Very interesting article by Glenn Loury in The Boston Review.
Barry’s BlueSky- Untitled May 17, 2024#PoliCartoon: Fat Patients, Fat Patience #FatAcceptance
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Loury is one of the black neocons who jumped ship! :)
This growth in punitiveness was accompanied by a shift in thinking about the basic purpose of criminal justice. In the 1970s, the sociologist David Garland argues, the corrections system was commonly seen as a way to prepare offenders to rejoin society. Since then, the focus has shifted from rehabilitation to punishment and stayed there. Felons are no longer persons to be supported, but risks to be dealt with. And the way to deal with the risks is to keep them locked up.
Accurate and insightful article, Amp, thanks.
Excellent article. Thanks for bringing it to people’s attention.
This must be some strange new usage of the phrase “quitting blogging” that I am not familiar with. This is your fifth post since your “bye bye” announcement. ;)
Lester Spence gives the article a critique here:
http://blacksmythe.com/blog/2007/08/14/glenn-loury-channels-gunnar-myrdal/
I´m not sure crime is currently declining, at least I believe in mid size cities it´s up and in some cities like Oakland it´s way up. I´ve also seen recent references to Philadelphia as Kiladelphia. Crime in Oakland is the top city issue. My strong impression of working class people (of color) attitude in Oakland is that they want more police action on crime not less, which under current social policy means more blacks and latinos in jail.
Yeah, the levels of incarceration are outrageous. I don´t see that changing anytime soon. I did like the Rawls principle in the article.
Shit outta time at the internet cafe.
According to a 2005 report of the International Centre for Prison Studies in London, the United States—with five percent of the world’s population—houses 25 percent of the world’s inmates. Our incarceration rate (714 per 100,000 residents) is almost 40 percent greater than those of our nearest competitors (the Bahamas, Belarus, and Russia).
Based on the news I see out of Belarus and Russia, the problem is not so much that we are locking up too many people but is that other countries need to lock up more.
Do you think the US is comparable in that way to economically collapsing fragments of the former Soviet Union? Personally, I’d be more interested in comparing it to nations like France, Germany, England, Canada, or Japan.
—Myca
Interesting article.
California’s penal system has acquitted itself quite well with threats of federal conservatorship, having its medical care system under federal conservatorship and the studies released showing serious problems with the incarceration of female inmates. The state is shipping inmates out to other states to alleviate its overcrowding and shipping convicted gang members to federal prisons to try to break up the prison gangs which over the years have become closely tied to street gangs in many cities. And people wonder why the crime rate including the violent crime rate is high in some of its urban areas. What’s happening with the prison systems is only part of that picture but it’s symbolic of mis-matched priorities in the golden state at least.
The drug war, is producing more casualties than anything else including in many poorer communities. Many women including women of color are in prisons because of it, in disproportionate numbers. The study mentioned above concerning women found that the female inmate population is doing time in facilities more suited toward violent male offenders.
At the juvenile level, quite a few youth prisons(known as CYA institutions) have been rocked with scandals of sexual abuse and drug dealing by correctional officers.
Many women and girls in the penal system have already been sexually abused before they got there including while growing up.
Many inmates are paroled without any skills to become productive in society that prohibits convicted felons and/or parolees from many jobs, training and housing,. People with drug convictions and other types can’t have access to financial aid at public colleges and universities at all or for a period of years. Many of the people released don’t have high school diplomas. Many if not most of them go into the same neighborhoods they lived in before.
Here, we have community members who want violent criminals to be dealt with but they want a fair system for that process as well because they know what happens here. At the same time, they also want a definitive voice in that process and don’t want to be taken advantage of by law enforcement. It’s sometimes during more desperate times a fine line between the two. Some see both sides of the coin. Others see one side or another, at a time.
It’s probably different in different cities. But even when violence hits neighborhoods here as it does particularly in the summer, most of the people living in it understand many of the points raised in the article as well as the reality of who’s committing the crimes. The two realities aren’t necessarily diametrically opposed from one another.
And influxing more officers in a neighborhood by itself won’t do much. Short term, yes but it’s too expensive to keep them there. They’ll be moved around regularly to put out whatever “hot spot” flares up at a time. They even have cute little mobile stations to haul from one city block to the next.
IMHO, a partial fix…
1. End the drug war.
2. Incarcerate only violent offenders. Give nonviolent offenders alternate punishment.
3. Make prosecutor a civil service position and rate them on justice served, not convictions obtained.
4. Remove barriers on felons once sentence/parole/probation served and time keeping clean, dependent on offense.
Myca,
The difficulty with comparing US criminal statistics with Japan is it doesn’t account for the vast cultural differences. The US is much more individualistic and Japan is much more collectivist, which does lend to Japan’s lower crime rate. Many of their social values plays into crime prevention. And consider that Japan’s jails aren’t the luxury centers that ours are. Now, I’m not saying that our jails are swell places to be, but when compared to those of Japan were inmates are fed a diet of fishheads and rice unless their families bring them food, we treat our prisoner uncommonly well. Aspects like that do lend to difficulties in comparing countries.
Okay . . . well, let’s compare our criminal statistics to any of the other 4 countries I listed, then.
