Newsgroups: talk.politics.drugs
Subject: Race Bias Built Into Law: Skolnick
From: Jim Rosenfield <[j n r] at [igc.apc.org]>
Date: Tue, 13 Jun 1995 21:50:49 -0700 (PDT)

RACIAL BIAS IS BUILT INTO THE LAW    Los Angeles Times    6/13/95

It takes 100 times the amount of powder cocaine to trigger the
typical sentence for a street seller of crack.

By JEROME H. SKOLNICK

   With all the hoopla about affirmative action, the public is
scarcely aware of a federal program that discriminates against
blacks. You could look it up--but not under the "affirmative
action" heading. Instead, check out the Anti-Drug Abuse Act of
1986, which mandates a minimum 10-year sentence for anyone
convicted of selling 50 grams or more of crack cocaine or
possessing that amount with the intent to sell. By contrast,
dealers in powder cocaine have to be convicted of selling 100
times the amount of crack to trigger the same penalty.
   Crack is nearly pure cocaine, suitable for smoking. Absorbed
across the pulmonary vascular bed, crack produces a quicker,
more intense but shorter high than nasally infused powder
cocaine. (If injected, powder cocaine has an effect similar to
crack.) 
   Those who trade in cocaine, whether crack or powder, are
profit-seeking entrepreneurs. Some use, most don't, not even
most street dealers. Present penalties punish mostly
lower-level crack dealers, who are easier to catch and convict.
The higher one's position in the marketing chain, the less
vulnerable one is to detection and arrest. 
   Powder cocaine is preferred by middle- and upper-class
users, most of them white. Crack is marketed more heavily in
minority, especially African American, communities. By being
100 times tougher on crack dealers, we jam our prisons with
small-time vendors and addicts, offer big-time powder cocaine
merchants a break and produce exceptional racial disparity.
Does that make sense?
   A study for the Bureau of Justice Statistics by Douglas C.
McDonald and Kenneth E. Carlson looked at sentences for crack
cocaine dealing between Jan. 20, 1989, and June 20, 1990, after
full implementation of the federal sentencing guidelines. The
average sentence of blacks and whites differed substantially:
102 months versus 74 months--a 37% spread. The maximum
sentences for blacks were 41% longer than those for whites: an
average 71 months versus 50 months. The authors do not blame
the difference on discrimination by trial judges, but attribute
it largely to the 100-to-1 sentencing distinction between crack
and powder cocaine.
   The law mandating this ratio is absurd, foolish and
outrageous. It is absurd because it punishes retail crack
dealers with far longer sentences than apply to the wholesalers
who supply them with the same amount of the drug. It is foolish
because it is hardest on the lowliest dealers who are most
easily replaceable. And it is outrageous because the federal
circuit courts have rejected equal protection, due process or
any other constitutional arguments challenging the law.
   The courts say that despite the association between black
and crack and white and powder, and the disproportionately
adverse impact of the law on African Americans, Congress showed
no racial animus in passing the law. Perhaps Congress didn't
understand the disparate impact of the law in 1986. Now
Congress should know, and if attempts to give the law more
balance are voted down, black defendants will have a stronger
constitutional argument.
   After extensive study, the U.S. Sentencing Commission
published a report this February strongly criticizing the
congressional approach to sentencing cocaine offenders. It
points out the anomaly in the 100-to-1 ratio: Retail crack
dealers are given longer sentences than the wholesale
distributors who supply them with the powder cocaine to produce
their crack. Recognizing that crack and powder cocaine are
pharmacologically the same, the report advises that the
100-to-1 ratio cannot withstand scientific scrutiny and
concludes that it has had a disparate, prejudicial impact on
African Americans. 
   Despite the commission's report, the Justice Department is
urging Congress to maintain these disparate sentencing
practices. Atty. Gen. Janet Reno says that equalizing penalties
for equal amounts of crack and powder cocaine would "fail to
reflect the harsh and terrible impact of crack on communities
across America." The attorney general, an ex-officio member of
the Sentencing Commission, attended some of the hearings. She
is exceptionally intelligent and must know that the disparate
penalties have scarcely solved the drug problems in our inner
cities. One has to wonder how she could have reached that
conclusion. Might it have to do with an election scheduled for
1996, and an Administration that needs to show that it is tough
on drugs?
--------------------------------------------------------------
   Jerome H. Skolnick teaches in the Jurisprudence and Social
Policy Program at Boalt Hall, UC Berkeley's School of Law. He
testified before the U.S. Sentencing Commission in 1993.

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