The Myth of Racist Crack Laws

James Slate
Sep 23, 2018 · 9 min read

Unfair drug policies are an equally popular explanation for black incarceration rates. Legions of pundits, activists and academics charge that the war on drugs is a war on minorities. They point to federal crack penalties, the source of the greatest amount of misinformation in the race and incarceration debate. Under a 1986 law, five grams of crack triggers a mandatory minimum five-year sentence in federal court; powder-cocaine traffickers get the same five-year minimum for 500 grams.The media love to target the federal crack penalties because crack defendants are likely to be black. In 2006, 81% of federal crack defendants were black while only 27% of federal powder-cocaine defendants were.

Playing a starring role in this conceit are federal crack penalties, the source of the greatest amount of misinformation in the race and incarceration debate. Crack is a smokeable and highly addictive cocaine concentrate, created by cooking powder cocaine until it hardens into pellets called “rocks.” Crack produces a faster — and more potent — high than powder cocaine, and it’s easier to use, since smoking avoids the unpleasantness of needles and is more efficient than snorting. Under the 1986 federal Anti-Drug Abuse Act, getting caught with five grams of crack carries a mandatory minimum five-year sentence in federal court; to trigger the same five-year minimum, powder-cocaine traffickers would have to get caught with 500 grams. On average, federal crack sentences are three to six times longer than powder sentences for equivalent amounts.

Since federal crack rules are more severe than those for powder, and crack offenders are disproportionately black, those rules must explain why so many blacks are in prison, the conventional wisdom holds.But consider that in 2006, only 5,619 crack sellers were tried federally, 4,495 of them black. It’s going to take a lot more than 5,000 or so crack defendants a year to account for the 562,000 black prisoners in state and federal facilities at the end of 2006 — or the 858,000 black prisoners in custody overall, if one includes the population of county and city jails.

Moreover, the press almost never mentions the federal methamphetamine-trafficking penalties, which are identical to those for crack. In 2006, the 5,391 sentenced federal meth defendants were 54% white, 39% Hispanic and 2% black. No one calls the federal meth laws anti-Hispanic or anti-white.The press has also served up a massive dose of crack revisionism aimed at proving the racist origins of the war on crack. Crack was never a big deal, the revisionist story line goes. The belief that crack was an inner-city scourge was a racist illusion.

The assertion that concern about crack was motivated by racism ignores a key fact: Black leaders were the first to sound the alarm about the drug, as Harvard law professor Randall Kennedy documents in “Race, Crime, and the Law.” These politicians were reacting to a devastating outbreak of inner-city violence and addiction unleashed by the new form of cocaine.

The drug war was not a war on blacks. It was the Congressional Black Caucus that demanded a federal response to the 1980s crack epidemic, including more severe penalties for crack trafficking. The Rockefeller drug laws in New York State were also an outgrowth of black political pressure to eradicate open-air drug markets. This local demand for suppression of the drug trade continues today. Go to any police-community meeting in Harlem, South-Central Los Angeles, or Anacostia in Washington, D.C., and you will hear some variant of the following plea: “We want the dealers off the streets, you arrest them and they are back the next day.” Such voices are rarely heard in the media.

The crack market differed radically from the discreet phone transactions and private deliveries that characterized powder-cocaine distribution: Volatile young dealers sold crack on street corners, using guns to establish their turf. The national spike in violence in the mid-1980s was largely due to the crack trade, and its victims were overwhelmingly black inner-city residents.

It takes shameless sleight of hand to turn an effort to protect blacks from harm into a conspiracy against them. If Congress had ignored black legislators’ calls to increase cocaine-trafficking penalties, the outcry among the groups now crying racism would have been deafening.

To be sure, a legislative bidding war drove federal crack penalties ultimately to an arbitrary and excessive point; the current movement to reduce those penalties is appropriate. But it was not racism that led to the crack sentencing scheme.Critics follow up their charges about crack with several false claims about drugs and imprisonment.

The first is that drug enforcement has been the most important cause of the overall rising incarceration rate since the 1980s. Not true.

Violent crime has always been the leading driver of prison growth, especially since the 1990s. In state prisons, where 88% of the nation’s inmates are housed, violent and property offenders make up over 3 1/2 times the number of state drug offenders.Next, critics blame drug enforcement for rising racial disparities in prison. Again, the facts say otherwise. In 2006, blacks were 37.5% of the 1,274,600 state prisoners. If you remove drug prisoners from that population, the percentage of black prisoners drops to 37%.

Mandatory minimum federal sentences are also often cited as an indication of the drug war’s racism, since they penalize possession of crack cocaine much more severely than possession of powder cocaine, and the former has been more common in black communities. But you could typically avoid the mandatory minimum if you met three conditions: Don’t hurt anyone, don’t have a gun, and don’t lie to the police. In 2006, only 15.4 percent of crack defendants met these conditions, as opposed to nearly half of powder-cocaine defendants. Congress appears to have been justified in viewing crack as the greater problem. The sentencing disparity was in any case dramatically reduced by the Fair Sentencing Act, signed into law by President Obama in 2010.

Less than 4 percent of prisoners were convicted merely of drug possession, and many of those cases represent plea bargains from more serious offenses; out of 70,000 federal convictions in 2015, there were a total of 198 convictions for simple drug possession — of which just six were for simple possession of crack cocaine. Moreover, it is hardly the case that “but for the grace of God,” as Obama put it, he could have been incarcerated in Oklahoma’s El Reno for getting stoned as a student. There were 198 federal convictions for simple possession in 2015 (six for simple possession of crack cocaine) out of 70,000 total federal convictions.

