Cracks in the System

The long fight to end the racial disparity in cocaine sentencing continues

It took Norm Brown a while to realize he would likely die in prison. Sentenced to life at the age of 24 for felonies involving crack cocaine, he’d always held out hope he’d someday go free, but he saw each of his options evaporate one by one.

“I was like a drowning man reaching for a spiderweb,” Brown says of the various appeals and attempts at clemency he sought.

Brown is one of many Black men whose lives were severely impacted by a wide disparity in federal sentences given to those convicted of selling crack versus those convicted of selling powder cocaine. For more than two decades, federal sentencing treated possession of 5 grams of crack the same as 500 grams of powder cocaine—a 100-to-1 ratio. And though the Fair Sentencing Act of 2010 reduced that imbalance to 18-to-1, as of 2023, according to a report from the Princeton School of Public and International Affairs, there were 6,400 people serving federal sentences for crack. In January 2025, President Joe Biden commuted the sentences of nearly 2,500 people serving various drug offense sentences, including some convicted under the disparity.

Soft-spoken and thoughtful, Brown grew up in a middle-class family in Washington, D.C., the son of a hotel worker and a teacher. He was a decent student and had planned to play basketball in college but dropped out before completing his studies. In his late teens, Brown got tangled up with some friends who sold drugs.

“There was this group, a little older than me, who began to get these fast things, shiny things—and all of the pretty women,” Brown says. “I ended up following in their footsteps.”

At 17, he was caught in an undercover operation selling a small amount of powder cocaine and served three months on two charges.“I got out and began right back in the same lifestyle again,” Brown says. In 1990, he was one of 29 charged in a federal drug conspiracy case. He was ultimately convicted of distributing and possession of crack cocaine. Because of the prior convictions and mandatory minimum requirements, Brown was given three life sentences, which were consolidated into one.

The judge, Brown recalls, wasn’t eager to sentence a 24-year-old man to life in prison. “He says that even though we were wrong, he did not feel comfortable sentencing me to those life sentences,” Brown says. “He said that hopefully, in time, the laws will change.”

The federal laws did eventually change, but not in a way that could lead to Brown’s release. It wasn’t until President Barack Obama’s Clemency Initiative of 2014—a partnership with the ABA that sought to commute or reduce the sentences of nonviolent drug offenders—that Brown was finally released in 2015. During almost 25 years of incarceration, his grandmother, parents and brother all died. His daughter, who was in her mother’s womb when Brown was incarcerated in 1990, was now an adult.

“As you mature, you realize: Oh, man, I’m getting older,” Brown says. “Look at my daughter. Oh, my mom passed away. Oh, now my dad’s gone. My grandma passed away. That’s when it sets in, it tears you up. You miss all levels of academics. You miss proms. You just miss a lot of things.”

The 1980s crack panic

“Other than public defense structures and payment for assigned counsel, I don’t think there’s been another issue that has galvanized the bar quite as much,” says Kyle O’Dowd, deputy director for the National Association of Criminal Defense Lawyers. Because of the stark racial and economic disparities in sentencing of crack versus powder cocaine, O’Dowd says, “it’s still a very lasting symbol of racism within the criminal justice system.”

In the mid-1980s, a moral panic, fed by sensationalist media coverage such as the CBS News documentary 48 Hours on Crack Street, began to develop around crack—an inexpensive, readily available version of cocaine. The overdose death of college basketball star Len Bias in 1986—two days after he was drafted into the NBA—prompted Congress to pass the Anti-Drug Abuse Act that same year. The law was co-sponsored by then-Sen. Joe Biden and imposed a 100-to-1 sentencing disparity between powder and crack cocaine. Studies have shown both drugs act on the brain in a chemically similar fashion.

