End Unequal Sentencing in Racially-Biased "War on Drugs"

May 23 - 29, 2007 by Maya Harris, The Post Newspaper

No criminal justice policy has contributed more to the mass incarceration of African Americans than the so-called "War on Drugs." We now have more African-American men in jails and prisons than in college. Something is clearly wrong when the government's most effective affirmative action program is the preference people of color receive when entering not college, but the criminal justice system.

A key driver behind these disparities is the unequal sentencing for crack and powder cocaine. Right now, distributing 500 grams of powder cocaine carries a minimum of 5 years in federal prison, while distributing just 5 grams of crack carries the same sentence. It's a ratio of 100 to 1, meaning that it takes a hundred times more powder cocaine to get the penalty imposed for the possession of crack cocaine.

Last month, the U.S. Sentencing Commission recommended that Congress close the gap in sentencing for crack and powder cocaine offenses. The Commission recommended narrowing it to 20 to 1, which is an improvement, but still not good enough when you look at the facts.

The current disparity in drug sentencing has been allowed to stand because it's based on the faulty assumption that more harm is done by crack cocaine. Yet, medical and chemical experts have found that in composition and user reaction, crack has similar effects as powder cocaine.

Unequal mandatory drug sentencing is also based on the wrong assumption that crack cocaine trafficking is more linked to violent crimes. But, in fact, in 2000, for example, 75 percent of crack offenders had no personal involvement with weapons. And only 2.5 percent of crack offenders used a weapon in committing the crime.

The law has been a failure on other fronts as well. Originally, the law's goal was to go after serious and major drug traffickers. However, Sentencing Commission statistics show that 73 percent of drug defendants are low-level street dealers, lookouts and couriers, not the "big fish" the law was intended to catch.

Not only ineffective, the racially-disparate outcomes of this sentencing scheme are not surprising. Crack is cheaper than powder cocaine, so it's more accessible to low-income Americans many of whom are black. Powder cocaine is more expensive, which means more affluent whites are more likely to be involved in powder cocaine offenses.

Looking at the way the law is applied, whites are disproportionately less likely to be prosecuted for drug offenses to begin with and, when prosecuted, whites are more likely to be acquitted and much less likely than blacks to be imprisoned.

Consider the recent data from the Sentencing Commission itself: African Americans make up 15 percent of America's drug users, yet they are 37 percent of people arrested for drug violations, 59 percent of those convicted and 74 percent of those sentenced to prison.

While 66 percent of crack users are white or Hispanic, blacks comprise more than 80 percent of those sentenced for crack offenses. Moreover, the average federal drug sentence for crack offenses for African Americans is 49 percent higher than for whites.

These disparities in sentencing for drug offenses have had a devastating effect on the African-American community—on men, women, children and families. Unjust, lengthy mandatory sentences separate parents from families.

And the collateral consequences imposed on individuals after a drug conviction are debilitating. Once saddled with a felony conviction, individuals come out of prison to face a series of government-imposed barriers to even basic necessities and fundamental civil rights: access to public housing, public assistance, public education loans—the right to vote.

Despite these unfair outcomes and the disturbing social impact, Congress has allowed the 100 to 1 ratio to stand for decades. It's time for Congress to equalize the penalty for crack to that imposed for powder cocaine, and to abolish the mandatory minimums that have led to these unjust results.

For more information, visit http://www.aclu.org/pdfs/drugpolicy/cracksinsystem_20061025.pdf to read the ACLU's report, "Cracks in the System: Twenty Years of the Unjust Federal Crack Cocaine Law."