Criminal Justice Policy Practice Determine Morality Higher

¶ … Criminal Justice Policy Practice Determine Morality

Higher Than Utilitarianism

The passing and reformation of the Anti-Drug Abuse Act, also known as the so-called "crack law," is one of the most controversial pieces of legislation to be considered within the criminal justice system and its policy during the past two years. There are several aspects of this legal mandate that present a plethora of interesting situations and questions in regards to the morality of this particular issue, which has been at the forefront of mass media outlets ever since there were significant amendments passed to it in 2010. Interestingly enough, a fair amount of those changes may be attributed to the notion of morality revolving around this legal code, which was largely responsible for the rapid and prolonged imprisonment of minorities -- particularly African-Americans and Latino offenders. One of the most efficacious means of determining whether such a law may be deemed moral or ethical would be to measure it against the classical theory of morality known as utilitarianism, which was propagated by a number of noted philosophers such as John Stuart Mill, Jeremy Bentham, and David Hume. Careful examination of the legal, social, and ethical repercussions of the Anti-Drug Abuse Act may be considered within the framework of utilitarianism thought to properly gauge whether this particular piece of legislation is actually one that can rightfully be considered moral.

However, it should be noted that the dubious nature of the morality of the crack law may be questioned due to the fact that it was significantly altered in 2010 to mitigate the sentences of the numerous inmates and criminal offenders who have been regularly incarcerated due to its enactment and enforcement. A brief historical observation of the origin of this legislation traces back to its 1986 origin, a time in which crack cocaine -- which is made from heating up the powdered form of the narcotic and which solidifies through the addition of bacon soda into a sallow, yellowish looking crystal -- was highly prevalent within urban areas, and was alleged to be the cause of numerous malfeasances in society such as theft, violence, and the engendering of cocaine addicted infants. Therefore, criminal justice policy makers decided to target the rapid use and trafficking of this narcotic by implementing legislation that widely pertained to the issue of sentencing for the illicit possession of this drug. Legislators passed a law that ordained that the sentencing for crack cocaine would be disseminated at a rate that was excessively more severe than that for the powdered form of cocaine, and which translated to a ratio of 100 to 1.

For the numerous amounts of African-American and Latino citizens who may have trafficked, used, or sold the substance, the effect of the crack law would be nothing short of disastrous for their livelihoods -- and a considerable boon for the prison system. As little as five grams of crack would earn an offender a minimum of five years in prison. Meanwhile, it would take 500 grams of powdered cocaine to earn an offender that same five years in prison. Most devastating of all was the fact that an offender with two prior drug-related felony convictions would be sentenced to life in prison if he was found in possession of a minimum of 50 grams of crack. Frequently, those incarcerated for crack cocaine would be given few opportunities for substance assistance departures (Hartley et al. 382). A number of sources considered such legislation, which claimed to be prompted by the fact that crack was conducive to violence and widely prone to be more addictive than the powdered form of cocaine, largely discriminatory in nature since it imprisoned several minority offenders for considerably longer sentences than for those who were apprehended with significantly more powdered cocaine.

Yet in 2010, the Fair Sentencing Act was passed to widely reduce the disparity in the sentencing between traditional cocaine and that of crack. The ratio of the sentences was mitigated from 100 to 1 to 18 to 1, while certain aspects of the previous legislature were discontinued -- such as the mandatory life imprisonment for those convicted of a third felony in which they were is possession of more than 50 grams of crack. Just as important as this 2010 amendment to this law was the amendment made in 2011 in which the law was enacted and effected retroactively. Therefore, convicts who had been sentenced prior to the Fair Sentencing Act are now eligible to get reductions in their sentences.

There are several facets of Utilitarianism that are germane to the discussion of the morality of such a piece of legislation that appears to wantonly convict a particular offender (and even a particular personage from a certain socio-economic background) in a method that is harsher than those who make a similar transgression with a different form of the same narcotic. First and foremost, utilitarianism is a form of consequentialist philosophy, which posits that the moral worth of an action can largely be measured by the effects that it produces. Additionally, utilitarian thought propounds that the course of action that presents the most good is the one that is most ethical and moral in nature. Such good is frequently measured in terms of happiness, which may be stratified in certain contexts to help determine between degree, duration, and intensity of pleasure derived from an action -- all of which needs to be taken into consideration in order to properly gauge its moral value.

Therefore, utilitarianism practitioners believe that a moral practice or action can largely be determined by the amount of use (which is measured in terms of felicity) that is engendered by that practice or action. What is interesting about this notion is that prior to utilitarianism thought, there were many philosophers who largely contrasted utility with pleasure, which can be observed in the response to Epicurean thought (Mill). However, in adherence to the perspective that the greatest principle of happiness is that which can be judged the most moral, the converse of this conception maintains that actions which produce the greatest unhappiness are to be adjudged as immoral and largely unethical in scope and in perception. This aspect of utilitarianism thought will be most influential in its application to the many imprisoned for lengthy sentences (and for relatively modest amounts of possession of narcotics) via the crack law, especially in its manifestation which predated the Fair Sentencing Act of 2010.

