State-level disparities in crack vs. powder cocaine sentences: Unfinished business

The effects of the federal crack vs. powder cocaine sentencing disparity were well-documented at the federal level, but such assessments did not capture the damage inflicted in the states that adopted doppelganger legislation in the late 1980s. Collectively, the states imprison over six times as many people as does the federal government, making state-level reform essential in any effort to broadly implement more equitable incarceration policies.

Now that Congress and the Obama Administration have eliminated mandatory minimums for simple possession of crack and reduced the size of the powder-crack disparity substantially for dealing offenses, a window has opened for reformers to go back to state legislatures and ask them to copy the federal government again, only this time by reducing crack cocaine sentences rather than ramping them up. South Carolina has already done so, and I am informed that the changing federal landscape was one of the rationales successfully invoked by reformers to persuade the state to drop its own crack-powder disparity.

That leaves I believe, about 10 states with a bad law handed down from another era. I tried to make the case earlier this week that California is the most important to reform because of the size of its prison system. California gives a “bonus year in prison” for crack versus otherwise identical powder cocaine dealing convictions, which at the peak of the epidemic were meted out to over 2,000 people a year. My back of the envelope calculation is that dropping the crack penalty to the level of powder penalties in California would have an immediate effect of reducing imprisonment by about 6,000 total years (assuming retroactivity) in the first year, and then a further 1,200-1,800 years per year after that, depending on whether the crack epidemic continues to wane or kicks up again. At $40,000/year of incarceration, that’s roughly $60 million in savings for California annually.

It’s hard to work out the collective impact of reform in their rest of the states, because they passed different types of powder-crack disparities. But their collective overall population is more than California’s, so projecting another $60 million in reduced prison costs to spread around is quite conservative.

That said, the best reason for states to follow the federal reform is that the remaining laws are simply unjust, and would be so even if there were no financial savings to be realized from changing them (or for that matter even if it cost money to be rid of them). With the federal reform complete, and a zeitgeist of criminal justice reform blowing through the country, all of us who care about this issue should be descending on our state capitals to demand change.