Last week, Congress and the White House joined forces in the drug war. New guidelines from the U.S. Sentencing Commission would have equalized the treatment of crack and powder cocaine where federal sentences for drug trafficking are concerned — by sharply reducing crack sentences, in effect. Congress balked. The president agreed, signing legislation to block the change. And therein lies a tale about crime and race in America that you will not read in the New York Times.
Under existing law, it takes 100 times as much powder as crack to trigger the same federal prison term. Possession with intent to distribute 500 grams of pow der gets you a “minimum mandatory” five years in the big house. Crack dealers s uffer as severe a penalty for “mere ly” 5 grams of their stuff.
Chemically speaking, the two drugs are identical, and cocaine powder is used to manufacture crack. So the current sentencing scheme has its obvious anomalies. A retail crack dealer faces a sentence two to six times stiffer than the mid-level powder dealer who sold him his supply in the first place — even though, in the narcotics-world scheme of things, the crack dealer is arguably a less significant player.
And then there’s the question of race. The vast majority of sentenced federal crack defendants — 90 percent of them in fiscal year 1994are black. Blacks are not a majority of sentenced powder defendants, however. The effect of federal sentencing practices, then, is to send more blacks than whites to prison, for longer periods, as punishment for selling lesser quantities of essentially the same substance. And drug offenders are the fastest growing sector of the federal inmate population.
Does this mean the drug war — and, by extension, American justice generally — is racist? It’s an increasingly popular worry these days. The president himself says that “something is terribly wrong” when almost “one in three African-American men in their twenties’ is “under the supervision of the criminal justice system.” Speaking in Austin last month, he specifically condemned the “disproportionate percentage” of black drug defendants in prison “in comparison to the percentage of blacks who use drugs in our society.” And he has more than once singled out the 100-1 crack/powder sentencing ratio as unfair.
Still, the president did sign bipartisan legislation to maintain that ratio last week. And so, predictably, he was swiftly condemned by almost everyone who had anything to say on the subject. The Washington Post, for example, mocked Clinton for employing “the usual anti-crime rhetoric” in defense of federal policies that “operate unjustly.” He made “the easy, politically safe choice” in an election season, “but it was the wrong one.”
No, it wasn’t.
To begin with, the numbers now commonly adduced in support of drug- sentencing reform are misleading. Take the following ritual incantation about cocaine enforcement, for instance: Blacks are just 13 percent of drug users, but nevertheless are involved in 35 percent of possession arrests, 55 percent of drug convictions, and 74 percent of drug-related prison sentences.
All basically true. But false at the same time. User statistics tell us nothing sure about the skin color of dealers, who are the overwhelming majority of federal and state drug defendants. And even insofar as users are a crude, commonsense proxy for dealers, these numbers deceive. They’re not cocaine-specific at all.
According to the 1991 federal Household Survey on Drug Abuse, while blacks account for 11.7 percent of the total population, they make up 21.8 percent of past-month cocaine users, and 41.2 percent of weekly cocaine users. Both these numbers are low-end estimates. The survey covers households only, and misses certain groups — like the homeless — widely assumed to use cocaine at higher levels. A more recent federal survey makes clear that blacks are patients in cocaine-related emergency-room visits at almost 14 times the rate for whites.
So though a user/convict disparity remains, it is significantly smaller. And a closer look at the statistics does tend to confirm the “media stereotype” that the cocaine (and crack) business, with all its horrors, is heavily concentrated in black, inner-city neighborhoods. Which is why, quite naturally and appropriately, drug law enforcement resources are “disproportionately” devoted to those neighborhoods. And why the pool of potential prison inmates — people arrested on drug charges — is so heavily skewed towards blacks.
Who are the nation’s sentenced black drug offenders, though? If you join the 100-1 cocaine sentencing ratio to President Clinton’s statistic about one-in- three young black men living under judicial scrutiny, you might easily conclude that America incarcerates millions of non-violent black youths for small-time trafficking. But you’d be wrong. The 100-1 ratio is essentially irrelevant to the overall prisoner population. It applies only to federal trafficking crimes, and 90-plus percent of American inmates are in state justice systems.
Moreover, nowhere near a third of all young black men are actually in prison. A full 480,000 of the 785,000 such men “supervised” by 1 the criminal justice system are on probation or parole, which as things now stand (alas) means next to nothing. Another 95,000 young blacks are in jail awaiting trial or serving short time. Most of them will soon be out.
So there are really about 210,000 young black men in prison, or 8 percent of their total age group. And they are just like the 260,000-odd white and Hispani c young men in prison: Most of them are exactly where they belong. Ninety-four percent of all state prisoners are violent or repeat cri minals. Ninety-two percent of federal inmates have a history of violence. The typical federal crack defendant — to whom the 100-1 ratio does apply — has sold 109 grams of cocaine, or roughly 3,000 individual doses, and has a criminal record. There were 3,430 federal crack defendants in 1994. Only 48 sentences were given to young, non-violent minority males with no prior records.
The crack/powder sentencing ratio President Clinton affirmed last week reflects Congress’s sensible judgment that crack is the more dangerous form of cocaine. It is more addictive. And its dealers have by far the worst criminal profiles of any federal drug defendants. On average, they have much more extensive and serious prior records. And they are much more likely to possess a weapon at time of arrest. Federal law makes similar sentencing distinctions for other drug crimes. Opium is dealt with less harshly than its heroin derivative. And “ice” is punished more severely than chemically related methamphetamine. There’s nothing “racist” about it.
Neither, it must be said, is there anything magically “right” about a 100-1 ratio, and there’s much that’s inconsistent and inequitable about it. But reducing that ratio needn’t involve lesser crack sentences. The Sentencing Commission’s proposed 1-1 ratio would have allowed 50-gram crack dealers, previously subject to mandatory 10-year terms, to escape prison entirely in some circumstances — and return to their neighborhoods. Black America wouldn’t have been better off. There’s another way, of course. Senator Spence Abraham has proposed a measure to cut the ratio to 20-1 by lengthening sentences for powder.
Don’t hold your breath waiting for critics of the current system to embrace the Michigan Republican’s bill. It would be more “fair.” But it wouldn’t address racial imbalances among prison inmates, either. More blacks than whites are charged with federal powder offenses, too. In fact, no ratio change can significantly alter existing inmate demographics; the entire controversy is bogus. Had the Sentencing Commission proposals taken effect, they would have produced a long-term reduction in the federal prisoner population of fewer than 5,500 individuals. Not much dent in a 210,000-man problem.
There are only two ways for the nation to redress black overrepresentation in federal and state prisons, as it should. We can grant early releases to whole classes of drug and violent offenders. Or we can try to reduce crime rates at the front end. Only the latter option is sane and just.
–David Tell, for the editors
