Crack Cocaine in the United States

In the U.S. States

The overwhelming majority of states do not distinguish between powder cocaine and
crack cocaine offenses. Only 13 states have some form of distinction between crack cocaine and
powder cocaine in their penalty schemes, one less than in 2002. Connecticut previously
distinguished between trafficking offenses involving crack cocaine and powder cocaine using a drug quantity ratio of 56.7-to-1 (Conn. Gen. Stat. Ann. § 21a-278(a)). A penalty of five years’ to life imprisonment had been triggered by trafficking either in one ounce (28.5 grams) or more of powder cocaine or .5 grams or more of crack cocaine.

In 2005, the Connecticut General Assembly eliminated the quantity disparity between crack cocaine and powder cocaine by raising the threshold quantity for crack cocaine to one-half ounce (approximately 14.25 grams) and reducing the threshold quantity for powder cocaine also to one-half ounce.

Iowa, the only state reported in the 2002 Commission Report as providing a 100-to-1
drug quantity ratio between powder cocaine and crack cocaine, has since reduced its drug
quantity ratio to 10-to-1 for cocaine offenses in its statutory scheme ( Iowa Code § 124.401 (2006)). Unlike the federal statutory scheme, however, Iowa distinguishes between crack cocaine and powder cocaine only for determining the statutory maximum penalties, not mandatory minimum penalties.

The penalties structures of the 13 states that currently distinguish between powder
cocaine and crack cocaine offenses are described briefly below.

Alabama

Alabama does not provide different penalties for crack cocaine and powder cocaine
offenses, but uses a 10-to-1 drug quantity ratio for determining eligibility for its drug abuse
diversion program. Under this program, any person arrested or charged with a controlled
substance offense may file a request with the district attorney to enroll in a drug abuse treatment program in lieu of undergoing prosecution.

The statutory provisions outlining eligibility for the diversion program provide different quantity levels for powder cocaine and crack cocaine offenders. For powder cocaine, the quantity cannot exceed five grams for eligibility for diversion. For crack cocaine, the quantity cannot exceed 500 milligrams (one-half gram). (Ala. Code § 12-23-5(2)(b), (c) (2006)).

For non-diversionary cocaine offenses, Alabama does not distinguish between crack cocaine and powder cocaine. For 28 grams or more but less than 500 grams of cocaine, an offender is subject to a mandatory minimum term of three years imprisonment; for 500 grams but less than one kilogram, an offender is subject to a mandatory minimum term of five years imprisonment; for one kilogram but less than ten kilograms, an offender is subject to a mandatory minimum term of 15 years imprisonment; for ten kilograms or more, an offender is subject to a mandatory term of imprisonment of life without parole (Ala. Code § 13A-12-231 (2006)).

Arizona

Arizona distinguishes between offenses involving powder cocaine and crack cocaine
using a drug quantity ratio of 12-to-1. Under Arizona’s statute, nine grams of powder cocaine or
750 milligrams of cocaine base trigger the threshold amount for trafficking, with a presumptive
sentence of five years imprisonment (Ariz. Rev. Stat. Ann. §§ 13-3408(A)(2), (B)(2), 13-701(C), 13-3401(36)(b), (c) (2006)). The judge may sentence an offender to a minimum of four years imprisonment if mitigating factors are present, or a maximum of ten years if aggravating factors are present (Ariz. Rev. Stat. Ann. § 13-702(A)(1)). An offender convicted of trafficking is not eligible for suspension of sentence or release until the offender has served the sentence imposed by the court (Ariz. Rev. Stat. Ann. §§ 3401(36), 3408(D)).

California

The state of California did does not have sentencing guidelines for long time. A governor’s proposal to create
a sentencing commission, was included within the state budget proposed for 2007-2008.

Offenders convicted of possession or possession with intent to sell crack cocaine or
powder cocaine are sentenced to different terms under California law, depending on the
threshold amount. A person convicted of possessing for sale a substance containing 14.25 grams or more of cocaine base or 57 grams or more of a substance containing at least five grams of cocaine base is subject to a sentenced of either a three, four, or five-year term of imprisonment, depending on whether aggravating or mitigating circumstances are present.

Conversely, a person convicted of possessing for sale a substance containing 28.5 grams or more of powder cocaine or 57 grams or more of a substance containing cocaine is sentenced to either a two, three, or four-year term, depending on whether aggravating or mitigating circumstances are present (Cal. Penal Code § 1203.073(b)(1) and (5) (West 2006); Cal. Health & Safety Code §§ 11351.5, 11351 (West 2006).

