Democrats are scared of crime. It’s not that they fear being victimized by a criminal any more than Republicans or independents do; they are scared of crime’s political salience. Since the 1988 election, when Democratic nominee Michael Dukakis was pilloried for supporting a prison furlough program in Massachusetts that resulted in the release of Willie Horton, a convicted murderer who didn’t return after his weekend release and went to rape a woman and assault her fiance, Democrats have been loath to appear “soft on crime.” That may be changing — the Obama administration has taken a big step towards decreasing the punitive nature of our criminal justice system by recommending that Congress eliminate the disparity in federal sentencing between crack and powder cocaine.
If Nancy Reagan’s appearance on Diff’rent Strokes or Wesley Snipes’ performance in New Jack City isn’t a cultural touchstone for you, here’s a brief rundown of how the federal government treats two essentially identical substances.
In 1986, there was an understandable panic over hard drug use and violence, especially in inner cities. Although crime and drug use had been going up since the 1960s, by the mid to late 80s many thought that drugs were destroying the social fabric of urban areas. The assumption was that drugs were turning urban areas into unlivable war zones, populated by heavily armed gang members, zombie-like drug users and feral children, abandoned by their families and society, who were irretrievably developmentally disabled due to their mothers’ crack abuse.
Now, it didn’t matter that this picture was exaggerated and played on deeply embedded cultural tropes about urban areas and their black residents, but it was the perception that was driving the national conversation on drugs. Add on the tragic death of Len Bias, who died of a heart attack, likely induced by (powder) cocaine, less than two days after being drafted second overall by the Boston Celtics, and there was full-blown hysteria. A few months later, bipartisan majorities passed the Anti Drug Abuse Act of 1986. What made this piece of legislation so notorious was that it introduced the 100-1 crack/powder cocaine disparity.
The way the disparity works is that if you’re prosecuted and convicted by the federal government for possession of five grams of crack cocaine – which is powder cocaine treated so that it can be smoked – you face a five-year mandatory minimum sentence. The threshold for the same mandatory sentence for powder cocaine is possession of 500 grams. For a mandatory ten year sentence, it’s 50 grams and 5,000 grams respectively. For all of you who think the metric system is for effete Europeans, you need to be caught with 11 pounds of powder to face the same sentence as less than a tenth of a pound of crack. The justification was that many thought that crack was especially addictive and made people more prone to violence.
But experience and common sense have shown these premises for the disparity to be flimsy. Although it’s true that crack, because it’s smoked, gets someone high more quickly, the basic effects of the two drugs are the same, and it’s not at all clear if a slightly stronger association between crack and violence justifies such a distorted sentencing structure. Crack is preferred by many drug users because it’s cheaper and provides a quicker high, but there is hardly a 100 times difference in the effect of the drugs.
As usual with America’s relationship with crime, there is a nasty racial undercurrent to this highly punitive policy. The overwhelming majority of those arrested for crack cocaine possession, and those prosecuted under the federal sentencing guidelines, are black.
Even if there were no racial disparity in prosecution or imprisonment, and even if the guidelines were totally well intentioned (Rep. Charlie Rangel and Rev. Jesse Jackson were both notorious drug warriors in the 1980s), they’re still bizarre anachronisms. The amount of panic and hysteria which surrounded the passage of the initial bill should indicate that it probably wasn’t a good idea in the first place. Or, as the American Bar Association put it, “Since then, research and extensive analysis by the Sentencing Commission has revealed that such assertions [about violence and addictiveness], are not supported by sound evidence and, in retrospect, were exaggerated or simply false.” More importantly, since 1995, the U.S. Sentencing Commission has repeatedly recommended eliminating the disparity, but Congress hasn’t responded.
The political bravery being shown by the Obama administration is remarkable. It would be easy for them to either just ignore the disparity – as the Clinton administration did – or recommend that the cocaine penalties be raised to the same level as the crack penalties. Instead, they are recommending that the federal government pursue a less punitive drug crime policies. For decades, politicians, especially Democrats, have been fearful of being portrayed as “soft on crime” and so have either declined to address the increasing punitive nature of our justice system or have actively abetted it.
Despite the Obama administration publicly getting behind eliminating the disparity, it won’t necessarily come into fruition. Nervous legislators will not want to be responsible for crack dealers (or Tyrone Biggums) receiving comparatively lighter sentences, even if just about every legal group agrees that our current policies are absurd. And even though judges now have the option of delivering lighter sentences to those convicted of crack cocaine possession, until the federal laws are changed by Congress, this irrational stain on our justice system will remain.