I mean, if every single other functioning industrialized democracy is an exception to ‘the rules’ for one reason or another, then maybe it’s ‘the rules’ that suck, not reality.
—Myca
[shrug] or maybe it’s just a bad comparison. Maybe your own “rules” of what you define as a functional industrialized democracy, or why you believe those criteria are the most relevant to prison levels, make no sense.
I am well aware of the racial discrepancy, having read multiple papers on it. But i hesitate to endorse modifying our criminal statutes to reflect racially-motivated goals.
because really this argument comes down to a series of assumptions, a lot of them.
Take crack.
POC are seriously overrepresented in crack convictions. Crack has unusually high jail time; I haven’t read the guidelines in a while but I think it’s 1,000 times higher than pot by weight.
As a result, this has an enormous effect.
The author describes it as an “effect on POC” (who just so happen to be selling crack.) Obviously, you could just as easily describe it as an “effect on crack dealers” (who just so happen to be primarily POC.)
but stick with his definition for a moment.
One problem for me–and I may not put this very well–is that it runs into the same essentialism/antiracism contradiction that I get confused by in other areas.
POC don’t NEED to sell crack; there’s nothing about “being a POC” that predisposes one to commit crimes of any kind. How can you balance that statement with a claim that the only/best way to reduce the number of POC who get tossed in jail for selling crack is to change the laws, not the behavior of the POC? Why isn’t that tactic equivalent to eliminating the autonomy and responsibility of the POC? What am I missing?
Sailorman, the pot comparison misses the point.
Crack is cocaine. Cocaine is crack. They are the same drug. Despite the urban myths about crack that spread in the 80s, the primary important difference between crack and cocaine is that crack is cheaper by the dose.
Crack cocaine is used by blacks more than whites. Powder cocaine is used by whites more than blacks. How is it not racist to take the same damn crime — using cocaine — and impose sentences 100 times as high on the (nearly all) black folks as on the (nearly all) white folks?
At first, sure, it could conceivably have been an innocent error. But after well over a decade of legislators refusing to budge, even though no one denies that what the laws create is a huge racial disparity in punishments for using cocaine, and even though the official sentencing commissions have recommended fixing the disparity again and again — after that many years, I think the “it was just an innocent error” thing has stopped holding water.
What you’re missing is that white people use cocaine more than black people do, but get punished much less for it. What you’re missing is that it’s unfair — and racist — for society to say to black people, in effect, “behave this way and you can stay out of prison,” when at the same time white people DON’T have to behave that way to stay out of prison.
When blacks and whites face the same penalties for the same crimes in equivalent contexts, at that point what you’re saying will make sense. Not before.
There’s more to it, but that’s my initial response.
How is it not racist to take the same damn crime — using cocaine — and impose sentences 100 times as high on the (nearly all) black folks as on the (nearly all) white folks?
It isn’t the same crime. Morally, in some puritanical intoxication-is-evil sense, perhaps; empirically, not. The social effects of a crime should be taken into account.
Larry opens a business catering to child molesters. For $100,000, you’re flown to a secret location in the mountains of Thailand somewhere and have the chance to rape a child.
Frank opens a business catering to child molesters. For $20, you gain access to an alleyway where you get the chance to rape a child.
The crime is the same – it’s child molestation. The harm done to society is massively different. Larry is going to end up facilitating the rape of a few kids. Frank is going to facilitate the rape of hundreds. Same crime, different environments, different effects. And in the case of enforcement, if you put a detective on Larry’s elite operation, he might get one child rapist a month. Put the same guy on alley detail, and he might catch one a day. If black millionaires are using the first service, while working-class whites use the second one, is putting the cop resources in the place where they’ll stop the most crime still racist?
I’m pretty much opposed to all of our drug laws, from A to Z. But if we’re going to prohibit, I do see a rationale for differentiating drugs on the basis of price, among other things.
But we’re not talking about enforcement (although there
may beprobably is an issue there too), we’re talking about punishment.Scenario:
We have two child rapists in custody, and we have incontrovertible proof of the guilt of both.
Rapist A spent $100,000 to rape a child, and the law says that people who spend that much should get 5 years in jail. (andgoshitsjustacoincidencethattheyremostlywhite)
Rapist B spent $10 to rape a child, and the law says that people who spend that much should get 500 years in jail. (andgoshitsjustacoincidencethattheyremostlyblack)
That’s what we’re looking at.
Even if we focus our energy on catching those who spend $10, and even if the vast majority of the people we catch are those who spend $10, surely you can see that the sentencing discrepancy is racist?
—Myca
There is also a patronizing, but well-intentioned, reason behind stricter punishment for (mostly minority urban) crack users than (mostly more upscale white) powder users.
Some people can handle drugs; others can’t. For those who can’t run, a drug problem can have a devastating effect on their life. The effect can be bad for anyone, but realistically, having a damaging drug problem is less bad for someone with wealth and privilege than it is for someone poor. The pothead son of the wealthy merchant might become an idler, resulting in him having “only” a very good standard of living and overall life outcome. The same idleness translated to the son of the night janitor leads to an absolutely disastrous life.
