Yesterday the U.S. Sentencing Commission released its 2007 cocaine report 2007 (PDF). The report – the fourth of its kind in recent years – aims to address the disparity between sentences for crimes involving powder cocaine and those involving crack. The 100-to-1 difference has resulted in harsh sentences for low-level crack users — and has decimated low income communities and communities of color. Wealthier, whiter communities, where cocaine is more popular, have gone mostly untouched.
In its report yesterday, the sentencing commission stopped far short of actually addressing this sentencing disparity. It made only three recommendations (and buried them in 200 pages of analysis). The ACLU summed up the report’s proposals:
· Increase the amount of crack cocaine required to trigger the five-year mandatory minimum sentence, as current law subjects low-level drug offenders to the same or harsher sentences as major dealers.
· Repeal the mandatory minimum penalty for simple crack cocaine possession.
· Reject proposals to lower the amount of powder cocaine required to trigger the five- and ten-year mandatory minimums, as the Commission finds “no evidence to justify such an increase.”
Ok. I’m with them on the first two. Increasing the level of crack required to trigger a harsh five year minimum sentence is an important step to reducing the impact of the misguided “War on Drugs” on low level dealers and – worse — people who possess for their own use. Repealing the mandatory minimum for possession is clearly ancillary to that. But it’s that third recommendation that really stings, and that reduces the positive impact of the other two. In the third bullet point, the commission rejects the idea of getting rid of the 100-to-1 disparity by saying that there’s no need to bring the level of powder cocaine needed to trigger a mandatory minimum sentence down to be more in line with that of crack cocaine.
Now, in a vacuum I agree with that third recommendation. I don’t think we should be punishing cocaine use more harshly. We should be punishing crack and cocaine use less harshly. But U.S. drug policy does not exist in a vacuum. By refusing to address the disparity here, the commission condones its continuation.
In fairness, not nearly all of the blame can be placed at the feet of the sentencing commission. This is the fourth time in twenty years that the commission has urged Congress to act to change drug sentencing laws. But Congress has remained inactive. Unsurprisingly. There’s some hope though: Recently, a bipartisan coalition has been pushing the Drug Sentencing Reform Act, which would reduce – but not equalize — the disparity. And there is a general push toward more humane prison policy from some conservative senators.
But by ignoring the crack-cocaine sentencing disparity — or at the very least, refusing to recognize its impact in its recommendations — the sentencing commission has enabled Congress’s inaction and allowed a racist policy to continue.
I think we should punish crack and coke possession not at all. Prohibition has failed in its stated objectives. But it has put a whole lot of brown people in prison. You’d think that if the elephantine sorts in Congress were at all serious about reducing the size and cost of government, if they were actually going to take a look at programs that don’t work, this would be near the top of the list. If not first place, then maybe a close second after national missile defense.
The thing is, as long as people view drugs — as opposed to The Drug War — as the problem, arguments about disparities won’t reach them. They’ll just say that it’s precisely because of the greater harms the drugs cause to poor, inner-city communities that harsher penalties are needed to deter — and from a harm standpoint, I don’t think we can argue that drug addiction causes a lot more harm to people who don’t have the financial, social, and familial support systems that, eg., stockbrokers snorting cocaine do. We need to convince the public that the harms from the drug war outweigh the harms from the drugs, but until that happens, politicians wanting to get ‘tough on crime’ will *always* level up, never down, in sentencing severity– which is why I think Recommendation 3 is important. Without it, lawmakers would just make the powder penalties harsher and not do anything else — and I can’t go along with the sort of “heightening the contradictions” view required to endorse that.
They’ll just say that it’s precisely because of the greater harms the drugs cause to poor, inner-city communities that harsher penalties are needed to deter — and from a harm standpoint, I don’t think we can argue that drug addiction causes a lot more harm to people who don’t have the financial, social, and familial support systems that, eg., stockbrokers snorting cocaine do. – X. Trapnel
Indeed … that is the argument for greater punishment for crack. In as much as the argument is true, while it is stupid to have any punishment disparities for users or low level dealers, it would certainly be appropriate to have punishment disparities for higher level dealers — as they do more harm by selling crack (*). Except, AFAIK, they don’t sell crack — the thing about crack is that it is easy to make, ain’t it? And how do we try a high level dealing for intent to sell cocaine to be made into crack?
