Crack (law) is wack: California lawmakers inch closer to reforming discriminatory drug policy

Legislature poised to hear reform bill in August

A California Senate bill aims to undo nearly two decades of racially biased sentencing laws when it comes to crack and powder cocaine.

A California Senate bill aims to undo nearly two decades of racially biased sentencing laws when it comes to crack and powder cocaine.

photo by Koo_Mike/iStock/Thinkstock

State legislators are finally getting around to one of the most racist drug laws on the books.

On Wednesday, the state Assembly Appropriations Committee gaveled through the California Fair Sentencing Act of 2014 on a 12-to-3 margin (with two abstentions). Aided by a bullish review from the nonpartisan Legislative Analyst’s Office, the bill will hit the full floor in August.

The act, Senate Bill 1010, aims to reverse a drug policy that for years incarcerated people of color for exponentially longer prison terms than white individuals for violating essentially the same law: possession of cocaine for sale.

“[It’s] one of the most egregious missteps of the drug war,” said Glenn Backes, a public-policy researcher at the Drug Policy Alliance, which endorses S.B. 1010.

The penal code in California currently treats crack cocaine—which comes from cutting the drug with an alkali, like baking soda—more seriously than it does the powder version. Anyone convicted of possessing crack cocaine for sale faces a mandatory minimum prison sentence of three, four or five years—and double those terms with a prior strike conviction, like burglary or robbery.

A person who’s busted for possessing cocaine powder earns prison terms of two, three or four years. Probation or suspended sentences are also easier to come by for convicted possessors of powdered coke.

Here’s why that’s effed up:

Between 2006 and 2010, 95.5 percent of those locked up in state prisons for possessing crack for sale were people of color, according to California Department of Corrections and Rehabilitation figures analyzed by the Drug Policy Alliance. A whopping 77.4 percent were black.

Meanwhile, a national drug-use survey from the Substance Abuse and Mental Health Services Administration in 2012 showed the use of crack was approximately equal among all races.

None of this data is new.

Mandatory-minimum sentencing guidelines were adopted at the federal level in 1986 and a year later in California. According to Backes, cocaine powder was still being medically prescribed in small doses post-surgery at the time, one of the reasons it was treated differently. But there was also a spurious assumption, fanned by the media, that crack was deadlier and more addictive than powder cocaine.

“It wasn’t long before the medical field said you’re mistaken,” Backes said. A major study in the American Medical Journal was one of several reports to debunk that claim.

There have been previous efforts to reform the law. Late Democratic Sen. Mervyn M. Dymally tried to address the disparities in 2005 and 2008, but both efforts died in committee.

Sen. Holly J. Mitchell believes the climate has changed enough to give her version of the bill a decent shot. “From my perspective, it just seemed like the stars aligned,” she said.

A bipartisan majority of the U.S. Congress passed a federal version of this reform in 2010, and it was championed by such conservative luminaries as Sen. Lindsey Graham, Newt Gingrich and California’s last Republican attorney general, Dan Lungren. Meanwhile, five other conservative states have all beaten California to the punch in modifying their sentencing disparities between crack and powder cocaine, the Sentencing Project reports.

With such widespread support among red-state powers, you’d be forgiven for thinking S.B. 1010 was riding a bipartisan wave here in the Golden State. It’s not.

“Thus far, we haven’t gained one Republican vote for this law,” said John Skoglund, a legislative aide to Mitchell.

The bill did end up securing a lone Republican vote on Wednesday, from former gubernatorial candidate Tim Donnelly.

The California Peace Officers Association, one of only two organizations officially opposing S.B. 1010, believes the disparate penalties should be streamlined the other way, so that powder busts are more serious. But, added spokeswoman Sara Dwyer, the association wasn’t “actively engaged on this bill.” The California District Attorneys Association, which opposed earlier reform efforts, is remaining neutral.

Four Bay Area and southern state DAs have authored strongly worded letters of support for the proposed law. Outgoing Sacramento County DA Jan Scully hasn’t joined them.

Still, California may be finally catching up to the rest of the country when it comes to less severe sentencing policies. State voters overwhelmingly adopted three-strikes reform in 2012. And recently, an initiative to lower the severity of certain drug offenses from felonies to misdemeanors qualified for the November ballot.

As for the lasting impact of mandatory minimum drug sentences, Backes described a grim one. “A number of black families [were] pulled apart,” he said. “The legacy is not just on those families, but on the communities that had every reason to believe the system was rigged against them.”