It makes sense for social signals to be emphasized in proportion to the urgency of the problem being communicated. Bill Gates’ kid being a pothead – or Bill Cosby’s kid being a pothead – aren’t, most likely, going to lead to a big social problem, other than the loss of their native talents. If they get caught, fine, book ’em and let Dad pay the fine. Damn it, it’s Bill Gates’ job to keep his own damn kids straight, and he’s got the leisure time to do it.
The night janitor, not so much. He needs society to help him, by making it painfully clear to his offspring that certain life paths lead to dead grey walls. Even if crack were 100% legal, the janitor’s son who starts on crack isn’t going to be getting into State instead of Yale; he’s going to end up turning to other crime and wind up in jail anyway. Yes, for equity’s sake, we should be prosecuting the rich kids, too, as resources permit – just let me know when all the most at-risk kids have been saved, and we’ll start reassigning detectives.
In the case of cocaine, the way we allocate the resources is to just go after the one specific form favored by the poor (not just poor blacks, poor whites and Hispanics and other ethnic groups all had issues with crack). In the case of pot, the way we allocate the resources is just to make it illegal outside and in public, and be mellow about private consumption – and that, in a classist but socially functional way, makes pot more verboten for poorer folks, who have fewer places to go and less privacy.
It needs to be wielded by someone honestly seeking justice, and there may be times it ought to be wrapped in cotton padding, but people with few advantages need The Man to hold a big hammer. The rich can pay for their own discipline.
Or so goes the theory. And patronizing or no, I’m inclined to agree with it, within reasonable bounds. If it’s racism to apply this logic to black people – I see no reason why it wouldn’t apply to any ethnic group – then at least it is racism motivated by a desire to see good outcomes in the population in question.
Even if we focus our energy on catching those who spend $10, and even if the vast majority of the people we catch are those who spend $10, surely you can see that the sentencing discrepancy is racist?
The guy who spent $100,000 took it out of the trust fund Grandma left him. The guy who spent $10 beat up his sister for the money. Would it be racist to treat those guys differently, even if the first guy was white and the second guy was black?
The guy who spent $100,000 looted it from an S&L that ripped off war veterans and civil rights activists. The guy who spent $10 had earned the money at his 9-5 job and had plenty of leisure time and cash for fun drugs. Would it be racist to treat those guys differently, regardless of the skin tone of either of them?
Consider the population of actually existing cocaine users – suburban housewives, Hollywood leeches, ghetto teens, Mexican capitalists, everybody – and judge whether it looks more like scenario A (rich people spending their surplus, poor people wrecking their futures), or more like scenario B (Paris Hilton destroying the world, crackheads with savings accounts and comfortable lives over the long term). The different distribution is partially the result of racist practices, past and present – but the distribution exists, regardless of its cause. And it’s the actual distribution that the criminal justice system has to be tuned for.
Isn’t it always anti-racists who say that equal treatment isn’t always equal justice?
Surely, some of the people who wanted those laws configured the way they’ve turned out had racist motivations. We live in the shadow of centuries of terrible racism, much of which is ongoing. At the same time, whether we agree with the policy or not (I myself strongly do not), it is possible for it to be supported by reasons other than racial animus.
Myca, after seeing the pictures from France of disaffected youth running around the streets of Paris and it’s suburbs and setting cars on fire and hearing the news about Paris arrondissments where young women are risking their lives if they walk around with their hair showing or if they wear tight T-shirts and that the police refuse to enter, I think they could usefully lock up a few more people too.
As far as comparing the U.S. to Japan; their form of government may be Western, but their culture definitely is not. Individuality is suppressed, women don’t hit a glass ceiling, they hit a concrete one, etc., etc.
When I was on my trip there, one of the kids left an expensive camera in a public place with a lot of pedestrian traffic. We were a block away on the bus when she discovered she’d left it behind. She was upset that she’d lost her camera. The bus driver ran the bus around the block while the guide told the girl not to worry; the camera would either be exactly where she left it or in the hands of the nearest cop. When we finally got back there, it was, in fact, in the hands of the nearest cop, who BTW had no thought of asking her to give any proof whatsoever that it was in fact her camera – he took her word for it. I’m told the same thing would happen with a wallet full of cash. When that is a commonplace in an American city, then it would be more useful to compare crime and incarceration statistics.
Like Robert, I’m sure racist motivations played a role in the promulgation of current laws mandating disparate punishment of crack & powder cocaine users. I also grant that it’s possible to concoct rationalizations for existing law that don’t rely on explicitly racist premises – it always is – but I wonder what’s the point of the exercise, unless Robert imagines the rationalizations either explain current law & policy, or justify it, notwithstanding its tainted origins. I’m skeptical on both counts.
The argument apparently is that racial disparities can be rationalized on non-racist grounds just in case they’re an artifact of class disparities, which, in turn, can be rationalized just in case we presume that poor users have committed other, uncharged crimes to support their use, while rich ones haven’t needed to commit any. So it’s not racist to punish (disproportionately non-white) poor users more harshly than (disproportionately white) non-poor users for the selfsame offense if you assume that the former, by virtue of their relative poverty, are more likely to have committed other, prior uncharged crimes to support their use.