* perhaps the loopy behavior of “the market” isn’t due to bad assumptions by neo-classical economics as we lefties have previously thought but instead is a consequence of cocaine use by people in the financial sector? if so, then perhaps we should punish non-crack users more as they cause more harm to society as a whole: e.g. by causing speculation bubbles and sending our fighting men and women into harm’s way in the ME?
I would be okay with this part AS LONG AS it means that they’ll increase the amount of crack cocaine required to trigger the mandatory minimum to a similar amount instead. Otherwise, no deal.
If peoples’ lives weren’t being destroyed, this would be a hilarious argument. “We should keep being unfair to person A because we’re even worse to person B.” Right.
Now if you’ll excuse me, I’m going to go and beat up my girl friend. Now, obviously, this is wrong, but it wouldn’t be decent of me to stop it while other people rape their partners, would it?
Your objections to recommendation three strike me as approximately as appropriate as telling the KKK “It’s ok if you burn crosses and lynch people, so long as you terrorize and kill some white people along with all the black ones.” Which is to say, I think they’re deeply, deeply misguided.
Maybe you’re thinking strategically that opposition to the drug war is never going to take off until the laws start seriously harming white, wealthy people as well as poor black ones. But changing the sentencing laws isn’t going to get rid of all of the other factors that insulate wealthy whites from the criminal justice system, including allocation of police resources, more favorable treatment from arresting officers, access to expensive legal counsel, favorable treatment from juries, and so forth. The people most harmed by the increased penalties for cocaine possession are likely to continue to be those most disadvantaged in other respects.
The major problem with the drug war isn’t that it’s racially discriminatory, the major problem is that it places people in overcrowded and unsafe prisons for engaging in behavior that harms no one but themselves, is more of a disease than a crime, and carries with it many fewer harms than the government claims. Tossing even more people in prison for drug possession unambiguously increases the injustice of the drug war, not decreases it.
Very recently, the Dallas law enforcement establishment (police, assistant district attorneys, etc.) arrested, convicted, imprisoned, and/or deported a whole bunch of people who by some astonishing coincidence happened to have brown skin. What evidence was provided to establish these people’s perfidy? Powdered gypsum — the stuff you get if you bash up a bunch of drywall. There was a teensy bit of cocaine in it, but the bulk of it was gypsum.
More famously, forty of the forty-six people arrested in the Tulia drug sting were black. In the end, nearly half the black male population of Tulia spent time in prison. Those who weren’t bullied into accepting long prison sentences in plea bargains were convicted by all-white juries based only on the testimony of Tom Coleman, a now thoroughly discredited white police officer. No actual drugs were ever producted. Mr. Coleman never recorded any of the alleged sales, but claimed to have taken notes written on his arms and legs.
Racial discrimination in the enforcement of drug laws is a major problem. Republicans use anti-drug and strong-on-crime talk as code to let their racist constituents know that they’re on their side, really. This is how the Southern Strategy works.
Absolutely throw some privileged, wealthy white dudes in prison for long-ass sentences. This bullshit has been carried on the backs of brown people for too damn long.
I think you misread me (or I wasn’t clear) — I don’t think that the powder cocaine laws should be made as tough as crack laws. I think that they should BOTH be decreased. I don’t think possession of small amounts should be criminal at all. I think my opposition to that is clear in the post.
Giving harsh sentences to drug users is like thinking a tissue under your nose will stop a cold. We need to examine not WHO is using drugs or WHERE they’re coming from, but WHAT in our culture so encourages drug use in the first place.
If the problem is: low-income people doing crack because they’re so effin’ depressed about being poor. Then the solution lies in: how do we get them to stop being poor? NOT simply: How do we get them to stop doing crack? (Well, we should get them off crack, but that won’t solve their bigger problems)
[...] ent on this article at Steven Barnes’ blog. Then, bean, guest blogging at Feministe, discusses the war on drugs and cocaine report 2007, a rece [...]