There is an extensive, well-documented body of evidence demonstrating that crack convictions have disproportionately impacted Black people more severely than whites. According to a 2006 report from the American Civil Liberties Union, prior to the 1986 law, average federal drug sentences for Black people were 11% higher than for whites, but within just four years after the law’s passage, the average federal drug sentence for Blacks was 49% higher. The ACLU report also found that while 80% of those serving sentences for crack cocaine were Black, 66% of crack users were white or Hispanic.

“A whole reform movement was built up around mass incarceration, around racial disparities within the criminal justice system, and this was really exhibit A,” O’Dowd says. 

In 1994, the U.S. District Court for the Eastern District of Missouri ruled in </em>United States v. Clary that the crack/powder disparity deprived Edward James Clary, who was Black, of his Fifth Amendment equal protection rights and imposed a sentence that would have been merited for powder cocaine. That ruling was reversed and remanded for resentencing by the St. Louis-based 8th U.S. Circuit Court of Appeals.

In 1995, the U.S. Sentencing Commission recommended that Congress pass legislation reducing the disparity, noting that the two forms of the drug are essentially the same. Two attempts at legislation failed, first a bill in 2001, and then another in 2007 sponsored by then-Sen. Biden that would have eliminated the 100-to-1 imbalance. Biden admitted regret for co-sponsoring the original 1986 bill, saying, “The road to hell is paved with good intentions.”

In 1996, the U.S. Supreme Court heard the case United States v. Armstrong, in which four defendants said they were victims of “selective prosecution” for crack based on their race. The justices ruled that the defendants could not bring that claim without demonstrating that the government failed to prosecute similarly situated suspects of other races.

In 2005, the Supreme Court in United States v. Booker ruled that federal sentencing guidelines were to be treated as only that—guidelines.

“So as long as your quantity of crack doesn’t trigger a mandatory minimum, or it’s triggering the same mandatory minimum that a quantity of powder would trigger,” notes James Felman, a former chair of the ABA Criminal Justice Section, “the judge might be free to craft a one-to-one sentence.”

But this still left the issue up to individual judges. It wasn’t until the Fair Sentencing Act was signed into law by Obama in 2010 that the crack-powder sentencing disparity was reduced to 18-to-1. In 2018, the First Step Act, signed by President Donald Trump, applied the threshold for crack retroactively.

“It was quite a monumental thing that Congress did in 2010,” says Felman, who testified before Congress in support of the reforms. “I’m not aware of another example in the history of our republic in which the Congress says, ‘We’re lowering the penalty for a crime.’”

O’Dowd says the campaign to reduce the crack disparity was integral to subsequent efforts to reduce high rates of incarceration and push further sentencing reforms.

“Anyone who has to explain the sentencing structure to their clients and witness the looks of disbelief and despair at the unfairness and severity of these penalties knows that this is a problem that is undermining the legitimacy of our justice system and continues to do so. And it needs to be finally remedied,” he says.

Ending the disparities

More recently, the effort to eliminate the disparity has had mixed results. 

“We know that thousands of people are still serving time because of this disparity,” says Maritza Perez Medina, director of federal affairs for the Drug Policy Alliance, “and we know that’s disproportionately and overwhelmingly fallen on Black people. So it’s still a critical issue that Congress needs to address.”

According to a 2024 policy brief by the Policy Advocacy Clinic of the Princeton School of Public and International Affairs, federal convictions for crack have been steadily declining since 2015 and dipped below 1,000 for the first time in 2023—but nearly 80% of those convicted that year were Black.

Medina notes that the federal government is an outlier when it comes to the crack/powder disparity. According to the Princeton brief, 41 states have no disparity, seven have a disparity lower than 18-to-1 and only two (Missouri and New Hampshire) have a higher disparity than the federal government.

States with disparities in sentences for crack and powder cocaine have also seen an imbalance between Blacks and whites. In California, according to the Drug Policy Alliance, between 2005 and 2010, 77% of those convicted on state possession to sell crack charges were Black. California passed a law eliminating the disparity in state sentences between crack and powder cocaine in 2014. According to Families Against Mandatory Minimums, which was founded in 1991 to advocate for fairness in sentencing guidelines, California saw arrests for hard drugs drop 33% in the five years after the law passed.