This line of argument has always been viewed skeptically, with good reason. There are, first of all, sound reasons to question the justice of punishing someone more harshly for a given offense on the basis of an unproven hunch, based solely on her economic class, that she may have committed some sort of other, uncharged offense incident to the one of which she was actually convicted. (And what sort of other crime? Taking money out of mom’s wallet? Bank robbery? Murder? Or doesn’t it matter much?) But even if you accept this line of reasoning, isn’t the more sensible policy not, for example, to sentence crack & powder cocaine possession differently, but to appeal directly to the underlying rationalization & explicitly include economic status in the sentencing guidelines, to punish poor people more severely than rich people for the same offense, just because they’re poor? The more direct approach avoids the awkwardness of over-sentencing a rich non-white crack cocaine user, who’s just spending money from the trust fund Grandma left her, & under-sentencing a poor white powder cocaine user, who we might presume got the money by beating up her sister.
Or aren’t we well down the road to absurdity here?
(I add a related personal note. I’m well acquainted with a stolidly middle-class white lady who was a heroin addict for much of her adult life, & who – drugs being the force for social equality that they are – knew a number of poor non-white addicts. And at least in her case – which was hardly unique – the criminal justice system treated her profoundly differently from her acquaintances, for no other reason than her race & class, & without the least pretense of inquiring whether she’d committed any other, uncharged offenses related to her habit. Whereas the fact of the matter was that, notwithstanding her middle-class status, she was probably as much a force for social disorder as her poor friends. She was just judged lightly because of the way she looked.
Perhaps, to recycle some language from Robert’s #15, there were also patronizing, but well-intentioned reasons behind her milder treatment. Some people can handle draconian punishment for drug offenses; others can’t. For those who can’t, imprisonment for a nonviolent drug conviction can have a devastating effect on their lives. Realistically, maybe the damage is more severe for someone used to wealth & privilege than it is for someone poor. So maybe justice suggests, even demands, the current preferential treatment of white, middle-class drug offenders. Or is this a bridge too far even for Robert?)
Robert – talk to you after the at-risk kids are saved? Saved? We’re not saving them. We’re tossing them in jail, giving them no, or ineffective rehab, and throwing away the keys!
Talk to me about the justice of concentrating law-enforcement attention on drug-use in the poor when said attention actually leads to poor people getting rehab and getting their lives together.
IOW – why are the richer white kids, who can likely get job skills to get income even with a record, getting rehab and community service, while the poor kids, with few or no job skills, are being tossed behind bars, when rehab and community service would probably do them a world of good?
Robert – talk to you after the at-risk kids are saved? Saved? We’re not saving them. We’re tossing them in jail, giving them no, or ineffective rehab, and throwing away the keys!
It’s not the ones getting thrown in jail who are being saved. It’s the ones who (theoretically) avoided the negative behavior because of its severe consequences who are saved.
Talk to me about the justice of concentrating law-enforcement attention on drug-use in the poor when said attention actually leads to poor people getting rehab and getting their lives together.
Poor people who are on drugs are fucked, Tapetum. Rehab will help a few – but rehab mostly doesn’t work. People who didn’t have much of a life to begin with won’t be “getting their lives together” after a run of addiction – they’ll be completely and permanently fucked, for the most part. That’s why if we want to help them, we have to stop them from falling down the well in the first place.
I am not interested in justice, because I don’t know what justice is or how to achieve it. I am interested in outcomes. The outcomes of our criminal justice system vis a vis drugs are pretty uniformly terrible, but they are terrible because they are grounded in a prohibitionist mindset, not because the cops and courts are being mean to blacks. (They probably ARE being mean to blacks – but that isn’t the root cause of the bad outcomes.)
People with few advantages need The Man to hold a big hammer.
Robert, your consequentialism is suspiciously selective. You insist that the same act should be punished differently according to its different consequences (and thus, according to who commits it).
(Note, in passing, the tension between pure consequentialism and any system based on equal and inalienable rights. Have you really thought this through? Your self-subverting disavowal of any interest in justice suggests not.)
But you take only the most casual notice of the consequences of the draconian carceral regime you defend, and that mostly to praise its alleged benign disciplinary and deterrent effects. In the real world, there’s ample research documenting the deeply destructive consequences contemporary US criminal justice policy wreaks on poor and minority communities. Your “big hammer” does more harm than good. Or do you know something that the research literature misses? Give us a reason to take you seriously.
1. As I understand it the congressional black caucus had a big hand in writing the crack laws. That doesn´t make them legit, they are horrible laws, but leaving these kind of facts skews “our” understanding of the dynamics of how and why things happen. Undoing these laws means getting primarily the black community to support it, however there is absolutely no urban momentum for changing drug law policy. If Oakland is an example (like I mentioned above), if anything there is a demand for more police and that´s in probably one of the most liberal cities in the country (Barbara Lee is our representative).
2. Comparing suburban and urban drug dealing is a bit of comparing apples to oranges. There is a lot more violence in urban street dealing whereas in the suburbs must dealing is behind closed doors. Violence attracts the police not dealing in itself.
Drydock, that’s the first time I’ve heard that claim made. Do you know what the source of it is?
I frankly doubt that’s true, but I also think it’s besides the point. What’s important is not just the origins of the laws, but how and why they remain in place. And the 100/1 disparity between punishing black and white cocaine users has remained in place over the repeated objections of the Congressional Black Caucus. See this article from CQ, for example:
If the congressional black caucus’ constituents are really against changing the racist effects of crack cocaine laws, then that hasn’t had much of an effect on what the members of the congressional black caucus are saying about sentencing disparities.