When it comes to viewing the crack law through a lens of utilitarianism, a number of fairly salient features of this piece of legislation and its effects upon criminal offenders become readily apparent. The principle facet of this law that is highly indicative of what little good it produced can be found in the fact that the law was greatly reduced in severity in 2010. The attempts to get the austerity of the sentencing mitigated dates back several years, although in many respects it was begun in earnest in 2007 when the United States Sentencing Commission made fledgling attempts at amending it (Kosman). A number of contemporary policy makers who are directly involved in the determining of criminal justice policy (including the current United States President) were fairly vocal about the disparity in the disproportionate sentences that were routinely incurred by minority offenders for non-violent criminal activity.

In terms of utilitarianism, then, the question largely becomes whether the reduction in the sentences of such offenders, which has enabled and should continue to enable a number of offenders wrenched away from their families and what livelihoods they were trying to form for themselves, to come home. The implications of this fact, and its consequences and the good it produces, should not be underestimated. Again, it should be considered that there are numerous offenders who have received lengthy sentences for reasons such as they were simply addicted to or becoming addicted to an illegal substance that happened to be crack. Others were merely trying to earn a living while peddling the narcotic -- and not attempting to harm anyone and happened to be caught with the substance (in some instances on their first few attempts in possession of it), and were required to engage in more prison time than rapists, violent offenders, and other criminals -- simply due to the partisan nature of the crack law's sentencing regulations.

The utilitarianism perspective on this issue would seek to determine whether the greatest good would be produced by uniting such people with their families (who may have incurred their own share of punishment and suffering at having lost a financial and emotional provider) and by allowing them to pursue life-altering changes that created good with their lives and the lives of those around them, or by allowing them to sit in jail, earning mere pennies for an hour's worth of labor, while their families and loved ones suffered in neglect. The answer appears fairly obvious, and seems to imply that the greatest good is produced by allowing such people to make some sort of useful existence for themselves out of the confines of a jail cell.

The dichotomy with which this situation may be viewed, of course, is an intrinsic component of utilitarian thought and which may be evinced by one of its champions, Jeremy Bentham. One may posit just as convincingly that those condemned to lengthy prison sentences via the crack law would simply return to being detriments to society if released, by engaging in illicit behavior (the selling of street narcotics) and leading subversive, counterproductive lifestyles. All people have this duality of choice, which Bentham referred to as pleasure and its antithesis, pain, which he believed "govern us in all we do, in all we say, in all we think" (Bentham 1).

However, while such a debate may be largely settled by the particular opinion of the voice that speaks loudest and longest, there are other facets of the crack law that may be analyzed by utilitarianism to determine whether or not the huge disparities in sentencing between those convicted of rock cocaine and powdered cocaine, (which is largely a question of African-American offenders and non-African-American offenders) would be condoned as being moral. The fact that the convictions for rock cocaine and that for traditional cocaine are largely based on race may be indicated from the following quotation. "The contrasting laws for possession of crack and powdered cocaine constitute a frequently discussed example of a law allegedly written in a manner that produces sentencing differences. Over 90% of those convicted of possessing 5 grams of crack cocaine, a felony offense that carries a 5-year minimum sentence, are black. This contrasts sharply with penalties for powdered cocaine users, who are predominantly white. Conviction for possessing 5 grams of powdered cocaine is a misdemeanor punishable by less than a year in jail" (Mustard 288-289).

The arbitrary nature of such sentencing would more than likely not escape the notice of utilitarianism philosophers and practitioners. After all, there can be very few people who can be said to prosper from partisanship, even less a partisanship based upon such an arbitrary law that mandates that the addition of baking soda to a narcotic makes it 100 times more punishable than the narcotic without it. If any opposition would choose to mandate that those receiving lighter sentences prosper under such partisanship, they should note that reduced sentences benefit everyone who receives them, not just those who happened to have traditional cocaine. Yet the determining factor in this particular stance on the utilitarian perspective of the crack law can be found in the converse of this argument, it which it is quite clear than none receive felicity in being dealt longer sentences. In fact, it may be argued that the dissemination of longer sentences produces unhappiness, or what Bentham referred to as "pain," both emotionally and literally. Therefore, such a painful act would be judged immoral, and yet another reason why utilitarianism philosophy would judge the crack law as being unethical.

Therefore, when analyzing the findings revealed through the discussion of the crack law as viewed by traditional utilitarianism, it becomes fairly apparent proponents of this philosophy would not view such a law as moral, and would in all likelihood deem it to be immoral. The amount of utility produced by the reduction of formerly long sentences would certainly equate to more intense and prolonged pleasure than that which would be engendered by convict staying in prison. Conversely, the unhappiness produced by the imprisonment of non-violent offenders whose crime was just as much political (since the same substance without the addition of baking soda has never been nearly quite as punishable) as it was subversive, would more than likely be viewed as immoral. Additionally, when one factors in the arbitrary nature of the politics that led to the severe sentences of one substance vs. The relatively minor sentencing of the same substance in a powdered form, and the fact that such partisanship engenders more unhappiness, the immorality of the crack law becomes all the more pronounced.