It was 1989, and the drug war was in full swing, when a South Central cop pulled Susan Burton to the side of the road and arrested her for possession of crack cocaine for sale. For the charge, the Los Angeles resident received a penalty of five years in prison.
Burton calls that sentence unfair. Had she been arrested with powder cocaine, the maximum penalty under California law would have been one year less.
“It’s a subtle piece of justified racism,” said Burton, who is black and believes the law calls for tougher penalties on crack because it is perceived as more prevalent in communities of color.
Twenty-five years later, as the founder of an organization that works with women incarcerated on cocaine charges, Burton is urging the state to erase the legal disparity in sentencing.
California is one of 12 states with different guidelines for crack and powder cocaine, according to the Sentencing Project, despite science that shows the two substances have an equal chemical effect on the brain. According to state corrections data from fiscal 2005-06 to 2009-10, California incarcerated blacks on charges of possession of crack cocaine for sale at a rate about 43 times higher than the rate for whites.
After two false starts in the last decades, a new effort to equalize the punishments is picking up steam. Legislation on the subject by Sen. Holly Mitchell, D-Los Angeles, squeaked through the chamber in late May. The bill is pending in the Assembly, where the Public Safety Committee plans to hold a hearing Tuesday.
“This is really fundamentally about equal treatment under the law,” said Margaret Dooley-Sammuli, a policy director at the ACLU.
Existing California law calls for a felony jail term of three to five years if violators are caught for intent to sell crack cocaine, but two to four years if they are found with powder cocaine for sale. In addition to longer incarceration times, possessing smaller amounts of crack cocaine can result in denial of probation or asset forfeiture.
Mitchell’s proposed measure would erase the differences by decreasing crack cocaine penalties to match the more lenient guidelines for powder.
But many Republican legislators and law enforcement groups, who oppose Senate Bill 1010, are against any decreases in cocaine penalties. If anything, they argue, the Legislature should raise the punishment for powder cocaine.
“You are not helping anybody by lessening the consequences,” said Sen. Jim Nielsen, R-Gerber, who voted against the measure because he believes both substances are damaging to all segments of society, from dealers to users. “I say that all cocaine affects everybody. Period.”
In 2004 and 2007, legislation similar to SB 1010 failed to receive even a floor vote. But backers believe the politics have shifted in their favor. In 2010, Congress reduced its federal sentencing gap for cocaine, a move supporters hope will temper criticism.
“There is little opposition to this left,” said Lynne Lyman, California state director for the national Drug Policy Alliance.
Although SB 1010 passed 21-12 on party lines, no senators voiced opposition during final debate. The California District Attorneys Association, a group that has challenged past reform efforts, is remaining neutral, with chief prosecutors in four counties – Los Angeles, San Francisco, Santa Barbara and Santa Clara – endorsing the plan.
Burton, who served six prison sentences before she stopped using in 1997, said probation is especially important for low-income violators charged with “possession for sale” or “sale.” Such offenders already find themselves facing an especially tough path to rehabilitation, Burton said, because they can be denied welfare benefits.
“They can’t get food stamps. They can’t get cash aid to supplement them until they get on their feet as a result of being arrested for possession for sale,” Burton said. “They are punished for first the disparity of sentence, and then they are further punished for the rest of their lives.”
The California Legislature overwhelmingly approved stricter penalties for crack in 1986 amid heightened national concern about its health and public safety dangers and with the urging of then-Gov. George Deukmejian’s administration.
Language in the analysis of the bill, shepherded by then-state Sen. John Seymour, relied on reasoning that crack is used “only for unlawful purposes” and is “more addictive and dangerous .” Coming one year before Congress enacted harsh mandatory minimums and sentencing rules for the substance, the vote reflected the national perception of crack, a form of cocaine treated with an alkali, typically baking soda.
“A certain mythology took hold that was based on the belief that somehow crack was akin to a super-drug that justified harsher treatment,” said San Francisco Public Defender Jeff Adachi, who began practicing that same year.
SB 1010 would establish in law that crack and powder are “two forms of the same drug” with similar physiological effects. In an interview, Mitchell acknowledged the devastating impact crack had in the mid-80s. But she argued that the disparate guidelines drew on “racist” assumptions.
“It’s all of the underpinnings of racism that led to a belief that a drug that had the same chemical composition in just a different form should have a different jail sentencing,” she said.
In California, jail terms are currently equal for crack and powder when it comes to sale or simple possession. It’s only “possession for sale” where there is a disparity, a quirk likely left over from the rush to address crack use in the mid-80s, according to Lyman.
“Lawmakers had to write in disparities and it happened in each state pretty haphazardly,” she said. “The randomness in California is true across other states, where it’s written in a couple of codes and not all of them.”
Possession for sale requires prosecutors to prove the offender’s intent to sell, drawing on circumstantial evidence like sale paraphernalia and quantity of the drug at the arrest.
Two groups critical of the measure, the California Police Chiefs Association and California Narcotics Officers’ Association, support Mitchell’s primary goal: equal guidelines. But the similarities end there.
If jail terms are the same for selling powder and selling crack (three to five years), penalties for intent to sell should be the same, argues John Lovell, a lobbyist for the groups. That would mean raising jail terms for powder instead of decreasing them for crack, he said.
“To us, a drug dealer is a drug dealer preying on a neighborhood,” Lovell said. “Whether they are selling powder or crack, they are predators.”
For SB 1010 supporters, Lovell’s proposal is a nonstarter.
“That sounds like a very 1980s drug-war mentality that I don’t think most Californians share,” said the ACLU’s Dooley-Sammuli. “We know better now that longer, harsher penalties do nothing to prevent drug use but do a lot to waste taxpayer dollars.”