Mandatory Minimum Policy Reform and the Sentencing of Crack Cocaine Defendants: An Analysis of the Fair Sentencing Act

• Author: David Bjerk
• Published date: 01 June 2017
• DOI: http://doi.org/10.1111/jels.12150
• Date: 01 June 2017

Mandatory Minimum Policy Reform and

the Sentencing of Crack Cocaine

Defendants: An Analysis of the Fair

Sentencing Act

David Bjerk*

The Fair Sentencing Act of 2010 (FSA) affected the U.S. federal mandatory minimum

sentencing laws for crack cocaine offenders, and represented the first congressional reform of

sentencinglaws in over 20 years. A primarygoal of this legislationwas to lessen the harshness

of sentences for crack cocaine offenders and decrease the sentencing gap between crack

defendants and powder cocaine defendants. While the mean sentence length for crack

offenders fell following the implementation of the FSA, these changes appear to primarily

reflect the continuation of ongoing sentencing trends that were initiated by a variety of

noncongressional reforms to federal sentencing policy that commenced around 2007.

However, the FSA appears to have been helpful in allowing these trends to continue past 2010.

I. Introduction

The Anti-Drug Abuse Act of 1986 implemented mandatory minimum sentences upon

conviction for trafficking in quantities of drugs exceeding specific quantity thresholds

for each drug. Although crack cocaine is produced from powder cocaine, and therefore

is pharmacologically identical in its active ingredient, the mandatory minimum trigger-

ing quantities prescribed under the law were extremely different for the two drugs, with

the ratio of powder cocaine relative to crack cocaine needed to trigger eligibility for a

mandatory minimum being 100:1.

The reasons Congress initially cited for justifying the differential treatment of

crack cocaine relative to powder cocaine under the mandatory minimum legislation

were eventually revealed to have little merit. Moreover, the disparate treatment of crack

cocaine relative to powder cocaine also became viewed as racially biased, as over 80 per-

cent of those convicted for crack have generally been African American, while less than

33 percent of those convicted for other drugs such as powder cocaine, methamphet-

amine, and marijuana have been African American (Vagins & McCurdy 2006).

*Associate Professor, Department of Economics, Claremont McKenna College, 500 E. Ninth St., Claremont, CA

91711; email: david.bjerk@cmc.edu. Special thanks to J. J. Prescott, Eric Helland, Hani Mansour, and other members

of the University of Colorado–Denver Department of Economics for their valuable input on this project.

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Journal of Empirical Legal Studies

Volume 14, Issue 2, 370–396, June 2017

In response to this controversy, there developed strong bipartisan support to less-

en the disparate treatment of crack relative to powder cocaine under the mandatory

minimums, which eventually led to the passage of the Fair Sentencing Act of 2010

(FSA). The primary policy change inherent in the actual FSA legislation was that the

mandatory minimum triggering quantities for crack cocaine were increased roughly five-

fold while holding the mandatory minimum triggering quantities for other drugs

(including powder cocaine) constant. Thus, following the implementation of the FSA,

the ratio of powder cocaine relative to crack cocaine needed to trigger eligibility for a

mandatory minimum dropped from 100:1 to about 20:1.

Many U.S. legislators and ideologically disparate groups, including the Open Soci-

ety Policy Center, the American Humanist Association, and the National Association of

Evangelicals, heralded the FSA as a major policy change that will increase the fairness of

U.S. sentencing policy. Such praise might at first glance appear warranted, as the mean

sentence for crack defendants fell by 17 months, or almost 16 percent, in the two years

just after the passage of the FSA relative to the two years just before. However, the evi-

dence presented in this article suggests that this simple observation presents a somewhat

misleading picture the FSA’s impact on sentencing.

In particular, this article argues that the FSA should not be viewed as a mechanism

by which the U.S. Congress pushed the U.S. district courts into reducing sentences for

crack offenders (and thereby lessening the crack/powder cocaine sentencing gap), but as

a congressional assist to a variety of other reforms to the U.S. federal sentencing guide-

lines that have allowed federal judges and prosecutors to act on their preferences for

shorter sentences for crack offenders. More specifically, the U.S. Supreme Court’s deci-

sions in the Booker case and subsequent Rita,Gall,andKimbrough cases, which made the

U.S. sentencing guidelines advisory rather than mandatory by 2007, and the U.S. Sentenc-

ing Commission’s implementation of the Crack Amendment of 2007, which altered the

U.S. sentencing guidelines for crack offenders, initiated a trend toward more leniency in

sentencing of crack offenders. The subsequent adjustments to mandatory minimum trig-

gering quantities as directed by the FSA, in conjunction with further reforms to the U.S.

Sentencing Guidelines for crack offenders that occurred concurrently, allowed this evolu-

tion toward more lenient sentencing norms for crack offenders to continue. Therefore, in

assessing whether the impact of the FSA should be considered a major policy reform, the

answer appears somewhat nuanced. While the reforms to mandatory minimums inherent

in the FSA appear to have done little in and of themselves to accelerate downward trends

in sentencing of crack offenders and the crack/powder cocaine sentencing gap, the

implementation of the FSA likely helped preclude the mandatory minimums from sub-

stantially impeding the continuance of the pre-FSA trends toward greater leniency.

II. Background on the Fair Sentencing Act of 2010

Crack cocaine first started to be manufactured and used in the early 1980s as an alterna-

tive to freebasing cocaine, or heating powder cocaine and inhaling the vapors. Crack

cocaine use expanded quickly, particularly in low-income, predominantly African-

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Crack Cocaine Defendants and the Fair Sentencing Act