In 2021, Sens. Cory Booker (D-N.J.) and Dick Durbin (D-Ill.) sponsored the Eliminating a Quantifiably Unjust Application of Law Act, which would eliminate the crack/powder cocaine disparity and would be applied retroactively. The bill passed the House but failed to move forward in the Senate. They reintroduced the legislation in 2023 without success.

William Otis, a former federal prosecutor and former counselor to the head of the Drug Enforcement Administration during President George H.W. Bush’s administration, says he believes the current 18-to-1 disparity is justified. “I think that’s about where we should be,” Otis says. “Congress got it right.”

Otis believes sentences for crack cocaine should be stiffer than those for powder cocaine. “It can be sold in a way where it’s more available to younger people, to minors who don’t know what they’re getting into. And the degree of the high and the suddenness of a high make it, for practical purposes, a more dangerous drug.”

Felman says such arguments have long been debunked. “I don’t think there’s any other compound that we penalize by mode of ingestion, and it doesn’t seem very compelling to me,” he says. “And it’s so convenient that the percentages, when you look to enforcement, that all of the defendants on the crack cases were all Black, and the defendants on the powder cases, such as they were, were white.”

In 2022, Attorney General Merrick Garland issued a memo offering guidance to federal prosecutors to equalize sentencing requests for crack and powder cocaine. “The crack/powder disparity is simply not supported by science, as there are no significant pharmacological differences between the drugs: They are two forms of the same drug, with powder readily convertible into crack cocaine,” the memo notes.

“What’s unfortunate about any guidance, including guidance from the Department of Justice, is that what often happens is that the next administration rescinds it and puts out their own guidance,” Medina says.

That’s precisely what happened in February of this year. On her first day as U.S. attorney general, Pam Bondi issued a memo regarding charging, plea negotiations and sentencing. In a footnote at the end of the document, Bondi rescinded the Garland memo on crack sentencing with no additional comment.

Cops cooking up crack

The massive nationwide law enforcement effort launched against crack in the 1980s and 1990s was a major contributor to the crisis of mass incarceration of young Black men documented in Michelle Alexander’s 2010 book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness. And though the image portrayed in reality shows such as Cops implied law enforcement were going after large-scale dealers, a study published in 2018 found that two-thirds of sale or possession arrests by state and local police were for amounts of less than 1 gram.

Broward County, Florida, was notorious for its enthusiastic enforcement of crack laws in the late 1980s and early 1990s, as then-Sheriff Nick Navarro worked with the producers of the first season of Cops to prominently feature his officers making drug arrests.

Three decades later, Broward State Attorney Harold Pryor is working to vacate some convictions for crack possession from the era of Sheriff Navarro that were the result of an unusual and unconstitutional reverse sting operation.

In 1988, Broward County sheriff’s deputies found almost a kilogram of powder cocaine in a locker in a Greyhound bus station. Rather than destroy it, they decided to use it for a reverse sting operation. 

In the crime lab, officers cooked the cocaine into crack, placed it in zip-close bags and had undercover officers sell the crack—sometimes setting up shop within 1,000 feet of a school to trigger a higher sentence.

The effort wasn’t uncommon—the Santa Ana Police Department in Orange County, California, admitted in 1994 to secretly manufacturing and selling crack for reverse stings.
In 1993, the Florida Supreme Court ruled in State of Florida v. Leon Williams that the Broward Sheriff’s Office’s conduct “was so outrageous as to violate Florida’s due process clause.”

When Pryor, who assumed office in 2021, learned about the operation, he was outraged. “It’s even shocking now,” he says. “I think it perfectly encapsulates what was going on at the time, when you consider the sense of urgency the country had surrounding the crack epidemic.”

