…by Meg White
The place Meg puts the stuff she wrote
The Senate’s Failure in Drug Sentencing Fairness is 18-to-1
Categories: Commentary, Justice

by Meg White

The Senate passed a bill yesterday that would mean a person found with a small amount of crack and a person carrying 18 times as much cocaine would be sentenced to the exact same amount of jail time.

The strangest thing is that lawmakers called it the “Fair Sentencing Act.” The reasoning behind this misnomer is that currently the sentencing disparity is a whopping 100-to-1. So it’s an improvement, but excuse me if I don’t leap for joy at the sudden dispensation of “justice.”

(To be, ahem, “fair”: When this legislation was originally introduced, it proposed a fair 1-to-1 ratio. Later the bill was “watered down” for “purely political reasons” according to the advocacy group Color of Change.)

Back when this disparity was first created, lawmakers and the public were treated to misunderstandings, along with a fair amount of lies, about crack and cocaine. It was thought that crack was a stronger and more addictive drug, which it is not. Also, the media hyped faulty science about crack babies and other fear-based reporting. Though the contentions have since been proven incorrect, to this day crack is the only drug with a mandatory minimum for mere possession, regardless of amount.

The advocacy group The Sentencing Project notes about that time period:

The 1986 and 1988 Anti-Drug Abuse Acts established excessive mandatory penalties for crack cocaine that were the harshest ever adopted for low-level drug offenses and created drastically different penalty structures for crack cocaine compared to powder cocaine, which are pharmacologically identical substances. The law has diverted precious resources away from prevention and treatment for drug users and devastated communities ripped apart by incarceration.

But some of those supposed misunderstandings were deliberate. As a guest on Democracy Now last week, legal scholar Michelle Alexander, author of the book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, put the disparate sentencing regime into a racial and political context:

The drug war was launched in response to racial politics, not drug crime. The drug war was part of the Republican Party’s grand strategy, often referred to as the Southern strategy, an effort to appear—appeal to poor and working-class white voters who were threatened by, felt vulnerable, threatened by the gains of the civil rights movement, particularly desegregation, busing and affirmative action. And the Republican Party found that it could get Democrats — white, you know, working-class poor Democrats — to defect from the Democratic New Deal coalition and join the Republican Party through racially coded political appeals on issues of crime and welfare.

The disparity has since been called a “national disgrace,” a characterization which resonates with the correlation of incarceration rates with race and poverty. Vice President Joe Biden, who sponsored the 1980s legislation, pled ignorance, insisting that while the Congress’ intentions were good, “much of our information was bad.”

Still, activists today are quick to say they’re happy with any change at all to the draconian sentencing guidelines. On National Public Radio, Cynthia Orr, president of the National Association of Criminal Defense lawyers, explained the guarded optimism about the Senate bill:

Orr, of the criminal defense lawyers association, says she would prefer if crack were not treated 18 times more seriously than powder.

“There’s a great frustration,” she said. “But it’s 80 percent less great a frustration than it has been in the past.”

The Senate bill is “such an important move,” she says. “I’m not going to diminish it in any way.”

Surely such criticism can wait until the bill is passed by the House and signed into law, right? Yet there is a bill in the House which would eliminate any disparity in sentencing between crack and powder cocaine. Also, the Obama Administration’s Justice Department (along with the president himself) has said the disparity should be eliminated and that it is an injustice that is “hard to justify.”

While the Senate bill passed on a voice vote and had bipartisan support, the issue of fairness between crack users and cocaine users was dismissed by the previous administration. As recently as 2008, former Attorney General Michael Mukasey told Congress the proposed fairness “would produce tragic, but predictable results” and release from prison hundreds of “violent gang members.”

Thing is, crying out that the disparity keeps drug dealers in prison where they belong is a specious argument. After all, law enforcement officials use amounts found on a suspect as a main way to determine who is and who is not a dealer. If we’re talking about the same drug here (which we are) then a dealer should be a dealer regardless of the form one finds the drug in. To put it in simpler terms, that would be like calling someone who sells marijuana dessicated and rolled up in joints a “dealer” but someone who sells it in a bag a mere user, even if both have the same amount of the drug.

Of course, sentencing by amount doesn’t always work; if a dealer has only a small amount on them, they may not serve the jail time they “deserve.” But with provisions of relative fairness, at least users won’t serve a dealer’s life in prison for an addiction to a drug that happens to be cheaper to buy than another version of the same substance.

While the House bill eliminating the disparity is by far preferable, I’m not holding my breath for true equity. What’s often left unmentioned is the political cost of taking on such an issue. And perhaps Congress could learn a lesson in intestinal fortitude from a senator who took a chance on fairness.

Sen. Jim Webb (D-VA) introduced the National Criminal Justice Commission Act of 2009 last year, which would establish a temporary commission to study our broken prison system.

While the commission would study a variety of incarceration-related issues, Webb was particularly courageous in raising difficult questions over the nation’s controversial drug policies (among them sentencing and mandatory minimums). Proposing a commission to study an issue may sound rather milquetoast, but Webb’s proposal rightfully earned him our praise:

…taking on the prison industry is especially tough thanks to its strong lobbying arm, which is sure to give Webb trouble come re-election time. Considering Webb’s status as a first-term Democratic senator from a traditionally red state, his legislation is brave indeed.

The issue also involves uncomfortable conversations about contentious topics such as addiction and racial inequality, adding to our admiration for Webb’s willingness to take the issue on.

But there is a large group of people who could — or perhaps should — come out in favor of reform. As our own Christine Bowman wrote about the bill (back when bipartisanship wasn’t a code word for stagnation):

Decades of the “war on drugs” has pushed addicts and casual users into prisons while cartels and street gangs have grown. Drug policy reform advocates are heartened, as are fiscal conservatives and rights advocates. Which is to say, it’s a big tent coalition seeking big reforms.

Still, in the year since the bill was introduced, the legislation has sat motionless in the Judiciary Committee. But the Senate, in light of its failure to achieve fairness, should pass Webb’s bill and create his commission.

The best way to get true reform in a debate fraught with controversy and campaign maneuvering on the part of the prison industry is to create such a commission. The failure to end the disparity between crack and powder  cocaine illustrates that need perfectly.


Originally published at BuzzFlash.com.

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