Many of the drug offenders put in federal prison were African Americans. Blacks make up about 12 percent of the general population and about the same percentage of drug users. Yet the percentage of African Americans, mostly drug offenders, in federal prisons jumped from 30 percent in 1987 to more than 40 percent in 1996. The reason for the increase was a change in federal sentencing laws.
In the 1980s, crack cocaine hit the streets. Crack is made by cooking a mixture of water, baking soda, and powder cocaine. When the concoction dries, it becomes hard. “Rocks” can be broken off and sold in small amounts to users. Unlike powder cocaine, which is usually snorted, crack is smoked and quickly produces an intense high. (Powder cocaine can do the same if it is injected.)
Offering a cheap high, crack quickly grew popular in inner-city neighborhoods where it was sold on the streets. Soon rival gangs started fighting over who controlled the crack trade on different streets. Neighborhoods became terrorized by these turf wars. The media filled with stories of drive-by shootings and “crack babies” born addicted to cocaine. The 1986 drug-related death of University of Maryland star basketball player Len Bias drew further national attention to the cocaine problem.
Congress responded by passing the Anti-Drug Abuse Acts of 1986 and 1988. The acts created the Office of National Drug Control Policy. Its director, commonly called the “drug czar,” plans the nation's strategy in the drug war.
Among other things, the acts also set harsh penalties for dealers in cocaine. The law required a mandatory minimum 10-year sentence without parole for those dealing 5,000 grams or more of powder cocaine (about 10 pounds). Those dealing 500 grams or more (about one pound) receive a mandatory 5-year minimum.
Congress also set a similar two-tiered structure for crack sentences. But Congress believed crack cocaine to be more addictive, more linked to violent crime, and more likely to be dealt in small quantities than powder cocaine. It therefore set the minimum amounts of crack drastically lower than powder cocaine. A person dealing 50 grams (about two ounces) of crack receives the same 10-year-minimum sentence as a person with 5,000 grams of powder cocaine. A person with 5 grams (about two-tenths of an ounce) of crack gets the same 5-year-minimum sentence as a person with 500 grams of powder cocaine. In other words, Congress set a 100:1 ratio between powder and crack cocaine. (Most state drug laws also set a ratio between the two drugs, but none as large as 100:1.)
When Congress passed these laws, no one objected that they would affect blacks more than other groups. Because of its price, crack was favored by inner-city, predominantly black, drug users and dealers. Police concentrated on inner-city neighborhoods where crack was dealt on the street or in “crack houses” known to neighbors and police. It was more difficult to track down white crack and powder-cocaine dealers who usually met indoors in various neighborhoods. As a result, more African-American dealers were arrested and more than 80 percent of the crack dealers sentenced in federal courts were black. In the early 1980s, the sentences and time served in federal prison for blacks and whites averaged about the same length. By 1995, blacks were serving federal sentences 40 percent longer than whites.
Pros and Cons
This disparity has provoked debate over the fairness of the sentencing laws. Critics have questioned the wisdom of punishing crack and powder cocaine differently. They point out that both are cocaine and that powder cocaine can quite easily be made into crack. Criminologist Jerome Skolnick stated: “The law is equivalent, if eggs were illegal, to punishing the possession of omelets 100 times more severely than the possession of raw eggs.”
Critics also argue that the law makes small-time crack dealers suffer the same punishment as higher-level cocaine dealers. Five hundred grams of powder cocaine produces 2,500 to 5,000 doses and has a street value of from $32,500 to $50,000. This compares to 5 grams of crack, which produces 10 to 50 doses and is worth between $225 and $750.
Critics further question the association of crack and violence. Crack users, they argue, are no more prone to violence than powder cocaine users. The violence associated with crack, they explain, comes from the drug trade. Violence of this sort, they argue, could be linked to any illegal drug. They point out that Miami in the 1980s had the nation's worst rate of violence, and it was linked to trafficking powder cocaine.
Finally, some critics think the laws are racist. Whites commit the most drug crimes. Yet blacks get the most punishment.
Supporters of the laws believe they make sense. Crack, they argue, devastated inner-city neighborhoods. Because it was sold openly, it threatened these areas. Drive-by shootings and gang wars erupted over control of the crack business. Unlike crack, cocaine was usually sold behind closed doors and therefore did much less harm to communities.
Supporters also argue that crack is far more addictive than powder cocaine (as the two drugs are usually administered). Crack addicts, they say, pose special problems. Many commit crimes to support their habits. Pregnant addicts give birth to “crack babies,” born addicted and damaged. Supporters say that crack's relatively low cost and greater addictiveness makes it more likely to spread and a greater threat to society than powder cocaine.