Back to quoting Drydock’s comment:
The demand for “more police” and the demand for equality in sentencing are not contrary. I don’t know if there are any polls that address this specific question, so there’s no way to resolve this. But I really don’t think it’s true that most Black people favor 100/1 sentencing disparities between one form of cocaine and another, that have the effect of protecting white people from the punishments blacks are routinely subjected to.
I thought that this lengthy quote, from Human Rights Watch, was relevant. Normally such extremely lengthy quoting is discouraged on “Alas,” but as a moderator I get to make an exception for my own case. :-)
I’ve added bold in the bit that best supports what I’ve been saying, but left in place other stuff that supports what other folks have said.
So not, not all the elements that go into the huge disparity in prison time for using cocaine are directly motivated by racism. I certainly acknowledge that. But racism is a part of it, both indirectly — as part of the reason black people are disproportionately in poor neighborhoods, for example — and in a “why didn’t the dog bark?” way.
If it were white suburbanites who were being treated this way just because that’s how things worked out, the system wouldn’t find that acceptable. It would get changed. It would get fixed. In contrast, a huge inequality of sentencing that just happens to mean that blacks are punished 100 times as much as whites for essentially the same crime is something that our system accepts and that people make excuses for.
If you want to see the disparity reduced, then vote along with Senator Hatch (R-UT). He’s introduced a bill to change the ratio from 100:1 to 20:1. Republicans for drug leniency, unite!
(OK, in fairness, Joe Biden (D) favors the bill. It’s bipartisans for drug leniency.)
In contrast, a huge inequality of sentencing that just happens to mean that blacks are punished 100 times as much as whites for essentially the same crime
I think that’s inaccurate. The trigger for a certain mandatory minimum sentence is 100 times lower for crack than for powder. That’s not the same thing as blacks being punished 100 times as much; it’s not like you get 1 year for having $5 worth of powder and 100 years for having $5 worth of rock.
From this article:
So basically to avoid the five-year minimum, you can’t have more than, say, $50 to $250 worth of crack on you, but you can get away with having $5000 to $25000 worth of powder cocaine. It amounts to making it harder to be a low-level crack dealer (or serious user) than to be a low-level cocaine dealer (or serious user).
Is that really such a terrible message to send? Which of those two populations are most destructive to society? To society’s most vulnerable members?
If it were white suburbanites who were being treated this way just because that’s how things worked out, the system wouldn’t find that acceptable. It would get changed. It would get fixed.
Broadly, I agree.
With all due respect, Robert, if Republican congress members cared at all about this issue, they could have easily reformed sentencing inequalities in the years they’ve had uncontested control of the government. The reason they didn’t is because they didn’t want it reformed.
The only reason some republicans are pushing a racial disparity of “only” 20 to 1 now is that they’re worried the current 100/1 ratio won’t be sustainable if liberal Democrats gain enough power in 2008 or 2010. They’re hoping that a merely outrageous 20/1 disparity will be easier to defend than an utterly insane 100/1 disparity. (Note that I say “liberal Democrats”; I suspect many centrist Democrats would be just as racist on this issue as the Republicans are).
Robert
You offer no reason to believe that people convicted of possessing 5 grams of crack cocaine are on average as “destructive to society” or its “most vulnerable members” as people convicted of possessing 100 times as much powder cocaine. Nor is the crack/powder distinction a useful proxy for some other criterion that identifies harms of such disparate orders of magnitude.
Nor – even on narrowly consequentialist assumptions and accepting your avowed indifference to issues of justice – is that even the relevant question. When evaluating alternative sentencing regimes, the relevant question is the total consequences of the enacted policies, not just the (alleged) consequences of individual instances of the offenses being punished. If, for example, current policy has little effect on the availability and use of cocaine (in either form and in any community), and itself imposes large harms on society, above all on its most vulnerable members, then casual, ill-grounded speculation about how much more dangerous one form of cocaine is than another is an especially poor guide to policy. You’re attempting to do policy analysis without accurately counting either all the costs or the benefits of the alternatives.
Current sentencing guidelines do indeed “send a message,” which is inscribed on the bodies of untold numbers of the most vulnerable members of society – not only the men and women who they exile to our society’s burgeoning carceral archipelago, but their families, partners, children, and whole communities. These consequences, which you pass over so casually, are something much worse than just “a terrible message to send.”
Amp is right about the Congressional politics of sentencing guidelines. Liberal Democrats & members of the CBC have introduced legislation to eliminate the powder/crack disparity in every session of every Congress since the Anti-Drug Abuse Act of 1986 was enacted, without success. And conservative Republicans, including Sen. Hatch, have consistently been among the most obdurate obstacles to reform. His current proposed half-measure, whatever his ulterior purpose, is a modest improvement, but does nothing to redeem the untold lives that have been diminished during (and partly as a result of) his two-decade long history of demagogy in defense of this indefensible law.
KH, I’m not trying to justify the current system as the best of all worlds, or even as particularly functional. I’m trying to explain the reasoning of the people who created it.
