How the debate over crack cocaine sentencing has moved beyond race
In 1986, amid America’s crack epidemic and the associated violence in inner cities, Congress decided to punish possession of five grams of crack as harshly as it punishes possession of 500 grams of powder cocaine. Known as the 100:1 disparity, this law has inundated prisons with low-level crack dealers, the vast majority of whom are African-American. Congress has debated this policy for years, and various proposed House bills aim to eliminate it. While the perception of racial injustice will bring these bills to the floor, the debate is really about the fairness and efficacy of mandatory minimum penalties, which appear likely to be reduced and deemphasized in the future.
Moving Beyond Race
Scientific research has shown that crack and powder cocaine have the same physiological effects; the method of intake produces only slight variations, and crack is not nearly 100 times as potent as powder cocaine. This evidence has led to wide acceptance, on both sides of the aisle, that the justice system should treat the two substances identically. Rep. Bobby Scott (D-Va.) sponsored a bill to remove references to “cocaine base” in the federal code, thereby treating all crack offenses under the existing powder cocaine laws. That bill passed the Subcommittee on Crime, Terrorism, and Homeland Security by a unanimous vote and passed the House Judiciary Committee by a 16-9 vote.
A bill that would, conversely, treat all powder cocaine offenses under the existing crack laws would do just as much to eliminate the racial disparity. Rep. Roscoe Bartlett (R-Md.) has sponsored such a bill, although it is in no way a serious competitor to the Scott bill. Lisa Wright, an aide to Rep. Bartlett, gives the same reasons in support of the Bartlett bill that the proponents of the Scott bill give for it; as she told the HPR, the “disparity was not justified” and the penalties “should be equalized.”
Mandatory Minimum Penalties
Accordingly, racial justice alone cannot explain the success of the Scott bill over the Bartlett bill and other alternatives. The larger issue of mandatory minimum penalties – in particular, their fairness and efficacy – drives the crack cocaine debate. Although mandatory minimums are ostensibly fair because they treat all offenders the same, they create a strong incentive for defendants to plead guilty, the only way to receive a reduced sentence. Guilty pleas in turn give prosecutors the power, traditionally reserved for judges, to determine sentences. Furthermore, there is concern that the strong incentive to plead guilty diminishes the right to a fair trial. Scott Burns, Executive Director of the National District Attorneys Association, told the HPR that the number of plea bargains changes the dynamics of drug prosecution because prosecutors “don’t have to call witnesses,” thus reducing “don’t snitch” intimidation. Although witness intimidation certainly is not a social good, the virtues of leaving witnesses anonymous are not without question.
The impact of mandatory minimums on communities is more frequently debated. One view is that they help keep criminals off the streets. Tim Richardson, Senior Legislative Liaison for the Fraternal Order of Police, told the HPR that, “Recidivism is the number one cause of crime,” the implication being that longer sentences make it harder for offenders to get out and commit another crime. But as Marc Mauer, Executive Director of The Sentencing Project, commented to the HPR, it is “hard to distinguish between victim and offender”; for example, a law-abiding mother could suffer from having a son face a long mandatory prison sentence. He continued to explain, “drug epidemics burn themselves out after three to four years,” and the decline of the crack epidemic “predate[d] any legislative response,” thus calling into question the effectiveness of mandatory minimums targeted at particular drugs.
Implications for Future Policy
The congressmen who supported the 100:1 disparity 23 years ago, especially those representing the affected communities, have come to view it as a failed policy; instead of suffering from violence and a drug epidemic, these communities now suffer from a dearth of young men. The success of the Scott bill, which appears likely to pass the House, would represent a shift to oppose mandatory minimum sentences as unfair and ineffective. While perceived racial injustice has motivated crack cocaine sentencing reform, if the spirit of this reform is applied consistently, it will lead to widespread mandatory sentencing reform as well.