by David Borden
Over the past few years, the question of crack vs. powder cocaine sentencing has become a symbol of racial inequity in the U.S. criminal justice system. The controversy is that under federal sentencing law, a defendant convicted of possession of 5 grams of crack receives a mandatory minimum sentence of 5 years, while 500 grams of powder cocaine are required to trigger the same mandatory minimum. Last year, the U.S. Sentencing Commission decided that the 5-year threshold for crack should be raised to 500 grams, matching that of powder. For the first time ever, the Commission's recommendations were overturned by Congress. Earlier this year, the Commission came back with an alternative recommendation, raising the crack threshold to 25 grams and lowering powder's to 250.
Though use of crack cocaine in the white community is not uncommon, most arrests, and virtually all federal prosecutions of crack defendants, are of blacks, and powder cocaine enforcement is racially discriminatory as well. Mainstream leaders, including members of the Congressional Black Caucus, have openly denounced the situation, both current and proposed, as racist. Of all current drug policy reform proposals, this one small change may have more public, activist, and official support than any other. It seems like it should be easy. So why are we losing?
It may be that the focus on this one discriminatory sentencing policy is misdirected. Heinous as it is, the 5 gram-5 year mandatory minimum is only the tip of the iceberg of a much larger problem. A 1995 study by The Sentencing Project found that nearly 1 in 3 African American men between the ages of 20 and 29 were under some form of correctional supervision - prison, jail, probation or parole - on any given day, meaning the percentage who undergo correctional control at some time is larger. Astonishing percentages of young black men in our major cities enter prison at some time during their lives. Though data on the number incarcerated for drug offenses are unavailable, the Sentencing Project blamed the dramatic increase in incarceration of the last 15 years on drug policies. While the debate focuses on grams and ratios, opponents of sentencing reform can minimize the problem by pointing to the relatively small numbers of people sentenced under this one federal law, distracting attention from the larger numbers of persons incarcerated, 90 percent at the state level.
And sadly, many Americans today are willing to sacrifice fairness for the sake of "stamping out drugs" or whatever they think is being accomplished. So long as they believe that tough drug enforcement and mandatory minimum sentences are effective approaches to the drug problem, they will set aside concerns of justice, whether they agree with them or not. Indeed, they may think it unfair to not punish inner-city offenders more harshly, given the more severe impact that substance abuse and related problems have in that environment.
Yet their belief is misguided. An officer during the Vietnam War once explained that he had destroyed a village in order to "liberate" it. Today's drug warriors are much like this officer, trying to "save" the inner cities by removing huge numbers of young blacks to prisons for long periods of time. As contracting of prison labor by private industry becomes widespread, many of these men, and a growing number of women, are put to work for compensation that might colloquially be termed "slave wages". Meanwhile, the drug industry out on the streets replaces their lost workers with new young men and women, who can then be sent to prison, etc., etc. Result: bigger prisons, no reduction in the availability of drugs.
We as reformers need to keep the focus on the big picture, dealing with important partial issues like the sentencing disparity but framing them in terms of the larger context.
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