It’s been a little over 20 years since Basketball star Len Bias died of a drug overdose. The publicity following Bias’ death, which was (wrongly) attributed to crack cocaine, helped push through the Anti-Drug Abuse Act of 1986, which established a wildly disproportionate punishment for crack cocaine compared to powder cocaine. To quote a recent ACLU report (pdf file), “distribution of just 5 grams of crack carries a minimum 5-year federal prison sentence, while for powder cocaine, distribution of 500 grams – 100 times the amount of crack cocaine – carries the same sentence.”
The law, in practice, is racist and does incredible damage to the Black community. From the ACLU report (emphasis added):
The racial disparity in the application of mandatory minimum sentences for crack cocaine is particularly disturbing. African Americans comprise the vast majority of those convicted of crack cocaine offenses, while the majority of those convicted for powder cocaine offenses are white. This is true, despite the fact that whites and Hispanics form the majority of crack users. For example, in 2003, whites constituted 7.8% and African Americans constituted more than 80% of the defendants sentenced under the harsh federal crack cocaine laws, despite the fact that more than 66% of crack cocaine users in the United States are white or Hispanic. Due in large part to the sentencing disparity based on the form of the drug, African Americans serve substantially more time in prison for drug offenses than do whites. The average sentence for a crack cocaine offense in 2003, which was 123 months, was 3.5 years longer than the average sentence of 81 months for an offense involving the powder form of the drug. Also due in large part to mandatory minimum sentences for drug offenses, from 1994 to 2003, the difference between the average time African American offenders served in prison increased by 77%, compared to an increase of 28% for white drug offenders. African Americans now serve virtually as much time in prison for a drug offense at 58.7 months, as whites do for a violent offense at 61.7 months. The fact that African American defendants received the mandatory sentences more often than white defendants who were eligible for a mandatory minimum sentence, further supports the racially discriminatory impact of mandatory minimum penalties.
Mandatory minimums limits a judge’s discretion to make allowances for mitigating circumstances. This has particularly nasty consequences for people who are financially dependant on crack dealers, or who suffer from domestic violence – which means, most of the time, women getting screwed over. From the ACLU report:
Mandatory sentencing laws prohibit judges from considering the many reasons women are involved in or remain silent about a partner or family member’s drug activity such as domestic violence and financial dependency. Sentencing policies, particularly the mandatory minimum for low-level crack offenses, subject women who are low-level participants to the same or harsher sentences as the major dealers in a drug organization.
The primary difference between crack cocaine and powder cocaine, as far as engagement with our legal system goes, is that most people convicted for possession of crack are Black, whereas most people convicted for possession of powder cocaine are white. That is systematic racism at work, throwing Blacks in prison and ripping apart Black families. It says something horrible about our society that we find this state of affairs acceptable.
You could argue that this sentencing mismatch wasn’t intended to be racial when it was first passed – but the racial effects of these laws have been known for well over a decade. Despite knowing that the effect of the sentencing guidelines to put Blacks into prison for years more than whites, for the same or often lesser crimes, Congress has three times refused to reform the law. (Protecting the 100/1 ratio is the only time Congress has ever refused to follow the unanimous recommendation of the committee that advices Congress on sentencing).
Will a new, (barely) Democratic-dominated Congress restore some measure of justice to sentencing? I’d like to think they will, but many of them are probably afraid of being labeled “soft” on crack users.
[Cross-posted at Creative Destruction, where we sprinkle powder on top of rock and consume them together.]
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How refreshing to be able to comment “I agree”, wholeheartedly. If cocaine is this terrible scourge, then put in harsh penalties across the board; if it’s not so bad, then a milder uniform penalty. Discriminating on the basis of the physical form of the drug is unjustifiable; the racial element makes it obscene.
The laws were originally passed because folks were scared of crack. It’s turned out not to be the superduperdangerous substance that folks feared, nor has it gotten to an insane epidemic (though in truth the extraordinary penalties may have something to do with that).
Still, working in a u.s. attorney’s office (most major drug crimes are federally prosecuted) there was a general feel that this was off. And those are, obviously, some of the more pro-conviction folks out there.
You may not realize this, but it is even worse that you summarize. Unless there’s been a significant change in the guidelines since I last looked, many defendants could be (and were) convicted for possession of crack for things which weren’t crack. E.g. (operating from memory here):
-if you had a substance which was partially cocaine base (crack) and partially not, there was no provision to look at percentages. One kilo of crack, uncut, would get you penalties for one kilo. Take that same kilo and cut it 100 times, and you get the penalties for 100 kilos, even though the crack amount remains the same. This sort of makes sense when you think of cutting, but makes less sense for people who are busted doing production, because they often had huge quantities of stuff, of which only a tiny portion was crack.
-i believe some precursor chemicals could also be counted as crack. which raised sentences considerably,
That said, there is an important thing you didn’t mention.
These guidelines are federal guidelines, not state guidelines. So they only apply in federal cases, which is to say they only apply in federal court, for cases brought by U.S. Attorneys.
The part that you didn’t mention is that U.S. Attorneys generally don’t bother with small time criminals, except in a few cases: 1) felons on probation, and 2) low ranking gang members, as a method of squeezing them for information. Generally if it was less than a kilo they would let the state handle it.
This reduces some of the fundamental unfairness of the 100:1 ratio. At least for me. See, I’m most concerned that the casual user who has, say, 10-50 grams of coke or crack, gets treated insanely badly depending on whether it’s coke or crack.
