cooking a mixture of powder cocaine, baking soda, and water until it forms a hard substance. These “rocks” are then broken into pieces and sold, usually in small, affordable quantities. Each gram of powder produces approximately . 89 grams of crack.

Crack cocaine is always smoked, giving the user a fast and intense, but short, high. Powder cocaine is usually snorted but may be dissolved in water and injected into a vein. When snorted, the powder cocaine gives the user a slower, less intense, but longer lasting, high. (Injected cocaine produces a similar high to smoked cocaine). The intensity of the high is often linked to the user’s volatile behavior.

CRACK V. POWDER COCAINE—DISPARITY IN SENTENCING

In 2002, the U. S. Sentencing Commission surveyed state cocaine sentencing policies, which consisted of reviewing state narcotics statutes addressing cocaine penalties and contacting each state’s sentencing commission or its counterpart. The commission included the survey results in a report entitled Special Report to Congress: Cocaine and Federal Sentencing Policy.

Table 1 shows the 14 states with laws that make some distinction between crack and powder cocaine in their penalty schemes. The disparity appears greatest in Iowa where the drug quantity ratio is 100-to-1 for determining when maximum penalties apply. In this state, possession of more than five kilograms of powder cocaine or more than 50 grams of crack is punishable by a maximum penalty of 50 years imprisonment. Possession of more than 500 grams of powder or more than five grams of crack carries a maximum penalty of 25 years imprisonment.

TABLE 1: DISTINCTIONS BETWEEN CRACK AND POWDER COCAINE IN STATE SENTENCING SCHEMES

States

Summary of Statutory Differences

Alabama

The penalties for crack and powder cocaine are the same but the state uses a 10-to-1 drug quantity ratio to determine eligibility for the drug abuse diversion program. The penalties range from a mandatory minimum three years imprisonment for between 28 and 500 grams to a mandatory 15-year term for one to 10 kilograms. To be eligible for the program, the quantity of powder cocaine cannot exceed five grams. The maximum quantity of crack cocaine is 500 milligrams (one-half gram).

Arizona

Uses a drug quantity ratio of 12-to-1 to distinguish powder and crack cocaine offenses. Nine grams of powder cocaine or 750 milligrams of crack is the threshold for trafficking, which carries a presumptive sentence of five years imprisonment.

California

Sentences for possession or possession with intent to sell are treated differently based on the form of cocaine involved. Crack cocaine offenders are subject to a three, four, or five-year term while powder cocaine offender are subject to two, three, or four-year terms. Absent mitigating or aggravating factors, offenders receive the middle sentence. Although the ranges fluctuate, a crack cocaine offender in effect serves 1. 25 to 1. 5 times longer than a powder cocaine offender.

Connecticut

Uses a 56. 7-to-1 drug quantity ratio to distinguish trafficking offenses involving crack and powder cocaine. The penalty for selling one ounce or more of powder cocaine or . 5 grams of crack is five years to life imprisonment.

Iowa

Uses a 100-to-1 drug quantity ratio to distinguish offenses involving crack and powder cocaine. Instead of triggering mandatory minimum penalties, the ratio is reflected in the threshold for the maximum statutory penalty. Possession of more than five kilograms of cocaine or more than 50 grams of crack is punishable by a maximum penalty of 50 years imprisonment. Possession of more than 500 grams of powder or more than five grams of crack carries a maximum penalty of 25 years imprisonment.

Maine

Uses a 3. 5-to-1 drug quantity ratio to distinguish trafficking offenses involving crack and powder cocaine. Possession of 14 grams or more of powder cocaine or four grams or more of crack establishes a presumption of trafficking. Aggravated trafficking (i. e. , 112 grams of powder or 32 grams of crack) carries a mandatory minimum sentence of four years imprisonment.

Maryland

Uses a 9-to-1 drug quantity ratio to distinguish trafficking offenses involving crack and powder cocaine. Trafficking 448 grams or more of powder or 50 grams of crack carries a five-year mandatory minimum.

Missouri

Uses a 75-to-1 drug quantity ratio to differentiate between offenses involving crack and powder cocaine. Trafficking between 150 and 450 grams of powder cocaine or between two and six grams of crack is a Class A felony, punishable by 10 to 30 years imprisonment. Offenders who sell more than these maximum amounts are ineligible for probation or parole.

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States

Summary of Statutory Differences

New Hampshire

Uses a 28-to-1 drug quantity ratio to distinguish trafficking offenses involving crack and powder cocaine. Trafficking in five or more ounces of powder cocaine or five or more grams of crack is punishable by up to 30 years imprisonment.

North Dakota

Uses a 10-to-1 drug quantity ratio to differentiate between offenses involving crack and powder cocaine. An enhanced penalty of up to life imprisonment with or without parole is the punishment for trafficking 50 or more grams of powder cocaine or five or more grams of crack. Offenders who receive life with the possibility of parole are not eligible for it for 30 years, less any good time credit. Trafficking lesser quantities is punishable by up to 20 years imprisonment.

Ohio

Uses a graduated drug quantity ratio to differentiate between offenses involving crack and powder cocaine. The ratios vary by offense classification. It is a third-degree felony to sell 10 to 99 grams of powder cocaine or five to nine grams of crack. The minimum drug quantity ratio is 2-to-1; the maximum is 10-to-1. For a first-degree felony, an offender must sell 500 to 999 grams of powder cocaine or 25 to 99 grams of crack; a drug quantity ratio of 10-to-1 and 20-to-1. The drug quantity ratio is 10-to-1 for major drug offenders; those who sell 1,000 grams of cocaine power or 100 grams of crack. Major offenders face a 10-year mandatory minimum term of imprisonment with an additional possible one- to 10-year term.

Oklahoma

Uses a 6-to-1 drug quantity ratio to differentiate between offenses involving crack and powder cocaine. Mandatory 10-year prison term for offenses involving 28 or more grams of powder cocaine or five or more grams of crack. Mandatory 20-year prison term for offenses involving 300 or more grams of powder cocaine or 50 or more grams of crack.

South Carolina

A first time offender possessing 10 grains (. 648 grams) or less of powder cocaine is subject to a maximum two-year prison term while the same offender with less than one gram of crack is subject to a maximum five-year term.

Distribution crimes do not differ between the two forms of cocaine.

Virginia

No distinction between offenses involving the two forms of cocaine. However, the “drug kingpin” statute does differentiate, using a 2-to-1 drug quantity ratio. Under this statute, an offender who traffics five kilograms or more of powder cocaine or 2. 5 kilograms or more of crack is subject to a 20-year mandatory minimum sentence.

Source: U. S. Sentencing Commission

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