Under California’s Determinate Sentencing Law (DSL), the sentencing judge must sentence
an offender to the middle statutory range absent a finding by the judge of certain aggravating or mitigating circumstances. In Cunningham v. California, 127 S.Ct. 856 (Jan. 22, 2007), the Supreme Court struck down California’s DSL on grounds that it violated the Sixth Amendment’s jury trial right, as interpreted by the Court in the Apprendi line of cases. Unlike the Booker opinion, the Court did not set forth a remedy. In response, the California legislature recently passed SB 40, which essentially makes the California DSL advisory in nature).

Possession with intent to sell still carries a mandatory minimum penalty if a defendant
has a prior conviction. California statutes provide enhancements if large quantities of drugs are
involved in the offense. When calculating the quantity levels necessary to trigger these
enhancements, however, California does not distinguish between crack cocaine and powder
cocaine.

Iowa

Iowa distinguishes between trafficking offenses involving crack cocaine and powder
cocaine using a 10-to-1 drug quantity ratio. In the 2002 Commission Report, Iowa was the only
state reported as having a 100-to-1 drug quantity ratio for crack cocaine and powder cocaine
similar to the federal statutes. In 2003, Iowa lowered its ratio from 100-to-1 to 10-to-1 by
amending Iowa Code section 124.401 in order to “align, using a 10-to-1 ratio, the threshold
amount for a conviction of a cocaine-related offense with a ‘crack cocaine’ offense” (2003 Iowa Legis. Serv. P. 4, Senate File 422, by Committee on Judiciary).

The 10-to-1 ratio still is reflected only in the threshold amounts that determine the maximum statutory penalty, and not in the mandatory minimum penalty. For example, more than 500 grams of powder cocaine or more than 50 grams of cocaine base trigger a maximum penalty of 50 years’ imprisonment. An offender with more than 50 grams of powder cocaine or more than five grams of cocaine base is subject to a maximum penalty of 25 years’ imprisonment (Iowa Code § 124.401).

Essentially, an offender must have 10 times more powder cocaine than crack cocaine to trigger the same statutory maximum penalty. Iowa also requires an offender who commits one of these offenses to serve a minimum period of confinement of one-third of the maximum sentence prescribed by law before being eligible for parole (2 Iowa Code § 124.401).

Maine

Maine distinguishes between trafficking offenses involving crack cocaine and powder
cocaine using a 3.5-to-1 drug quantity ratio. If an offender knowingly possesses 14 grams or
more of powder cocaine or four grams or more of cocaine base, a presumption of unlawful
trafficking is established (Me. Rev. Stat. Ann. tit. 17, § 1103(3)). For aggravated trafficking, i.e., 112 grams or more of powder cocaine or 32 grams or more of cocaine base, an offender is subject to a mandatory minimum sentence of four years’ imprisonment (Me. Rev. Stat. Ann. tit. 17, §§ 1105-A(D), 1252(5-A)).

Maryland

Maryland distinguishes between offenses involving powder cocaine and crack cocaine
using a 9-to-1 drug quantity ratio. Maryland has a five-year mandatory minimum penalty for
trafficking 448 grams or more of powder cocaine or 50 grams or more of cocaine base (Md. Code Ann., Crim. Law § 5-612(a)(2), (4), -612(c)(1)).

Missouri

Missouri differentiates between offenses involving powder cocaine and crack cocaine
using a 75-to-1 drug quantity ratio. Offenders who traffic more than 150 grams but less than 450
grams of cocaine powder are Class A felons. For cocaine base, two grams but less than six
grams trigger the same penalty. Offenders who traffic 450 grams or more of powder cocaine, or
six or more grams of cocaine base, both Class A felonies, are ineligible for probation or parole.
Class A felonies carry an imprisonment term of not less than ten years and not more than 30
years (Mo. Ann. Stat. § 195.222(2)).

New Hampshire

New Hampshire differentiates between trafficking offenses involving powder cocaine
and crack cocaine using a 28-to-1 drug quantity ratio. New Hampshire provides a maximum
penalty of 30 years imprisonment for trafficking in five ounces (142.5 grams) or more of powder
cocaine. The same penalty applies for trafficking in five grams or more of cocaine base (N.H. Rev. Stat. Ann. § 318-B:26(I)(a)(1), (3)).

