Racist aspects of the criminal justice system have been brought to light by the controversy and disturbances that followed Congress and the President's decision to preserve the crack/powder cocaine sentencing disparity in the federal sentencing guidelines.
Last spring, the US Sentencing Commission voted 4-3 to reduce the crack/powder weight ratio to 1:1 from 100:1. Currently, possession of 5 grams of crack cocaine (which is powder cocaine diluted with baking soda) brings a mandatory 5-year sentence in federal court, no parole; whereas 500 grams of powder cocaine are needed to draw the same mandatory sentence. The Sentencing Commission's vote was taken after they had completed a thorough study of the issue and released a major report, Cocaine and Federal Sentencing Policy. The report noted that "while there may be factors associated with crack cocaine distribution that make it more harmful, sentences under the guidelines can respond to that harm."
The Sentencing Commission's amendments automatically become law on November 1st, if Congress takes no action to nullify them, which has never before happened. This time, Rep. Bill McCullom (R-FL) and Sen. Spencer Abraham (R-MI) filed legislation, H.R. 2259 and S. 1254, to "disapprove" of the amendments; this was passed overwhelmingly. It is important to note, however, that while the bills that overturned the amendment were introduced by Republicans, the language for them was actually drafted at the Department of Justice, under Attorney General Janet Reno and President Clinton. In fact, the President took the opportunity for some Drug War demagoguery of his own, calling for an escalation of powder cocaine sentences, and stating "I am not going to let anyone who peddles drugs get the idea that the cost of doing business is going down."
The sentencing disparity is exacerbated by apparent racial biases within the criminal justice system. Use of crack cocaine is not at all limited to the black community, but white crack defendants are almost always sent to state court, where sentences tend to be much lighter, while black crack defendants are usually sent to federal court, where they face the mandatory minimums. An article in the Los Angeles Times noted that no white person had ever been convicted of a crack offense in the federal courts of Boston, Denver, Chicago, Los Angeles, Dallas or Miami. Research by criminologist Alfred Blumstein has found that about half of the discrepancy in drug incarceration rates between blacks and whites is attributable to biases within the system. These biases are thought to be more the result of subtle policy decisions rather than deliberate racist intent; but the unwillingness of many in the establishment to confront the racist results is problematic.
Congress's vote was widely denounced by African-American leaders, who are acutely aware of the damage done to their community by the Drug War's mass incarcerations. During the debate in the House on October 18, Rep. Donald Payne (D-NJ) said "Our drug policy has become a tale of two cities, or, more accurately, a tale of two classes -- rich and poor," and Rep. Maxine Waters (D-CA) called the crack cocaine mandatory minimums "a mockery of justice." Jesse Jackson wrote "we have a war on the young, vulnerable and black."
The vote came in the wake of a report by The Sentencing Project, which found that currently one in three black men between the ages of 20 and 29 are under some form of criminal justice control. The one in three figure holds on any given day; the total percentage that passes through the system is much greater. The report noted that the economic prospects for this group are bleak, after they leave the system with criminal records. March Mauer, co-author of the report, has written "For the next generation of children, the vision of massive numbers of black males in prison cannot inspire hope."
The ones most affected by the sentencing disparity found their own way of making their voices heard. On October 19, following the vote, the worst prison riots in decades broke out at federal institutions around the nation. The most serious disturbances took place at FCI Greenville, IL, FCI Allenwood, PA, FCI Memphis, TN, FCI Talladega, AL, and FCI El Reno, OK. Millions of dollars in damages were reported, as well as some assaults. The Bureau of Prisons (BOP) responded by ordering a lock-down in the entire federal system, and by moving the "ringleaders, organizers, and those involved in assaults or...other misconduct" to new federal prisons around the country.
Barbara Piggee, founder of the LA-based Families Against Discriminatory Crack Laws, reported that because of her political activities, her son was singled out as an "organizer," even though there had been no disturbances at that institution. Piggee's son had recently been transferred to a prison near Los Angeles, allowing his family to visit more often. According to Piggee, a large team of correctional officers "wearing their ninja outfits" came into the visiting area while the family was present and immediately transported her son to an unknown location. Piggee reports that the BOP has retaliated against children of all her group's members, and that they have effectively been intimidated out of existence.
Prisoners weren't the only ones rioting in the prisons. The Washington-based Families Against Mandatory Minimums (FAMM) received multiple reports from members of beatings in the federal penitentiary in Atlanta. On October 26, responding to a rumored work stoppage, the SORT team (BOP's equivalent of SWAT) entered the prison dorms, randomly handcuffing and beating prisoners. FAMM has received reports of numerous injuries and one death. BOP officials deny that the incident took place, but FAMM's research has found the reports from their members to be consistent. Congressional staffers are requesting an investigation.
While the crack sentences stand for now, there may be seeds for some more modest reform in the near future. The bill that nullified the sentencing reductions contained a provision, attached by Sen. Ted Kennedy (D-MA), directing the Sentencing Commission to review the disparity again and recommend a different weight ratio, more than 1:1 but less than 100. Some players in this latest debacle, including Rep. McCullom, who is chairman of the House Subcommittee on Crime, have indicated a willingness to consider a new recommendation.
Advocates of tough mandatory sentences claim that the higher sentences for crack cocaine are necessary because of the greater toll taken by drugs in the inner city. This argument acknowledges neither the failure of law enforcement to address these problems, nor the damage done to minority communities by the incarceration program. In effect they are saying that the way to save the inner cities is to destroy them.