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.