But once someone gets busted with a kilo, or 10 kilos, or 250 kilos, I’m honestly much less concerned about the length of their sentence. I don’t like drug dealers; I don’t like either crack or coke, and so long as due process is followed during their trial I’m happy to lock them up for a while.
Similarly, in order for probation to work well, and in order for the state to support probation (which I think is a good thing) it needs to be enforced strictly. I have little problem with convicting folks who violate probation.
Finally: I think the racist argument was pretty apposite when the laws were first passed. (You may not know that this issue was actually appealed to the supreme court; the state won). But at THIS POINT, where the effect of the laws and the disparate treatment for crack and coke are widely known among criminals, I have less sympathy. If someone knows the penalties and begins to use/deal with that in mind, they’re taking a risk on themselves. You can’t blame the law.
So is “systematic racism” anything that affects people of different races differently in aggregate, even if no actual racism—as the word is used outside of lefty circles—is actually involved?
… even if no actual racism—as the word is used outside of lefty circles—is actually involved?
No. The debate is over whether or not, in this case, disparate sentencing was motivated by a racism that is deeply ingrained in the US. I believe that there is ample evidence that it was.
The cause has been taken up by, among others, many judges. here’s an article on one judge who find the discrepancy problematic (to say the least):
http://www.boston.com/news/nation/washington/articles/2006/11/15/judge_attacks_disparity_in_cocaine_sentencing/
What ample evidence? Even Ampersand acknowledges that it’s not clear that the law was racist by design—IMO, the parsimonious explanation is that, like most laws, it was simply a product of popular hysteria and the “do-something” disease.
And once a law like this gets passed, trying to roll it back is political suicide. Not one Congressman in ten is brave or foolish enough to go on record as being soft on crack. So it stays. Democracy in action.
Brandon,
Ask yourself, “Why the hysteria over crack that was lacking for powder cocaine when powder was popular in the 70’s? What was the difference between the two forms of the drug? Were there any differences between the popular view of who the users of the two different forms were?” for a start. If you really want to talk about why I and many others believe there is ample evidence that this is a law/rule influenced/motivated by societal racism, this is the place to start. There is a difference between a law made by overt racists and a law made by people strongly influenced by the racism that is part of their community (see point the secondly).
Secondly, just because the law wasn’t “racist by design” – by which I take it you mean that the framers of the law didn’t make it with overt racist intent – doesn’t mean that the creation of the law wasn’t strongly influenced by a societally and deeply ingrained racism.
(Its a poorly structured comment, but I’m exhausted. Hopefully I was understandable. Sorry about that.)
In all truth, I think the public perception of crack was that it was INSANELY more dangerous than cocaine.
Doesn’t anyone else remember hearing that people were addicted after one hit, for example? I swear that I must have heard that a gazillion times–and I believed it–though I now know some folks who have tried one or two hits of crack without addiction. There was a huge scare about the method of using the drug (inhalation) and the scientists and drug folks were speculating like hell on how bad it would be.
Also, because crack base and the method of use vastly enhance bioavilability over plain cocaine, you can get more high from a given $$$ value of cocaine (enhancing addiction), or so it was believed back then.
Coke was also usually a “rich man’s high” because it was so expensive. That tended to limit the expansion into an epidemic: it’s part of why, now, you’re much less likely to find a coke addict than a crack addict on the street.
But much more likely to find a coke addict than a crack addict in the board room…
sailorman wrote:
There is a case to be made that the conceptual granddaddy of this kind of sentencing – NY’s Rockefeller drug laws – were racist by design, having been put together by then NY gov Nelson R. to boost his presidential bone fides with Republican primary voters. Tough on drug crime for Republicans in 1973 has a clear racial component, especially when the claim is from a liberal Republican looking to make his bones.
I dunno if “people” were scared of crack as much as they were scared of black crackheads, which is kind of scary squared.
Also, the devastation wrought on the black community by the triple punch of crack, HIV and Reagan was technically pretty insane. The 80s are kind of a scarred border that separates today from the civil rights era. It’s basically what allows a reasonably intelligent black writer like John Ridley to be able to write tripe like the following in this month’s Esquire:
http://www.esquire.com/features/articles/2006/061105_mfe_December_06_Essay_1.html
The above becomes impossible to write without the justifying context of the crack epidemic, it’s associated ills and legacy in the inner city.
Also! The crack epidemic ended not because of tough penalties imposed on dealers (that’s just cost of doing business) but because inner city youth had a front row street to the horrors of being, well, a crackhead, so use aged out. On the streets there is no lower form of life than the proverbial crackhead. The users of the drug, who were actually parents, brothers, sisters aunts cousins and so on, were more fearsomely instructive than any mandatory minimum-wielding prosecutor ever was. From a 1999 National Institute of Justice study:
http://www.ncjrs.gov/txtfiles1/175657.txt
If you were to map that above referenced decline in crack use to incarceration rates, I imagine you would find them to be uncorrelated, meaning criminal penalties don’t get credit for declining use. Crack use has gone down while incarceration rates have held relatively steady.
It’s hard to put this in proper context without assessing the role of race in shaping this kind of perception. Is it a coincidence that the drug used by the era’s most oppressed racial class is perceived as INSANELY more dangerous than anything else? Is it an accident that, criminal sentencing is seen as the way to handle a public health epidemic in that same community?
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