One of Pryor’s policy goals was to modernize the attorney’s office and purge old files. His staff was sorting through old boxes of paper case files and either scanning or destroying those beyond their retention date. Some staff members who had been around at the time of the reverse stings told Pryor about the illegal operation and the fact nothing had been done to vacate the convictions.

“They told me, ‘We think we owe it to these individuals to look at these cases, review [them] and see if there’s something that we can do.’”

Shocked that the office hadn’t done anything for decades, Pryor told them to try to find convictions resulting from the operation. It’s a time-consuming task.

“Our chief judge has agreed and has an appointed a judge who will serve as the presiding judge over the docket that will deal with the ultimate vacating of those pleas or reopening the cases, vacating those pleas and ultimately doing the right thing,” Pryor says. A press release from his office estimates there are as many as 2,600 cases.

Pryor is determined to find everyone impacted. “Because the real-life effect of that is it affects your ability to get housing and affects your ability to secure loans or your ability to get a job.”

Growing up in Dade City in the 1990s, Pryor, who is Black, saw a lot of friends and family caught up addiction or negatively impacted by the war on crack. “A lot of my friends’ fathers, a lot of my cousins, a lot of the men—even women—in our surrounding neighborhood were put into the criminal justice system,” he says.

Pryor adds that some of those people he knew benefited from the changes in the Fair Sentencing Act passed in 2010.

Vacating the illegal convictions will be another step at healing, he says. “We can’t give them those years back, right? But I feel it’s better to do something rather than nothing.”

Doors open with Clemency Initiative

Brown conducted a lot of research regarding his case and changes to the law. He filed an appeal to the U.S. Supreme Court, which was denied. He filed a clemency petition, pro se, in 2002, but it was also denied, as was the clemency petition he filed in 2010.

Brown was connected early in his incarceration with FAMM through his mother, who worked with the organization to try to secure her son’s release. He continues his work with FAMM and is on its board of directors.

When Obama announced the Clemency Initiative in 2014, Brown read an article about it and wrote to all the attorneys mentioned in the piece. One got in touch with Brown.

“They said, ‘You’ve never been in trouble in your whole 24½ years of being incarcerated, you’ve gotten all kinds of good write-ups from different staff at each facility, you have further education—we’re going to take your case.’”

Felman, who was integral to the ABA’s involvement with the Clemency Initiative, saw it from the other side, speaking with Deputy Attorney General Jim Cole’s office about putting together a massive effort, sending out flyers to every federal prisoner with criteria and a questionnaire.

“Thirty-five thousand of those came into our inbox, and we raised an army of about 3,500 lawyers. We think it’s the biggest pro bono effort in our history.”

In July 2015, Brown’s attorney’s called to tell him Obama had accepted his clemency.

“And I was like, ‘What do you mean, accepted it?’ And they started laughing. ‘What does that mean? Mr. Brown, you will be getting out of prison in November.’”

“I couldn’t move. I couldn’t believe it. I’m getting chills now, thinking about it again.”

Later, he surprised his daughter on her birthday. She was driving, so he told her to pull over. Her present, he told her, would be that he was coming home. “She was yelling and hollering, and the phone fell on the floor, and she was banging the steering wheel,” he says.

Brown protected his mental health during 24 years of incarceration by teaching classes—self-improvement classes, fitness, anger management and youth empowerment among them. But many inmates around him didn’t fare as well, he says. “You see people dying and withering away from a mistake that they made in their lives at early ages.”

After his release, Brown was invited to lunch with Obama and several other prisoners who’d been granted clemency. “That was an amazing experience as we rolled down Pennsylvania Avenue. From prison to the White House,” he says, marveling.

As a beneficiary of such clemency, Brown urges the current administration to fix things for the nonviolent crack offenders still serving long sentences.

“I hope that even today’s administration would give the U.S. that. And if you don’t want to change that law, well, at least give clemency to everyone that’s under the law.”