Personally, I’m a fairly hard-core libertarian. I’m so hardcore that I even believe in letting people do things that I don’t happen to personally approve of. ;)
The demand for “more police” and the demand for equality in sentencing are not contrary. I don’t know if there are any polls that address this specific question, so there’s no way to resolve this. But I really don’t think it’s true that most Black people favor 100/1 sentencing disparities between one form of cocaine and another, that have the effect of protecting white people from the punishments blacks are routinely subjected to.
Robert, You’re too modest. If you’re trying to explain the behavior of the 99th Congress & the passage of P.L. 99-570, you’re also simultaneously making a number of factual claims & offering a number of purportedly rational arguments about the differences between powder & crack cocaine & the rationality of their current disparate treatment in criminal law. You say what you say with assertoric force, not just as speculation about what members of Congress might have thought. I understand that some of what you say involves second-best reasoning, but you do state views of your own. For reasons I won’t repeat, I think you get both the facts & your inferences wrong.
It’s an additional matter – which occupied a smaller part of the thread – that you think claims & inferences like yours played a role in the passage of the 1986 Act. It’s not unheard of that mistaken claims & false inferences influence new laws, but having gone to work on the Hill a year after the Act passed, & retaining some memory of the way things work there, I’m dubious that your particular claims & inferences played much role in its passage. Congress is a political institution, & in 1986 was in the midst of a moral panic over crack cocaine, rap music, black gangs & rising crime – a perfect confluence of wedge issues, joined together in a single syndrome –, & the (weakened & half-demoralized) Democratic majority was flailing around for a way to blunt Republican exploitation of the issue. (Remember Lee Atwater, Just Say No, Len Bias & Willie Horton?) So rational policy analysis & measured consideration of the social consequences of legislation played an even more limited role than usual in the passage of the Act. Indifference to rational considerations, not some collective failure of rationality, accounts for its gross defects. In this it’s like a lot of crime legislation.
You needn’t restrict yourself to idle speculation about the Act. If you’re really interested in the thinking of the people who passed it, you might begin by consulting the usual sources for the legislative history.
Didn’t find any source for that, but according to Answers.com, “[f]ully half of the African-American representatives in Congress voted for the act, many of them emphasizing the harm that crack use was causing to black communities.” As authority, Answers.com cites Randall Kennedy’s Race, Crime, and the Law (1997), Michael Massing’s The Fix (1998) and David F. Musto’s The American Disease: Origins of Narcotics Control (3d ed. 1999).
Perhaps, although the Second Circuit Court of Appeals suggests that may not be very fruitful.
[T]he Second Circuit in United States v. Castillo, 460 F.3d 337 (2nd Cir. 2006) …. observed “the speed with which the 1986 Act moved through Congress….” Id. See also: United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy, February 1995 (“1995 Report”), at 116-17. The speed of enactment left no legislative trail relative to Congressional intent, especially for the 100:1 ratio – except for scattered statements by various lawmakers. Lacking any real “on-the-record” Congressional intent for clarification, the U.S. Sentencing Commission in its 1995 Report adopted “five congressional conclusions” to determine legal basis for the “100:1 crack/powder ratio” …:
• The “extraordinarily addictive nature of crack cocaine, both in relative and absolute terms;
• The higher correction between crack cocaine use and the commission of other serious crimes than with other drugs;
• The ‘especially perilous” physiological effects of crack cocaine;
• The sense that “young people were particularly prone to using crack cocaine”; and
• The increasingly widespread use of crack cocaine because of its high potency, low cost, and ease of manufacture, transportation, and administration.
Id., 1995 Report, at 118; United States v. Castillo, supra, at 345.
But see testimony of Eric Sterling, Assistant Counsel to the House Subcommittees on Crime and Criminal Justice when the bill was drafted:
How did the 100 to 1 ratio of 500 grams of powder to 5 grams of crack come about? The suggestion that this ratio was based on a Congressional finding or understanding that crack was a “black drug” and powder cocaine was a “white drug” is false. Congress may have believed that the crack problem in 1986 was particularly acute in poor black urban neighborhoods, but that did not drive the selection of the quantity triggers.
Responding to the inflammatory idea that the ratio was designed with race in mind, an alternative narrative has been constructed – equally unfounded – that Congress determined that crack was much more dangerous than powder cocaine and therefore more deserving of greater punishment than powder cocaine on a weight basis. This is completely untrue as well.
I was at the table in 1986 when this bill was being drafted. The Subcommittee on Crime was attempting to apply higher punishments in the mandatory sentences strictly on the basis of the more significant role of the offender in the drug trafficking pipeline. Higher-level traffickers were to be punished more severely. Based largely on information that I obtained from an expert consultant to the Select Committee on Narcotics Abuse and Control, a Metropolitan Police Department narcotics detective named Jehru St. Valentine Brown, the Subcommittee concluded that a trafficker in 20 grams of crack cocaine was trafficking at the same “serious” level in the marketplace as a trafficker in 1000 grams of powder cocaine. We believed a “major” trafficker could be identified if he trafficked in 100 grams of crack or 5 kilograms of powder cocaine. This is spelled out in the report of the Committee on the Judiciary (H. Rept. 99-845, Pt. 1, pp.16-18). Coincidentally, these both were a ratio of 50 to 1. There were no findings regarding addictiveness of crack, the prevalence of in utero cocaine exposure (i.e., “crack babies”), or violence in the drug market, or other measures of harmfulness or dangerousness of crack vis a vis powder cocaine.
