Last month the Supreme Court ruled that a federal judge was free to set aside sentencing guidelines that imposed much stiffer penalties for crack-cocaine offenses than for crimes involving powder cocaine. The next day, the U.S. Sentencing Commission, which is responsible for establishing those guidelines, unanimously decided to allow some crack-cocaine sentences to be reduced retroactively—a move that could eventually give 19,500 inmates a chance at early release.
These were both important and long-overdue decisions that will diminish the damage caused by an anomaly in our criminal-justice system; but the anomaly itself remains. A federal law passed by Congress in 1986 still requires a mandatory minimum sentence of five years for the possession of five grams of crack. By contrast, the law mandates an equal sentence for those convicted of possessing five hundred grams of powder cocaine, which is chemically identical to crack. This is known as the 100-to-1 rule, and it implies that crack is a hundred times more dangerous than powder cocaine, either to its users or to society at large. There was no real evidence for such a claim when the law was passed twenty years ago; after much study by criminologists and sociologists, there is still no evidence for it today.
The most important difference between crack and powder cocaine is that crack, which is cheaper, is more popular in poor urban neighborhoods, and especially among black users. Eighty-five percent of those in prison for crack offenses are black. This means that the congressional law that targets crack in particular has had the effect of keeping black cocaine offenders locked up longer than white offenders. Naturally, black Americans have noticed this disparity. The law is a scandal to anyone who understands it, but especially to those whose families and neighborhoods it has hurt. Many in the black community see the 100-to-1 rule as part of a criminal-justice system that is still rigged against them more than forty years after the end of Jim Crow. As the sociologist Bruce Western shows in Punishment and Inequality in America (2006), there is more than anecdotal evidence to support this suspicion: in 2000, 11.5 percent of young black men were incarcerated, compared to 1.6 percent of young white men; 9.3 percent of black children, compared to 1.2 percent of white children, had fathers who were behind bars. Overall, black Americans are eight times more likely than whites to go to prison.
Such numbers suggest that our criminal-justice system, which imprisons more people than any other in the world, is hardest on the most underprivileged communities. As Jason DeParle writes in the April 12, 2007, issue of the New York Review of Books, “Imprisonment does more than reflect the divides of race and class. It deepens those divides—walling off the disadvantaged, especially unskilled black men, from the promise of American life.... Their long sentences deprive women of potential husbands, children of fathers, and convicts of a later chance at a decent job.”
This is a problem not only for the black community but also for the credibility of our whole criminal-justice system. Our jails and prisons are being made to bury social problems we as a nation would rather ignore, partly because they are complicated, and partly because we have been afraid that solving them might be too expensive. But then, our bloated and often inhumane criminal-justice system is itself too expensive: we now spend $200 billion a year on law enforcement, jails, and prisons—four times as much as we spent just twenty-five years ago. Meanwhile, many drug-treatment and job-training programs for prisoners have been reduced or eliminated, which means that more felons than ever are leaving prison still addicted to drugs and unprepared for life on the outside.
Harmonizing prison sentences for crack-cocaine possession with sentences for other drugs won’t solve the whole problem, of course, but it will at least begin to bring down the huge number of nonviolent criminals in our prisons—and, just as important, it will help convince skeptics that our legal system is not designed to discriminate against racial minorities. Since 1995, the U.S. Sentencing Commission has recommended that Congress get rid of the 100-to-1 rule, along with the mandatory minimum sentence for first-time offenders. At last, Senator Joseph Biden (D-Del.) is sponsoring a bill that would do just that. Congress should pass this bill, or one like it. Until it does, the war on drugs will go on being a war against our country’s black underclass.