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New Report on Crack-Powder Disparity

By Jeralyn, Section Crime Policy
Posted on Tue May 16, 2006 at 08:37:30 AM EST
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The American Constitution Society today released a new white paper (pdf) on crack-powder sentencing disparity, examining whether the International Race Convention might provide some relief.

The federal criminal penalty structure for the possession and distribution of crack cocaine is one hundred times more severe than the penalty structure relating to powder cocaine. Blacks comprise the vast majority of those convicted of crack cocaine offenses while the majority of those convicted of powder cocaine offenses are white. This disparity has led to inordinately harsh sentences disproportionately meted out to African American defendants that are far more severe than sentences for comparable activity by white defendants. Indeed, the U.S. Sentencing Commission reported that revising this one sentencing rule would do more to reduce the sentencing gap between blacks and whites "than any other single policy change," and would "dramatically improve the fairness of the federal sentencing system."

Notwithstanding widespread recognition of the inequity of the current sentencing scheme, courts have found that domestic law affords no remedy. In this white paper, Nkechi Taifa examines that failure of U.S. law to address this disparity and explores ways that principles from the International Convention on the Elimination of All Forms of Racial Discrimination could form a basis for relief.

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    • New Report on Crack-Powder Disparity | 20 comments (20 topical)
    Re: New Report on Crack-Powder Disparity (none / 0) (#1)
    by Talkleft Visitor on Tue May 16, 2006 at 09:40:29 AM EST
    Via the Freakonomics blog,another report also calls for a reduction in the disparity. It does, however, note the original reasoning behind the rock-powder disparity and more or less debunks the "racist" argument. Further debunking the "racist guidelines" theory is another article (also via Freakonomics blog) that discusses in depth the effects of crack. (here) Both worth reading - and both agree that the necessity of the disparity is passed its time.

    Re: New Report on Crack-Powder Disparity (none / 0) (#2)
    by Dadler on Tue May 16, 2006 at 09:47:55 AM EST
    croc_chada, the disparity has existed because of racism in my opinion and many others, your link did not shoot it down. black folk on crack frightened the public to a hysterical extent, infinitely more than honkies snorting lines. crack was perceived as the new black plague. period. i remember it quite well, like i remember willie horton. and if drug prohibitionists were using anything approaching consistent logic, alcohol would be the first substance they were looking to ban, and the penalties for it would be the most severe. and i'll bet there are just as many people using crack today as there were 20 years ago. the only difference is we've got new narcotic "crises" to propagandize.

    Re: New Report on Crack-Powder Disparity (none / 0) (#3)
    by Talkleft Visitor on Tue May 16, 2006 at 09:53:05 AM EST
    No offense, Dadler, but there's no way you read those reports that quickly. It's your call if you read them or not, but don't pretend as though you have. Just a tip: your point about the number of crack users being just as high today is discussed at length in the reports.

    Re: New Report on Crack-Powder Disparity (none / 0) (#4)
    by Peaches on Tue May 16, 2006 at 10:18:52 AM EST
    Croca, Your interpretation of the first article debunking the racist argument is disingenuous. The article sheds light on how the 100:1 ratio was borne in 1986 by highlighting the context in which the law was written. It describes the violence prevalent on our inner-city streets at the time. However, the author never debunks the racist argument, but rather reconsiders the law to be an embarassment to the criminal justice system and thinks it is time it is changed. btw. Crack is bad. We know that. But the author of the article also debunks the perception of crack as causing Crack babies, stating we know now know that alcohol causes far greater damage to the fetuses of preganant mothers.
    Thus, with appropriate use of enhancements for those aspects of drug markets that are of particular concern, I see no clear reason why there should be any difference in sentencing guidelines between crack and powder. The United States Sentencing Commission has proposed raising the crack level from 5 grams to "at least" 25 grams, thus reducing the disparity from 100:1 down to 20:1. Thus, while it is clearly a move in the right direction, this shift is less than a major concession to reasonableness. Perhaps the sanctions for crack and powder might be equalized at some future time, using enhancements for whatever operational differences might remain. That would be an important step in diminishing the widespread concern of racial discrimination in the criminal justice system. I would also hope that the Congress would capitalize on the growing national enlightenment on drug policy to at least sunset its drug-related mandatory-minimum sentencing laws if it is unwilling to repeal them outright. I am confident that such an action would lead to widespread appreciation by all those concerned with developing more rational sentencing policy.
    Re: New Report on Crack-Powder Disparity (none / 0) (#5)
    by Talkleft Visitor on Tue May 16, 2006 at 10:30:24 AM EST
    Yes - the crack baby myth was a media construct. And I intrepret it as an argument against continuing the disparity - as the conclusion says, recent reductions are in the right direction but have further to go. In rebutting the racism argument, it points to the violence associated with crack as the original basis for the disparity. Maybe I'm taking the logical step that in not discussing the "inherent racism of Congress and our laws" as a cause, they necessarily reject that argument.

