Crack versus powder cocaine sentencing disparities and African-American incarceration

PRIVATIZATION of the PRISON SYSTEM and the IMPACT of the DIFFERENTIATION of SENTENCING in POWDER vs. CRACK COCAINE OFFENSE and the IMPACT on African-American OFFENDERS

HISTORICAL BACKGROUND of the POLICY

In 1986 and 1988, the U.S. Congress passed federal sentencing laws related to crack cocaine that differentiated the sentences imposed upon defendants in powder and crack cocaine related offenses in what is known as the 'Anti-Drug Abuse Act of 1986'. These stricter sentencing guidelines were passed to address the emerging issue of crack cocaine which was perceived to be."..a social menace that was categorically different from powder cocaine in its physiological and psychotropic effects." Crack cocaine is powder cocaine mixed with banking soda and then cooked into hard rocks, which are then broken up into smaller pieces and sold to those who use the drug by smoking it. Crack cocaine is cheaper than powder cocaine and aroused great public concern when it first hit the streets in the United States. According to Alfred Blumstein of Carnegie Mellon University, as reported by Coyle (2002) in the work entitled: "Race and Class Penalties in Crack Cocaine Sentencing" crack cocaine began as an innovation in the drug market "crack distribution rights and boundaries were apportioned amongst competitors with the use of violence." (Coyle, 2002) the following table relates the median street-level dealer drug quantities and mandatory minimum imposed by the Anti-Drug Act of 1986.

