What is the difference between crack and powder cocaine in the criminal justice system?

Cocaine drugs heap still life on a mirror with rolled 100 dollar bank note, close up viewCocaine is a central nervous stimulant drug made from the coco leaf primarily made in Columbia, Peru and Bolivia. The cocaine extraction process is complex and involves heating then cooling the leaves. Alcohol is then added and distilled off to create the most pure alkaloid form. U.S. pharmaceutical companies use cocaine for legal medicinal use as a topical anaesthetic. Most cocaine is produced for illegal use. Cocaine is usually exported from South America in power form. The chemical name for powder is cocaine hydrochloride. It has a high boiling point and therefore cannot be smoked. Traditionally it is snorted.

The Federal Government has classified Cocaine as a schedule two controlled substance which means the government deems that it has high potential for abuse but also has accepted medical use in treatment.

In the 1970’s freebasing cocaine became popular way to receive a more intense and immediate high. The process of freebasing involved removing the salt (hydrochloride) from the powder thereby allowing the boiling point to be lowered and more easily smoked which affected the CNS quickly and intensely. This method used a lot of powder cocaine and therefore it was expensive.

Freebasing involved heating powder cocaine and mixing it with ether and ammonia. After it cools and dries the cocaine is smokeable. The problem was that because ether is highly flammable and users could not wait to smoke the end product. Richard Pryor had a lot of money and was a known cocaine user. Therefore he preferred freebasing. On June 9, 1080 Richard Pryor could not wait for the product to dry and when he went to light it he caused an explosion and burned over half his body. (It was also said that he tried to commit suicide).

In the 80’s a less dangerous form of cocaine freebase was created called crack cocaine. The process also removed the salt from the powder except this was done by mixing it with baking soda then heating it. After it cools it hardens into rocks. Crack cocaine is much cheaper which aided its popularity. A perceived “crack epidemic” resulted in the mid 1980’s which prompted congressional hearings during the summer of 1986. The result of the hearings created the following findings: 1. Crack cocaine is much more addictive than powered, 2. Crack produced psychological effects that were worse than powder, 3. Crack attracted users that could not afford powder particularly young people, and 4. Crack cocaine led to more crime.

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Because of these findings the Anti-Drug Abuse Act of 1986 created very stiff penalties for crack cocaine including mandatory minimum sentences for simple possession of crack cocaine. The sentencing disparity for dealing crack and powder cocaine was 100 to 1. For example, the possession of 2 ounces of crack cocaine carried a 10 year mandatory minimum jail sentence compared to 179 ounces of powder cocaine for the same penalty.

Since then the Federal Bureau of Prisons began to have budget and overcrowding problems. Minorities, especially African Americans, were disproportionately incarcerated. More that 80 percent of federal prisons serving crack cocaine sentences were black. The tough sentencing scheme was not working. It was acknowledged that the 100 to 1 ratio was unjustified and without empirical support. It was deemed “one of the most notorious symbols of racial discrimination in the modern criminal justice system” by Senator Patrick Leahy, Chairman of the Senate Judiciary Committee.

In August 2010 President Barack Obama signed the Fair Sentencing Act of 2010 to “restore fairness to Federal cocaine sentencing“ laws. The Act reduced the federal crack vs. powder disparity from 100 to 1 to 18 to 1. The new law was also made to apply retroactively where persons under the old law could get re-sentenced and their jail sentences significantly reduced. Mandatory minimum prison sentences still exist. A federal conviction for possession of cocaine with the intent to distribute a minimum of 28 grams of crack or 500 grams of powder carries a minimum of five years in prison. The sentence increases if the offense involves a firearm, violence, or injury to another and if the offender has a prior criminal record. Lesser jail sentences are given to offenders who deal in smaller amounts of crack and powder cocaine.

The chemistry of cocaine is important to note. Cocaine is cocaine, whether it begins as a salt (cocaine hydrochloride or powder) or a base (crack cocaine). Human bodies remove the salt molecule to convert the cocaine to a base which allows it to get to the receptor. That is why smoking it is faster because the base is already there. Therefore many still see the 18 to 1 disparity as unfair and prejudicial. Significantly, there are no other drugs that have this type of disparity based upon the manner in which it is ingested. Heroin and marijuana may be introduced into the body in various ways which produce very different speeds of effect but there is no difference in sentencing.

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In 2014 the United States Sentencing Commission recommended to further reduce jail sentences for all non-violent controlled substance offenders. Attorney General Eric Holder supports the recommendation and the new law should take effect in November of 2014. The District United States Attorneys have already enacted policies to allow federal defendants convicted of non violent controlled substance offenses to enjoy the lesser penalties.

The State of Michigan drug laws do not have mandatory minimums or differentiate between powder and crack cocaine like federal law does. State law makes a distinction in penalty with offenses involving under 50 grams of cocaine, between 50 and 450 grams (penalty starting at 12 months jail), between 450 and 1000 grams (starting at 36 months in prison), or above 1000 grams.

Attorney Morris has enjoyed a very successful and distinguished career as a trial lawyer providing high quality legal representation in the area of state and federal criminal defense for 19 years. He is known for his trial preparation by fellow attorneys, judges and clients alike. As a trial attorney, he is dedicated to attaining justice in every case, and is prepared to take on complex legal issues with success. Barton and his law firm pride themselves on obtaining results for their clients that other attorneys cannot.

Not only does Barton Morris have extensive experience, he also engages in continuing legal education to provide the highest quality legal services. Barton has received specialized scientific training through the American Chemical Society. He attended the prestigious Trial Lawyers College and serves on its Alumni Association Board of Directors. Barton Morris is also a board member of several distinguished legal associations including the Michigan Association of OWI Attorneys, and the DUI Defense Lawyer’s Association Justice Foundation. He is also an active member of the National Association of Criminal Defense Attorneys and has also graduated from their National Criminal Defense Trial College in Macon, Georgia.

Barton Morris was chosen as a Top Lawyer of Metro Detroit for 2012, 2013 & 2014 for DUI/DWI and criminal defense by DBusiness Magazine and Hour Magazine. Barton Morris was also chosen as a Super Lawyer in Criminal Defense for 2014-2017 and Barton Morris is the only Lawyer in Michigan designated by the American Chemical Society as a “Forensic Lawyer-Scientist”

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May 12th, 2014|