    Re: New Report on Crack-Powder Disparity (none / 0) (#6)
    by Peaches on Tue May 16, 2006 at 10:40:26 AM EST
    Maybe I'm taking the logical step that in not discussing the "inherent racism of Congress and our laws" as a cause, they necessarily reject that argument.
    Or, you are taking the illogical step of inferring that if something is not the cause, then it cannot exist. it is the authors clear opinion in the article that the 100:1 guideline for sentencing is evidence for "inherent racism of congress and our laws." He gives an explanation for how these laws were formed that offers us some light on what the lawmakers were trying to accomplish at the time. Perhaps, they had motives other than racism, i.e. reduction of violence in the inner-city. However, He states that there is no basis for the 100:1 to be continued and calls it an embarassment for the criminal justice system. It was never the intention of the authors to debunk the racism argument. To arrive at that conclusion seems very odd to me.

    Re: New Report on Crack-Powder Disparity (none / 0) (#7)
    by kdog on Tue May 16, 2006 at 10:43:26 AM EST
    The reductions have little to nothing to do with sentencing/enforcement policies in my opinion...I think it's more street level education. The drug users/experimenters of today remember the crack zombies strung out on the streets in the 80's, homeless, losing their teeth...and made a mental note not to do crack. Hence the reduction in crack use. They are experimenting with vicodin, oxycotin, powder form coke, etc....not the rock. At least that's the reason I never tried it. Not because of the draconian sentences for possesion...but because I saw what it did to people in my neighborhood.

    Re: New Report on Crack-Powder Disparity (none / 0) (#8)
    by Talkleft Visitor on Tue May 16, 2006 at 10:56:47 AM EST
    He gives an explanation for how these laws were formed that offers us some light on what the lawmakers were trying to accomplish at the time..
    Yes - the lawmakers were trying to create a strong disincentive to reduce the high level of violent crime associated with crack (but not with powder) cocaine. Now that the violent crime rates have dropped (for a number of reasons), the punishment can and should be brought more in line with its pharmacological brother, powder-form cocaine. I draw the conclusion that racism played no role because I honestly don't think the Congressmen and Congresswomen that drew up the sentencing guidelines were racist in their actions. If it punished blacks more often, it's because that's who was dealing crack and committing the associated violent crimes.

    Re: New Report on Crack-Powder Disparity (none / 0) (#9)
    by Talkleft Visitor on Tue May 16, 2006 at 10:58:57 AM EST
    What I could never figure out is , if crack is not dramatically more addicting (thus, socially troublesome) than powder, why presumably intelligent blacks wouldn't see the dramatic differences in sentences and simply use and deal powder cocaine. We've known about sentencing differences for 20 years--there must be something uniquely alluring and dangerous about crack compared to powder to make people chance such a dramatic disparity in sentencing if caught.

    Re: New Report on Crack-Powder Disparity (none / 0) (#10)
    by Talkleft Visitor on Tue May 16, 2006 at 11:03:34 AM EST
    The cost of rock cocaine, Rogan. It was more accessible to the poor of the inner-city. I think the nature of crack (short lived effects with a much higher "peak") also contributes to the difference. I want to be clear kdog and Peaches, that I also agree the disparity should be reduced. Again, I understand (or think I do) the original intent of the difference but I agree that it has outlasted it's effectiveness and is now unnecessary.

    Re: New Report on Crack-Powder Disparity (none / 0) (#11)
    by kdog on Tue May 16, 2006 at 11:44:28 AM EST
    That's the difference choc...I don't think it was ever effective.

    Re: New Report on Crack-Powder Disparity (none / 0) (#12)
    by kdog on Tue May 16, 2006 at 11:48:52 AM EST
    To clarify....draconian sentences or law enforcement efforts have little to no effect on drug use.