Further, even some who think the laws are misguided do not think they are racist. Randall Kennedy, a black Harvard law professor, believes they are not racist because they weren't passed with racist intent. He has stated that “there's a difference between something being mistaken and counterproductive and something being racist. . . . [T]he war on drugs may very well be counterproductive, but no, I don't think it's racist.”
Court Challenges
Defendants have challenged the 100:1 ratio in federal appeals courts, but the courts have refused to overturn the sentencing laws. The Supreme Court has declined to hear any of these cases. The challenges have been mainly based on three legal grounds.
The first is that the 100:1 ratio, in practice, discriminates against African Americans and denies them equal protection of the law. (The 14th Amendment prevents states from denying anyone equal protection. The courts have held that the Fifth Amendment's due process clause requires the same of the federal government.) The courts have found, however, that neither the laws nor lawmakers had a discriminatory purpose. Therefore the courts have held that the laws must simply pass a “rational basis” test. Courts have ruled that the laws pass this test, because Congress had a legitimate purpose in protecting the public against a cheap, addictive drug and it believed that the 100:1 ratio would help do this.
One state court struck down its sentencing law as violating the state's guarantee of equal protection. Minnesota law had a 100:30 powder-to-crack ratio. The court noted that the ratio affected mainly African American drug users and therefore violated the state's guarantee of equal protection (State v. Russell, 1991). The Minnesota legislature rewrote the law and made sentencing the same for 30 grams of cocaine as it was for 30 grams of crack.
The second legal argument is that the laws violate due process because there are different punishments for the same drug—crack and powder cocaine. Some courts have rejected this argument stating that the two drugs are different. Other courts have stated that even if they are the same drug, they differ in usage and effect on the user.
The final legal argument is that the laws violate the Eighth Amendment's ban on cruel and unusual punishment. The Supreme Court in Solem v. Helm ruled that criminal punishments cannot be disproportionate to the crime. The Third Circuit in U.S. v. Frazier, however, found that:
“There are reasonable grounds for imposing a greater punishment for offenses involving a particular weight of [crack] than for comparable offenses involving the same weight of cocaine. These grounds include differences in . . . the method of use, the effect on the user, and the collateral social effects of the traffic in the drug.”
The Supreme Court has never heard a case on the constitutionality of the 100:1 ratio. But it has decided a case that charged prosecutors of singling out African Americans for prosecution under federal crack laws. Four defendants moved to have their case dismissed because all 24 crack cases prosecuted in 1991 by one office had black defendants. The trial judge ordered prosecutors to provide a list of all crack cases and the race of the defendants for the previous three years. Prosecutors refused and appealed all the way to the Supreme Court. In 1996 in U.S. v. Armstrong, the court in an 8–1 decision reversed the trial judge's order. The court ruled that to prove a selective prosecution case, defendants must show that prosecutors are refusing to prosecute other cases involving white defendants. The statistics shown by the defendants in this case, said the court, proved nothing, because “people of all races” do not “commit all types of crimes.” The court pointed out that statistics showed that more than 90 percent of all convicted LSD dealers, prostitutes, and pornographers were white.
Congressional Action
In 1995, the U.S. Sentencing Commission recommended that the 100:1 ratio be equalized to 1:1. The commission is an independent, permanent agency set up by Congress. It develops sentencing guidelines for federal crimes. Congress rejected the recommendation. Two years later, the commission again recommended a change, but this time suggested a 5:1 ratio reached by increasing the amount of crack cocaine and lowering the amount of powder cocaine. The Clinton administration advocated a 10:1 ratio. Senator Spencer Abraham (R-MI) introduced legislation for a 20:1 ratio that keeps the five gram level for crack cocaine but lowers the amount of powder cocaine to 100 grams. Congress has not acted on any of these proposals.
For Discussion
- What is the 100:1 ratio?
- If Congress were to equalize the crack-powder ratio at 1:1, what might be some reasons for and against either lowering the amount of powder, raising the amount of crack, or moving both? Explain.
- Do you think the federal sentencing laws on crack cocaine discriminate against African Americans? Explain.
Class Activity: The Ratio
In this activity, students role play a congressional committee deciding whether to recommend changing the 100:1 ratio.
- Form small groups. Each is a congressional committee considering changing the 100:1 ratio.
- Each group should:
- Make a list of the pros and cons of the 100:1 ratio.
- Decide whether or not to recommend changing the ratio.
- If the group decides to change the ratio, decide what the new ratio should be and whether to lower the amount of powder, raise the amount of crack, or move both.
- Prepare to report back its recommendations and the reasons for them.
- Have the groups report back and hold a discussion. Conclude the activity by taking a vote on whether or not to change the ratio.