Median Street-Level Drug Quantities and Mandatory Minimums

Drug

Median Drug Weight

Mandatory Minimum

Crack Cocaine

52 grams

10 years

Powder Cocaine

340 grams

Source: Coyle (2002

Congress created the United States Sentencing Commission in 1984 for the purpose of developing federal sentencing guidelines for the purpose of bringing about a reduction of sentencing disparity. By 1994 in alliance with provisions set out in the Omnibus Violent Crime Control and Law Enforcement Act, the Commission was instructed to conduct a study relating to different penalties in powder- and crack-cocaine sentencing. The study lasted the duration of one year with recommendations by the Commission to the U.S. Congress to revise the crack/powder 100:1 sentencing disparity due to findings that due to the small differences in the two forms of cocaine that such sentencing disparities were not justifiable. Commission advised an equalization (1:1) of the quantity ratio that would require mandatory sentencing relating to the two forms of cocaine. Commission recommendations included advisement that guidelines in federal sentencing should be based upon criteria other than the type of drug for determination of the lengths of sentences. These recommendations were rejected by the U.S. Congress along with refusal to make changes to the law and was in fact the first such move in the history of the United States Sentencing Commission since its' formation. Once again, recommendations were made in April 1997 regarding the disparity in sentencing between crack- and powder-cocaine that the differential sentencing should be balanced through provision of a range of 2:1 to 15:1 for Congress to choose from among. This new recommendation "was based on both raising the quantity of crack and lowering the quantity of powder required to trigger mandatory minimum sentences." (Coyle, 2002) Once again, Congress failed to act on the Commission's recommendation. The political climate provided support for the rejections of the Commission's recommendations by Congress and it was not until: "...the last year of his second term" that President Clinton endorsed a "10:1 ration to be arrived at by raising crack weight minimums and lowering powder ones. Congress however made no revisions." (Coyle, 2002) Originally, both the public and congress held a view of crack cocaine as being the instigator of violent offenses due to the chemical makeup of the drug and its reaction on the human system. It was widely believed that crack users were violently enraged due to the effects of the drug on the individual. This did appear to be the case in the advent of crack cocaine on the streets because violence and gang-related crimes were occurring simultaneously to the emergence of crack cocaine. The view held included perceptions such as those stated as follows: "Crack is a more dangerous and harmful substance than cocaine powder for a number of reasons. The most common routes of administration of the two drugs cause crack to be the more psychologically addictive of the substances, particularly because smoking crack produces quicker, more intense, and shorter-lasting effects than snorting cocaine powder. Identifiable social and behavioral changes occur much more quickly with the use of crack than with the use of cocaine powder. Crack can also be broken down and packaged into very small and inexpensive quantities for distribution and is thereby marketed to the most vulnerable members of society, including those of lower socioeconomic status and youth. Additionally, the open-air street markets and crack houses used for the distribution of crack contribute heavily to the deterioration of neighborhoods and communities. Finally, the present crack market is associated with violent crime to a greater extent than that of cocaine powder." (House of Representatives Report 104-272, Sept. 29, 1995) Changes have occurred in the perspectives held toward crack-cocaine since the 'Anti-Drug Act of 1996', which imposes harsher sentencing on crack-cocaine offenders than on powder-cocaine offenders. In a October 2, 2007 report entitled: "Supreme Court Examines Disparity in Crack and Powder Cocaine Sentences" it is related that "A federal judge's decision to slice a few years off a lengthy prison terms has brought to the Supreme Court the radically tinged issue of harsh sentences for dealing crack cocaine. Derrick Kimbrough, a black veteran of the 1991 Gulf War, received a 15-year prison term for selling both crack and powder cocaine, as well as possessing a firearm in Norfolk Virginia." (PR-Inside World News, 2007) the mandatory minimum sentencing laws relating to crack cocaine were called 'ridiculous' by U.S. District Judge Raymond a. Jackson whose decision is now going before the U.S. Supreme Court of Appeals. The primary result of the 100:1 sentencing guidelines is the disparity in the incarcerations between white and black defendants. Black Americans are much more likely to be sentenced for offenses of dealing crack cocaine than are white individuals because the more affluent white individuals prefer powder cocaine and because powder cocaine is the 'trendy' and 'in' form of the drug to do. The work of Levenson (2006) entitled: "The Cocaine Sentencing Disparity" relates that: "Crack is often portrayed as a violence inducing substance. The stereotypical crack user is a poor black urbanite who will use any means necessary to get his next fix. Powder cocaine, on the other hand, is seen as an upper-class white drug used by businessmen and clubbers. This distinction has led policy-makers to justify their sentencing recommendations by labeling crack traffickers and users as volatile and violent, more so than powder cocaine dealers." (Levenson, 2006) So prevalent is this disparity that a poor black women, with children who has purchased 5 grams of crack to feed her addiction "would be sent to jail much longer...than for buying 5 grams of powder cocaine which she could not afford." (Levenson, 2006) Levenson further relates that the racial disparity that exists "among person convicted of possession or trafficking of crack cocaine is obscene and is only aided by the 100:1 ratio. According to a report published by 'The Sentencing Project' about 2/3 of crack cocaine users are white or Hispanic. However, crack cocaine convictions for possession in 1994 were handed primarily to blacks. The defendants in 1994 were 84.5% black, 10.3% white and 5.2% Hispanic. For the offense of trafficking, the defendants were 88.3% black, 10.3% white and 5.2% Hispanic. For powder cocaine, in 1994, the defendants of possession were 26.7% black, 58% white and 15% Hispanic, and for trafficking, the defendants were 27.4% black, 32% white, and 39.3% Hispanic." (Levenson, 2006) White this trend has been noticed by the courts in the United States, and challenges to the sentencing policy have been posited on constitutional grounds, and even though "arguments have been set forth that the 100:1 quantity ration denies equal protection and due process, constitutes cruel and unusual punishments, and that the policy is vague under the terms of the constitution...these arguments have failed in federal appellate court." (Levenson, 2006) Levenson states that it is unfortunate that in the United States inner-city blacks have been stereotypes as: "...poor, violent, drug users who are a threat to society. The same stereotypes peg poor blacks as prime candidates for crack cocaine use as it is cheaper than the powdered version. Thus, to keep the violent addicts of the street the government struck using the very crack that kept the users poor." (Levenson, 2006) Finally, it is related by Levenson that: "The presence of racism is especially striking when we take note of the fact that 2.3 of crack cocaine users are white or Hispanic." (Levenson, 2006)the work entitled: "Cracks in the System: Twenty Years of the Unjust Federal Crack Cocaine Law" (2006) relates the fact that: "In 1986, before the enactment of federal mandatory minimum sentencing for crack cocaine offense, the average federal drug sentence for African-Americans was 11% higher than for whites. Four years later, the average federal drug sentence for African-Americans was 49% higher." (Vagins and McCurdy, 2006) Additionally stated by Vagins and McCurdy is: "In 2000 there were more African-American men in prison and jails than there were in higher education, leading scholars to conclude that our crime policies are a major contributor to the disruption of the African-American family. The effects of mandatory minimums not only contribute to these disproportionately higher incarceration rates, but also separate fathers from families, separate mothers with sentences for minor possession crimes from their children, create massive disenfranchisement of those with felony convictions, and prohibit previously incarcerated people from receiving some social services for the betterment of their families. In short, this policy is a failed policy in that the goal of this law was to target high-level drug traffickers but in reality, mandatory penalties for crack cocaine offenses "apply most often to offenders who are low-level participants in the drug trade." (Vagins and McCurdy, 2006) Sentencing Commission data has revealed that "73% of crack defendants have only low-level involvement in drug activity, such as street-level dealers, couriers, or lookouts." (Vagins and McCurdy, 2006)

III. DESCRIPTION of POLICY

The 'Anti-Drug Act of 1996' specifically mandates mandatory sentencing in crack cocaine related offenses, even low-level offenses, referred to as the 100:1 law due to the disparity in sentencing within the scope of these guidelines. There appears to be a hidden and sinister agenda based on racial disparity in the policies and framework of this law passed in 1986 and 1988 by the U.S. Congress. Members of Congress have failed to listen to Judges who feel that the sentencing guidelines are 'harsh' and 'ridiculous' as well as other critics who have noted the negative impacts to community, families, and society-at-large resulting from the mandatory sentencing guidelines. Furthermore, the policy has been shown to be ineffective and one that has ultimately failed in its attempt to target high-level drug dealers and instead has resulted in the disproportionate incarceration of poor black African-American individuals. Added to this is the privatization of prisons in the United States, which has led to profiteering in the operation of prisons and has led to a push to fill the newly constructed sprawling facilities in order to fund the operation and justify the existence of these prisons. In attempting to understand how policies are defined and implemented the decision-making model proposed by Lapierre (1973) is in part reproduced in the following figure.