    Re: New Report on Crack-Powder Disparity (none / 0) (#13)
    by Peaches on Tue May 16, 2006 at 11:55:04 AM EST
    I draw the conclusion that racism played no role because I honestly don't think the Congressmen and Congresswomen that drew up the sentencing guidelines were racist in their actions.
    The point is that we are speculating on individual motives. I think it is eay and probably true that congressmembers were responding to the demands of their constituents at the time as they always do. Ther was an outcry about violence from many at the time. There was also an immediate outcry from Blacks that the 100:1 proposal was draconian, unfair and inherently racist, if my memory serves me correctly. The fact that this outcry on Blacks had little impact on the passing of the proposal speaks to the inherent racism at the core of our society, despite the individual beliefs of the congress.

    Re: New Report on Crack-Powder Disparity (none / 0) (#14)
    by Dadler on Tue May 16, 2006 at 02:33:52 PM EST
    croc, I read the first link, bro. It also said the rate of NEW USERS has gone down. Which means there ARE stil new users coming into the addiction market, so to speak, just not like when it was the new thing on the street. Hell, Kate Moss's old boyfriend, a british rock bad boy, smokes crack all over the place and doesn't hide it. Use is still around, more broad than it used to be, we've just got meth now as the new hysteria to overhype. The public perception was that crack created black monsters and criminals roaming the night looking for an angry fix, and that was what fueled the disparity. Again, I remember it well. Bush the First holding up his baggie of rock, bought practically on the front porch of the White House, he said. We got a new drug to funnel our hysteria energy into, and that's meth. But funny how meth, largely perceived as a white and/or white-trash drug, still won't get you in as much trouble as crack. And after meth, who knows what'll come next. Surely somemthing.

    Re: New Report on Crack-Powder Disparity (none / 0) (#15)
    by Sailor on Tue May 16, 2006 at 02:45:40 PM EST
    Yes - the lawmakers were trying to create a strong disincentive to reduce the high level of violent crime associated with crack (but not with powder) cocaine.
    Please provide stats with links. Bootleggers were violent too, did it depend on whether they sold beer or hard liquor?

    Re: New Report on Crack-Powder Disparity (none / 0) (#16)
    by Sailor on Tue May 16, 2006 at 02:53:45 PM EST
    Apparently now the uptick is in 'scrip meds. No doubt that was caused by rush, just like an uptick in bj's was attibuted to the clenis.[/snark]

    Re: New Report on Crack-Powder Disparity (none / 0) (#17)
    by Talkleft Visitor on Tue May 16, 2006 at 03:43:30 PM EST
    Please provide stats with links.
    The reports I mention above address this claim. Before you romp off to dig through the appendices, let's play the "common sense game": which iteration of cocaine has a greater incidence of violence associated with it's distribution? Crack. You don't need to cross-tabulate FBI drug-related crime statistics to know this (although they will confirm it). And Dadler: the report does report that although the number of users has declined, the amount of crack consumed has remained roughly constant. They suggest this is a result of 2 simultaneous trends: an increase in consumption per existing user and a reduction of new, younger users. This makes sense to me. Drugs, to society as a whole, are negligible. The power of the individual, tragic stories of drugs are what keep the vast majority in the "prohibitionist" camp. Too many people have a cousin, or know a former classmate that has either died of an overdose, become a degenerate addict or lost their life due to drug-related violence for them to be comfortable supporting legalization. And even though legalizing drugs might be the magic salve to reducing drug-related death and crime, it's this personal negative experience that makes most people skeptical.

    Re: New Report on Crack-Powder Disparity (none / 0) (#18)
    by squeaky on Tue May 16, 2006 at 05:30:27 PM EST
    Peewee Herman chimes in. link via robot wisdom

    Re: New Report on Crack-Powder Disparity (none / 0) (#19)
    by Talkleft Visitor on Tue May 16, 2006 at 06:28:45 PM EST
    I think there's a consensus to reduce the disparity, regardless of the original motives for creating it. Streetwalkers create more public concern than call girls because the former are more visible and disruptive to neighborhoods. Consequently, police devote more resources to cracking down on streetwalkers than call girls. Likewise, street crack dealers were of greater concern than powder dealers who operated out of public view. It's also clear the sentencing disparity put black drug dealers away for far longer than white drug dealers.

    Re: New Report on Crack-Powder Disparity (none / 0) (#20)
    by tps12 on Wed May 17, 2006 at 05:25:36 AM EST
    If it punished blacks more often, it's because that's who was dealing crack and committing the associated violent crimes.
    Likewise if, during the lynching era, community concern over the rape of young women may have disproportionally punished black men, perhaps that's just who was doing all the rape.

    New Report on Crack-Powder Disparity | 20 comments (20 topical)