So basically it does boil down to how we’re going to treat drug dealers, not ordinary citizens. Wow, I started out in general agreement that the ratio is absurd (though defensible on non-racist grounds) but now it might actually be a reasonable tradeoff. (Although my street intuition tells me that the dealer-magnitude equation would be more closely fitted to a ~20:1 ratio than a 100:1.)
Thanks nobody.really. — I couldn´t find a source though I thought it was John McWhorter (who opposes the drug war). I did find the 301 co-sponsers list of the 1986 anti-drug abuse act and they were quite few blacks representives on it including the now inept leftist Mayor of Oakland, Ron Dellums. From looking around the internet this law seemed to be inspired by college backestball star Len Bias´s death and Tip O´neill the democratic speaker of the house seemed to spearhead the whole thing.
N.R does well to refer to the recent testimony of Eric Sterling, who was leg. counsel on the Crime Subcommittee when the 1986 Act was drafted. He is on all evidence a basically decent guy, & since 1989, as president of the Criminal Justice Policy Foundation, has devoted his career basically doing penance for his role in 1986, & in particular to undoing the 100:1 ratio. (I leave it to others to explain why neither he, nor the consensus of other experts on the subject, nor the undisputed evidence of the mounting havoc wreaked by the 1986 Act, including its disparate racial impact, has moved Congress to modify it in the intervening twenty years.)
Sterling’s quoted reference to the role of Johnny “Jehru” St. Valentine Brown, a DC police detective, points to an especially grizly irony. He refers to the influence of Brown’s “expert opinion” that a person who sells 20 grams of crack cocaine is (in some undefined sense) as “serious” a factor in the drug market as a person who sells 50 times as much powder cocaine. That still gets us only halfway to the 100:1 ratio, but according to Sterling, Brown’s testimony was part of the context in which the Act was drafted.
But there was a problem, or three. There was no empirical basis for Brown’s 50:1 ratio, he himself was a thoroughgoing charlatan & liar, & it’s unclear how much any empirical evidence, real or fabricated, could have influenced Congress, which clearly was driven by its own political imperatives. As Sterling recalled elsewhere:
“My reliance on Brown’s experience, authority & qualifications were a mistake that only became clear in recent years. Brown’s expertise was utterly unchallenged until 1999. Two civil attorneys had been appointed to represent two drug defendants in the D.C. court. Peter Grenier & Saul Singer did what they always did when facing an expert witness, they did the investigation to check out his credentials. Unlike hundreds of criminal defense lawyers who had prepared to cross examine Brown, these attorneys discovered that Brown was not, as he usually testified, a graduate of the Howard University School of Pharmacy. Brown was not, as he usually testified, a licensed pharmacist. He had not served as a homicide detective, as he usually testified. Brown had testified in something like 4000 narcotics cases, & possibly lied in every one of them.
“Did Brown lie to me about the quantities of drugs that were indicative of high-level or mid-level drug traffickers? Perhaps, but it probably didn’t matter. Members of Congress were intent on using their own judgments about drugs, even though they lacked any real knowledge of the drug market or any fluency with the metric system. Certainly the quantities that Congress used as the basis to trigger long mandatories were not indicative of high level trafficking.”
Eric E Sterling, “Tales of a Recovering Drug Warrior,” in Under the Influence: The Disinformation Guide to Drugs, ed. Preston Peet, pp. 80-94 (NY 2004), at p. 92.
Brown was convicted in 2000 in federal court of perjury for lying under oath about his credentials as a drug expert. He had routinely falsely claimed in court to be a board-certified pharmacist & had a doctorate in pharmacology. The following year, he was also convicted of (crudely) forging letters of commendation from various public officials, which he submitted to the court before sentencing on the perjury charge. But his convictions & imprisonment didn’t undo the damage his fraudulent testimony helped set in motion by encouraging Congress, to whatever degree, to consign untold numbers of low-level porch-step dealers & ordinary non-dealing users as if they were high-level trafficking kingpins. (Ordinary non-dealing addicts routinely carry enough of the stuff for their own use – a few days’ worth – to trigger the threshold, & not infrequently are falsely arrested, convicted, & sentenced for intent to distribute. One can only wonder how many “ordinary citizens” in DC, where I live & Detective Brown worked, were convicted & sentenced to long terms in part on the basis of his false testimony.)
Robert’s “street intuition” (about which I’d love to hear more) notwithstanding, there’s absolutely no evidence either that the 100:1 ratio “might actually be a reasonable tradeoff” or that the 20:1 ratio “more closely fit[s]” what he calls “the dealer-magnitude equation.” His idle & ill-informed speculation might be more amusing if so many lives hadn’t been wrecked by this unjust law.
Drydock is right about O’Neill’s role. For further background, see:
http://blogs.salon.com/0002762/stories/2006/06/18/lenBiasTheDeathThatUshered.html
http://www.pbs.org/wgbh/pages/frontline/shows/snitch/procon/sterling.html
Alas, the atmosphere of ignorance, charlatanry & hysteria described in these sources continues to shape drug law & policy to this day.
