In a wave of public apprehension in the early '80s, crack cocaine was demonized in a way that other addictive drugs had not been for two generations. Much of the reaction was to drug-related violence in the 'inner cities' along with a media drumbeat of references to crack houses, crack whores and crack babies. The violence was clearly the product of distribution rivalries, but it was associated in the public mind with the effects of the drug itself.

The response from Congress was the creation of the Office of National Drug Control Policy (ever-after known as the seat of the Drug Czar) as well as a U.S. Sentencing Commission--with the requirement of mandatory minimum sentences in the federal system. Witnesses at Congressional hearings at the time offered the opinion that crack was fifty times as addictive as powder. Following dubious logic and doubling the impact to show how tough on crime they were, they made the sentence for possessing five grams of crack (a heaping tablespoon) above five years, the same as for 500 grams of powder cocaine.

A couple of years ago, guidelines were reduced slightly. The present range for possession of five grams or more of crack cocaine is 51 to 63 months. The old range was 63 to 78 months. The new range for first-time offenders possessing at least 50 grams is 97 to 121 months in prison, down from 121 to 151 months.

Since crack by its nature is salable at a relatively low price, poor people bought it. Since poor people in the inner city are often black, race at once became a component in the equation. And there was satisfaction in some quarters to be able to push back against a generation of racial turmoil and black advances. Police could appear to be 'doing something ' about the scourge of drugs, keeping pressure on low-level dealers, while avoiding the onerous and largely thankless task of tracking down and convicting the kingpins that the legislation was ostensibly designed to pursue.

Exact numbers depend on which study you find, but there is general agreement that, with less than 12% of the population, blacks are about half of those imprisoned--nearly a million people--and roughly three-fourths of the blacks in prison are there for drug-related offenses. While about 25% of the users of crack cocaine are black, they represent over 80% of the convictions for crack offenses. And the mandatory minimums mean that they pile up in prisons.

In 2001, David B. Mustard, Associate Professor in the Department of Economics in the Terry College of Business University of Georgia, reviewed 77,236 federal offenders sentenced under the Sentencing Reform Act of 1984 and concluded:

First, after controlling for extensive criminological, demographic, and socioeconomic variables, I found that blacks, males, and offenders with low levels of education and income receive substantially longer sentences.

Second, disparities are primarily generated by departures from the guidelines, rather than differential sentencing within the guidelines. Departures produce about 55 percent of the black-white difference and 70 percent of the male-female difference.

Third, although black-white disparities occur across offenses, the largest differences are for drug trafficking.

Last, blacks and males are also less likely to get no prison term when that option is available; less likely to receive downward departures; and more likely to receive upward adjustments and, conditioned on having a downward departure, receive smaller reductions than whites and females.

This results in enormous disruption to the black community, especially those at the bottom of the economic ladder. Families torn apart, incomes reduced, respect for law diminished.

Encouraging signs

Candidate Obama and now President Obama consistently called for a thorough reevaluation of drug policy and the sentencing disparity. The appointment of Gil Kerlikowski as our new drug czar advances that aim. In accepting the appointment, Kerlikowski made a point of ending the 'War on Drugs' in name and to some extent in practice. He did say that he does not favor legalization of any substance now controlled--by law, the drug czar must oppose any attempt to legalize the use (in any form) of illicit drugs. But he would like to shift enforcement emphasis to the demand side--"treatment rather than incarceration "

And our senior senator, Jim Webb, has indicated strong support for a review of drug policy as part of his overall assault on the unfairness and cost--to individuals and to society--of the present structure of the criminal justice system

(Dave Sagarin, May 20, 2009)