Decision-Making Model

Source: LaPierrre (1973)

The work of Bassand and Ryser entitled: "The Implementation of Public Policy Concerning Space a General Outline" states that while not appearing in the diagram of Lapierre, "he makes it clear in his study that decision-making does not solely imply an exchange of information and views, but includes, at every stage of the process, power relations that require the sue of the concepts of class relations and political culture." (Bassand and Ryser, 1980) Additionally stated is that "a number of recent studies show that implementation is as complex and perhaps even more than the preparation of the decision. Implementation is not only the rational execution of the decision by political independent public administrations, but always implies political dependent public administrations, but always implies political processes, power relations, filtering reduction and competition processes as well as some other political decisions." (Bassand and Ryser, 1980) Public policy therefore "implies a system of actors, who start actions that either follow and complement each other, or are opposed and contradict each other. These actors and this system influence all levels of the political system." (Bassand and Ryser, 1980) Three criteria are said to exist in the realm of public policy and those being: (1) objectives; (2) goals; and (3) means. (Bassand and Ryser, 1980) Within this realm there are three types of public policies including: (1) Social policies - these contribute to the improvement of social justice and to the elimination of injustice of all types. (2) Socio-economic regulation policies - these tend to support or to re-equalibrate the mechanisms of a failing market; and (3) Civic policies - these relate to the organization, reformation or revolutionizing of the political system. (Bassand and Ryser, 1980) the goals and objectives of public policy may be achieved by several means, which include: (1) Statutory policies - geared toward the preparation of norms, laws, or rules to guide or channel the practices of private and public actors; (2) Persuasive policies - these attempt the modification of the practices of actors through persuasion, propaganda, or publicity; (3)Incitement policies - financial incentives are used in meeting the objective that are mainly for private actors; and (4) Voluntary policies - these provide the authorities with the necessary means to act instead of private actors. (Bassand and Ryser, 1980) it is stated that: "The definition of the objectives and goals is of crucial importance, because both orientate the dynamics of policy and both are criteria for evaluation of the policy, even though both might change. In short, the objective of the policy is directly linked to its means..." (Bassand and Ryser, 1980) Bassand and Ryser state that: "...there is an autonomous system of action at the level of any given public policy, but not at its various stages." (1980) Each of these stages is characterized by "certain types of actors." (Bassand and Ryser, 1980) Actor is defined as a "unity of action by an individual or group, that is defined by at least three interdependent and irreducible parameters: identity, project and power." (Bassand and Ryser, 1980) in order to understand these actions it is necessary to understand "the relation between an objective established by an actor and the resources he uses to attain it; both presuppose interests and values." (Bassand and Ryser, 1980) in the study of public policies Bassand and Ryser state that three systems of action are examined: (1) the social relations; (2) the State; and (3) the public policy that is concerned. Each of these "overlap the actors identity and projects will vary considerably in strength, intensity and clarity according to the position in systems of action define the levels of autonomy and anomy of the actors." (Bassand and Ryser, 1980) Two aspects of the actors are clarified in Bassand and Ryser which are: (1) the actor is continually looking (obviously with unequal success for an interpretation of his actions and relations); and (2) it is very often when the actor is in action that he defines his identity and his project, which defines the rules for his future behavior." (Bassand and Ryser, 1980) There are seven types of actors that intervene in the implementation of public policy as follows: (1) Politicians - those elected for legislative and executive bodies particularly; (2) Public executors - public administration; (3) Private executors - private executors who carry out public policy; (4) Controllers - notably judicial and parliamentary bodies yet also administration; (5) Addressee - actors who explicitly and directly are concerned positively or negatively; (6) Rejected or taken-for-granted - actors who are forgotten by public policy or who suffer from its perverse effects; and (7) Experts - actors who advise the preceding categories and who evaluate a policy. (Bassand and Ryser, 1980)

In other words, those who distribute the funds or means, hold the power to approve of, define, and implement the policy and those who are recipients or in need of the provisions of the policy either experience negative or positive impacts, while those who have not been addressed in the policy implications experience only negative impacts and ultimately those who put the policies in place or who advised the policy decision-making are those who traditionally evaluate the policy outcomes. This problem is clearly defined in the privatization of the prison systems in the United States, which has become a commercial for-profit business which can only realize profits through filling up the prison's to full capacity and then receiving funding from the government for housing and feeding prisoners. In other words, to clear out low-level drug offenders from the prison system would mean loss of millions of dollars in funding for the corporations who own and operate prisons in the United States.