[Incendiary remark deleted by Amp.]
I agree with the first statement. Here, there’s no support for the disparities in sentencing laws even though there’s support for locking up drug dealers.
So violence attracts the police, not dealing? That depends on the area, city or town perhaps. Right now, the focus is on busting marijuana medical dispensaries with the feds. How much violence is associated with these?
Most people including those in areas where violence is a problem wish that same amount of attention was spent on meth dealers and/or producers. There’s much more violence associated with meth dealing and even meth users, perhaps at least here more than was associated with crack cocaine(where most of the violence is gang-related), yet the latter gets more attention than the former and is treated more severely all around.
There’s a lot of substinance crime associated with meth. Yet, it’s the marijuana dispensaries getting the attention and resources. They are seen as the big threat.
I have to say, I never had a family of neighbors who were shot at while eating dinner by anyone who had anything to do with a marijuana dispensary like I have with anyone involved in meth.
I am surprised to hear the CBC would have been involved with the disparities in sentencing as well.
Oh yeah – meth.
Since we’re discussing “The Prison System: Jim Crow’s Modern Face,” I’ll be interested to learn how meth affects this assessment. As I understand it, meth labs stink. Literally. So to make meth, people have needed a lot of spaced. This has led to meth being the drug of choice in rural (read white) areas. Is meth lightening the complexion of our prison populations? And if so, what does this say about the Jim Crow thesis?
Actually, no you don’t need a tremendous amount of space to make meth. Space inside of an apartment in an urban area works for meth production and in fact, labs had to be cleaned out by HazMat crews, which also means that anyone within 400 feet may have to be evacuated until that’s done.
And yes, they do stink. And they can be dangerous both in terms of explosions and fires during production and can cause serious health problems for those who live in dwellings after the lab is gone. Decontaminating a meth house is very expensive and laborous.
Meth is um, “lightening the complexion” as you call it of courtrooms here in terms of drug diversion for those who possess it but don’t deal in it perhaps, but I’m not sure it’s lightening up the prison population.
It is true both that meth labs produce noxious fumes and byproducts, and that meth users are disproportionately non-Hispanic whites in western states, including non-urban areas, but the latter has little to do with the former. Users’ choice of drugs is a bit of a mystery, but these areas and demographic groups have a long history of amphetamine and other stimulant use. As meth use spreads eastward, police and researchers anxiously await signs of increasing use beyond the established non-Hispanic white demographic.
As Radfem notes, it is a myth that meth production is only possible in remote areas. Most of the mom-and-pop labs seized in recent years have been in populated areas. In any case, the point is increasingly moot, because recent federal restrictions on the production and sale of meth’s precursor chemicals (ephedrine, pseudoephedrine) have reduced the amount of it produced in local table-top labs and increasingly pushed production offshore (in the process increasing its average purity and integrating it into established distribution networks for cocaine, marijuana, and heroin).
Amphetamines were traditionally deemed to be less dangerous than cocaine, and the federal government was slow to react to the current meth epidemic (for a disputed combination of reasons, including the traditional western regional concentration of the problem, DEA’s perseveration on other priorities, such as marijuana, and, according to some reasonable people, users’ less threatening racial complexion), but the last Congress (under the bipartisan leadership of Rep. Souder and Sen. Feinstein) did enact tough new anti-meth legislation. (Without disputing the nastiness of either drug, current Congressional attitudes toward meth reproduce in more muted form some of the hysteria that accompanied the 1986 Act, and can be expected to produce of the same unanticipated negative effects.) While meth arguably is still treated less harshly than crack, the combination of increasing meth use and the new penalties will undoubtedly increase the number of non-Hispanic whites serving serious prison time. A lot depends on the future course of the ‘epidemic’ (some experts dispute whether it really is one), but it will be a interesting natural experiment to see whether the political system so casually tolerates, over the course of decades, the imprisonment of non-Hispanic whites at rates comparable to those it has tolerated among nonwhites under the provisions of the 1986 Act.
One more thing: w/o denying that stimulants can increase the propensity for violence, it’s important to remember that much of the violence associated with illegal drugs is an artifact of their illegality. The same was true of alcohol during Prohibition, and although nobody now imagines that marijuana (or, for that matter, heroin) intrinsically causes violence, the illegal trade in these drugs is notably marked by violence.
Actually, meth use itself can cause more violent behavior over time due to paranoia and auditory hallucinations. I’ve seen it, unfortunately including one incident where a man was assaulted and kicked on a city street. Plus, even though it’s not an expensive drug, property thefts including that of aluminum and copper sources has gone up.
Won’t be tolerated. As you know, criminals are individuals with darker skin than White. White and Black drug users aren’t treated the same. Here, even if nonviolent, Black users are more likely to be also charged with “resisting arrest” which disqualifies them from diversion programs including Proposition 36, than are White users even if the arrests are similar. Black drug users and dealers are more likely to be seen as involved in gangs when they can be individuals or in gangs, whereas meth users and dealers are seen as being more individuals which means no gang enhancements to interfer with diversion for users. This is even though certain White gang members and even Latino gangs deal in meth. The Latinos are treated more as a gang involved in it than Whites, but then White gangs are most often referred to as “groups” rather than “gangs” even when they satisfy the terms of the legal definition.