Crack and Coke, Revisited

The U.S. Sentencing Commission is holding hearings on the enormous disparity between the respective punishments for crack and powder cocaine.  It's long overdue.  It's been twenty years now since the death of Len Bias, the event that precipitated the draconian and clearly discriminatory guidelines (not that proving either would justify Congress' overreaction, but it has never been established whether Bias took powder or crack cocaine the night he died). 

Before that 1986 law was passed, black men convicted of drug crimes received on average an 11 percent longer sentence than white men.  After the law, the figure jumped to 49 percent.  Blacks now represent about 12 percent of the U.S. population, but 48 percent of the prison population. They represent just 13 percent of drug users, but 38 percent of those arrested for drug crimes, and 59 percent of those convicted.  The so-called "100 to 1" problem refers to the fact that it one would need to get caught with 100 times as much powder cocaine to get the same sentence meted out for possession of crack.

Even hardened drug warriors are raising concerns:

A federal judge who served as a top drug policy adviser to the first President Bush and advocated harsher penalties for crack cocaine crimes said Tuesday the policy had gone too far and was undermining faith in the judicial system.

U.S. District Judge Reggie B. Walton told the U.S. Sentencing Commission that federal laws requiring dramatically longer sentences for crack cocaine than for cocaine powder were "unconscionable" and contributed to the perception within minority communities that courts are unfair.

"I never thought that the disparity should be as severe as it has become," said Walton, who sits on the bench in Washington, where he previously served as a Superior Court judge, a federal prosecutor and a deputy drug czar.

As a senior-level congressional aide at the time, Eric Sterling helped write the crack law.  He reversed course on the drug war many years ago, and has since become an activist for the reform movement.  He writes on the hearings in the L.A. Times:

If logic prevails, in the next Congress we may finally see an end to one of the most unjust laws passed in recent memory. And that might correct the biggest mistake of my professional life.

We still cling to 20-year-old ideas that crack is somehow uniquely harmful: It is instantly addictive; it makes you especially violent; it causes women to abandon their babies; the babies of crack users will be basket cases. None of these are true.

Also, because crack is no longer a big news story, people mistakenly believe our anti-cocaine policy has worked. Not so. There is no scarcity of cocaine. Since 1986, the price of cocaine has fallen and the quality is better. Cocaine deaths have increased. The number of crack users is basically unchanged.

As you might expect, the Justice Department doesn't get it.  A DOJ spokesman told the Associated Press that the Bush administration would support remedying the discrepancy, but only by increasing the penalties for powder cocaine to make them equal to those for crack -- what you might call the "American gulag" solution. 

I did find this line from the AP story encouraging:

Walton said the law wasn't intended to target poor people or minorities. But with a disproportionately high number of minorities in prison and potential jurors openly balking at convicting drug offenders because of concerns over the fairness of the system, Walton said the problem must be addressed.

Walton of course considers jury nullification a problem.  I think it's a solution, at least at the micro level.  And if growing support for nullification causes legislators and policymakers to reconsider policy at the macro level too, all the better.