Crack And Powder: A Drug War Reform That Preserves Inequality

This seems to be progress. The Senate measure is an initial, timid step in the right direction. But it doesn't end a decade's long, offensive, racially based inequality in federal drug sentencing. It just makes it a fifth as bad as it was.

The United States at this moment imprisons more than 2 million people. 7 million additional people are under supervision of some sort. Seventy percent of US prisoners are non-white. Approximately one-quarter of all those held in US prisons or jails have been convicted of a drug offense. "The United States incarcerates more people for drug offenses than any other country. With an estimated 6.8 million Americans struggling with drug abuse or dependence, the growth of the prison population continues to be driven largely by incarceration for drug offenses." Forget the statistics for a second. US prisons are disproportionately jammed with non-white people who have been convicted of drug crimes, and non-whites serve longer sentences than whites for possession of drugs.

One of the many reasons for these disparities in prison populations is that for more than a decade the law has made sentences for crack far, far more severe than those for powder cocaine. Since 1986 crack sentences have been 100 times those that would be imposed for the same amount of powder cocaine. That was offensive in 1986. And its continuation for the past 24 years has filled prisons with non-whites. One could ask whether this federal legislation was intentionally racist in its impact: the law presumes intent from the "natural and probable consequences of acts". And the natural and probable consequences of this legislation has been to fill prisons with people of color.

On Friday, the Senate Judiciary Committee passed a measure that would reduce but not eliminate the sentencing disparities. The WaPo reports:

A long-standing dispute over huge disparities in sentencing between crack vs. powdered cocaine appears to be headed for a resolution in Congress.

Senate lawmakers reached across the aisle and brokered a landmark deal this week to reduce criminal penalties for defendants caught with crack cocaine...snip

The often-divided Senate Judiciary Committee unanimously passed the measure 19 to 0 the same day, addressing for the first time in two decades a sentencing disparity that has troubled civil rights organizations, prisoners rights advocates and officials in the Obama White House.

The compromise would reduce the sentencing disparity to 18 to 1 for people caught with crack cocaine vs. those who carry the drug in powdered form. The current ratio has rested since 1986 at 100 to 1, disproportionately hurting African Americans, who are convicted of crack possession at far greater numbers.

The Senate bill would increase the amount of crack cocaine required to trigger a five-year mandatory minimum sentence for possession with an intent to distribute from 5 grams to 28 grams. Possessing cocaine in rock form would no longer carry a mandatory minimum prison term, equalizing that penalty to that of other drugs and marking the first time that Congress has overturned a mandatory minimum.

The House has passed a more equitable bill. In July, 2009, the House Judiciary Committee passed a cocaine sentencing bill that would treat all forms of cocaine the same for sentencing purposes, lowering the ratio to 1 to 1. The Senate bill leaves the ratio at 18:1.

Durbin and Senate Judiciary Chairman Patrick J. Leahy (D-Vt.) continue to argue that equalizing the penalties would be the fairest approach, but gaining Republican and law enforcement support proved difficult.

"The most important thing is to change the law," Durbin said in a telephone interview. "There's been a lot of injustice. . . . I gave a little, and they gave a little."

Officials say the crack sentences undermine public confidence in the criminal justice system because they tend to penalize minorities far more than whites.

President Obama and Vice President Biden pledged to reduce the cocaine sentencing inequity on the campaign trail, and Obama called one reluctant GOP senator in the past month to express his commitment to the issue, a Senate aide said.

Attorney General Eric H. Holder Jr. hailed the Senate Judiciary vote as a significant step toward achieving fairness in sentencing.

This is a start. It's an initial step. It does not fix the problem for the future. And it certainly doesn't fix the problem for the hundreds of thousands of imprisoned crack defendants. The bill is just "one fifth as racist as it used to be." The bill does not address whether re-sentencing should be granted to those presently serving long, crack sentences. And it doesn't address the irrationality of demonizing crack as opposed to injectable cocaine.

How many decades more will it take finally to eliminate this discrimination?