Clinton’s argument is that the current crack cocaine laws is based on “outdated research,” but in reality it’s her plan that is fact-challenged, based not on research but progressive rhetoric.The left has been advocating for reductions in the crack cocaine disparity because blacks tend to be the demographic that uses crack at a higher percentage, resulting in a higher number of blacks facing tougher sentencing. The left’s conclusion: crack cocaine laws are racist. Evidence suggests, however, that this is not the case.

Crack cocaine faces tougher penalties than powder cocaine because crack can be smoked, which is much easier than injecting or snorting powder cocaine. Crack also “produces a faster — and more potent — high than powder cocaine.” So it follows that crack faces tougher sentencing laws than powder cocaine. How much so is debatable, but it certainly should not be 1:1 as Clinton suggests.

It’s also hard to argue that crack cocaine disparities are racist when they were advocated by… liberal black leaders. Law professor and criminologist Stephanos Bibas writes in National Review:

In New York, black activists in Harlem, the NAACP Citizens’ Mobilization Against Crime, and New York’s leading black newspaper, the Amsterdam News, advocated what in the 1970s became the Rockefeller drug laws, with their stiff mandatory minimum sentences. At the federal level, liberal black Democrats representing black New York City neighborhoods supported tough crack-cocaine penalties. Representative Charles Rangel, from Harlem, chaired the House Select Committee on Narcotics Abuse and Control when Congress enacted crack-cocaine sentences that were much higher than those for powder cocaine. Though many have come to regret it, the War on Drugs was bipartisan and cross-racial.

There’s also the fact that, according to the U.S. Sentencing Commission, the most frequently reported drug is powder cocaine, as it accounts for 34.5% of federal drug sentencing cases. Crack cocaine makes up 19.4% of federal drug sentencing cases.There was a massive spike in national violent crime in the mid-1980s because crack was becoming widely available in the inner cities, in large part because it was being sold in “small, easily digestible amounts” and crack dealers would defend their territory with guns.

Crack, homicides, and assaults went hand in hand; certain areas of New York became ‘like a war zone,’ retired DEA special agent Robert Stutman told PBS’s Frontline in 2000. The majority of the victims from violent crime stemming from crack were also black. Los Angeles prosecutor Robert Grace called the crack epidemic “one of the worst things that happened to the black and brown community.” Eventually, tougher sentencing laws heavily contributed to a steep drop in crime in the 1990s and crime today is at a 40-year low.

If Clinton were to change the disparity to 1:1, then it would likely result in higher crime and undo the necessary reforms that made crime as low as it is today.

It’s also hard to argue that the drug war is racist when many black leaders supported laws subjecting crack cocaine crimes to stricter sentences — including the Congressional Black Caucus–since crack cocaine was tearing apart the black community.

“The absence of any charge by black members of Congress that the crack–powder differential was racially unfair speaks volumes; after all, several of these representatives had long histories of distinguished opposition to any public policy that smacked of racial injustice,” wrote Harvard law professor Randall Kennedy. “That several of these representatives demanded a crackdown on crack is also significant. It suggests that the initiative for what became the crack–powder distinction originated to some extent within the ranks of African-American congressional officials.”

In a piece for National Review, Roger Clegg notes that studies suggest the reason why blacks are disproportionately incarcerated for drug crimes is because they disproportionately commit drug crimes. “If a disproportionate number of those arrested for drug crimes are black, it is because a disproportionate number of drug criminals are black,” he writes. “It is not true that all groups use illegal drugs at the same rate, and in any event it is not for using drugs but for selling them that people are typically sent to prison.”

Conclusion:

Federal crack penalties are responsible for less than 5,000 black convicts for year. That’s out of a total federal prison population for blacks of 562,000 black prisoners in the state and federal system. More powder cocaine sentences have been levied than crack cocaine sentences in recent years. And the penalties for distribution of crack and crystal meth are precisely the same on the federal level. Violent offenders represent the largest and growing segment of those in prison, not drug offenders.

Barack Obama’s contention that he would have gone to jail for drug use in high school is false, unless he was also dealing. Less than 1 percent of federally sentenced drug offenders were charged with simple possession, and a huge number of those who are sentenced to prison for drug use are largely those who have pled down larger drug charges or criminals who have violated parole through drug use. Actually, when it comes to federal drug prosecutions, Hispanics represent a disproportionate share of those convicted.

Concerned about the deadly effect of crack within their own communities, black members of Congress led the charge to pass the 1986 federal drug laws. The bill that was passed — which included the crack/powder sentencing disparity — did so with the support of the majority of black congresspersons.

None at the time objected to the sentencing disparity as “racist.”In 2006, the feds tried 5,619 crack sellers, and 4,495 of them were black — out of the 562,000 blacks in state and federal prisons at the end of that year. Add in county and city jails, and the figure rises to 858,000. And states’ crack cocaine laws are not the culprits. Only 13 states employ differing sentencing guidelines for crack vs. powder — and their differential is much smaller than that of the feds.

Sources/Further Reading:

James Slate

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I Defend American Institutions and Foreign Policy from a Neoconservative Perspective

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