North Dakota

North Dakota differentiates between offenses involving powder cocaine and crack
cocaine using a 10-to-1 ratio (N.D. Cent. Code § 19-03.1-23.1(1)(c)(2), (3)). Mandatory minimums apply if an offender has prior offenses.

An offender who is found guilty of a second offense is subject to a mandatory minimum of five
years imprisonment; an offender with a third or subsequent offense is subject to a mandatory
minimum of 20 years imprisonment (N.D. Cent. Code § 19-03.1-23(1)(a)(1), (2)).

In North Dakota, however, a first time offender has an enhanced penalty that provides a maximum of life imprisonment with or without an opportunity for parole for trafficking 50 grams or more of powder cocaine or five grams or more of cocaine base. An offender who is classified as a Class AA felon, and who receives a sentence of life imprisonment with the possibility of parole, will not be eligible for parole for 30 years, less any sentence reduction earned for good conduct. Cocaine quantities less than the above-mentioned amounts qualify as a Class A felony, with a maximum penalty of 20 years imprisonment (N.D. Cent. Code § 12.1-32-01(1), (2)).

Ohio

Ohio differentiates between offenses involving powder cocaine and crack cocaine using a
graduated scale based on threshold amounts and felony categories imposed by statute ( Ohio Rev. Code Ann. § 2925.01(X), (GG)). The felony categories are defined by degree: first, second, third, and fourth. The ratios vary between each individual felony category based on quantities from the low end of the range to the high end (Ohio Rev. Code Ann. § 2925.11(C)(4)(b)-(f)). For example, it is a felony in the third degree to distribute ten grams but less than 100 grams of powder cocaine. For cocaine base, the third-degree felony range is five grams but less than ten grams.

The minimal drug quantity ratio is 2-to-1; the maximum drug quantity ratio for this category is 10-to-1. To qualify for a first-degree felony, an offender must distribute 500 grams but less than 1,000 grams of powder cocaine, and at least 25 grams but less than 100 grams of cocaine base, which results in a ratio fluctuation of between 10-to-1 and 20-to-1. For major drug offenders, Ohio uses a 10-to-1 ratio (1,000 grams cocaine powder and 100 grams of cocaine base) and prescribes a mandatory minimum term of ten years’ imprisonment with an additional one to ten-year term subject to judicial discretion (Ohio Rev. Code Ann. § 2925.03(4)(a)-(g)).

Oklahoma

Oklahoma differentiates between trafficking offenses involving powder cocaine and
crack cocaine using a 6-to-1 drug quantity ratio. The Oklahoma statutes provide mandatory
minimum penalties of ten years imprisonment for offenses involving 28 grams or more of
cocaine powder or five grams or more of cocaine base. The statutes also provide a 20-year
mandatory minimum for offenses involving 300 grams or more of powder cocaine or 50 grams
or more of cocaine base (Okla. Stat. Ann. tit. 63, §§ 2-415(C)(2), (7), 2-401).

South Carolina

South Carolina’s statutory scheme for cocaine penalties is complex, with different
minimum and maximum penalties for possession, distribution, and trafficking of powder cocaine and crack cocaine. For possession offenses, crack cocaine is penalized more severely than powder cocaine. A first time offender with ten grains (.648 grams) or less of powder cocaine is subject to a statutory maximum penalty of two years imprisonment, but a first time offender with less than one gram of crack cocaine is subject to a statutory maximum penalty of five years imprisonment (S.C. Code Ann. §§ 44-53-370(d)(4), (e)(2), 44-53-375(B)(2)).

Offenses involving ten grams or more of powder cocaine are presumed to be distribution offenses, and offenses involving one gram or more of crack cocaine are presumed to
be distribution offenses. Interestingly, second time distribution offenses involving powder
cocaine are penalized more severely (five to thirty years imprisonment) than those involving
crack cocaine (zero to 25 years imprisonment) (S.C. Code Ann. § 44-53-370(e)(2)(a)(2)).

Virginia

Virginia’s statutes generally do not distinguish between offenses involving powder
cocaine and crack cocaine. The penalties are determined by the schedule of the controlled
substance involved in the offense, and all forms of cocaine are listed in schedule II. Virginia’s
distribution statute, however, does distinguish between the two forms of cocaine 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 cocaine base is subject to a 20-year mandatory
minimum sentence.

Crack Cocaine and Equal Protection

According to the Encyclopedia of the American Constitution, during the 1980s, the federal government and many states adopted particularly harsh sentences for possessing or trafficking in crack cocaine. This sentencing has become controversial because it is borne largely by African American defendants. Find more information on equal protection here.