A lot depends on the future course of the ‘epidemic’ (some experts dispute whether it really is one), but it will be a interesting natural experiment to see whether the political system so casually tolerates, over the course of decades, the imprisonment of non-Hispanic whites at rates comparable to those it has tolerated among nonwhites under the provisions of the 1986 Act.

Won’t be tolerated. As you know, criminals are individuals with darker skin than White. White and Black drug users aren’t treated the same. Here, even if nonviolent, Black users are more likely to be also charged with “resisting arrest” which disqualifies them from diversion programs including Proposition 36, than are White users even if the arrests are similar. Black drug users and dealers are more likely to be seen as involved in gangs when they can be individuals or in gangs, whereas meth users and dealers are seen as being more individuals which means no gang enhancements to interfer with diversion for users. This is even though certain White gang members and even Latino gangs deal in meth. The Latinos are treated more as a gang involved in it than Whites, but then White gangs are most often referred to as “groups” rather than “gangs” even when they satisfy the terms of the legal definition.

As Radfem notes, it is a myth that meth production is only possible in remote areas. Most of the mom-and-pop labs seized in recent years have been in populated areas. In any case, the point is increasingly moot, because recent federal restrictions on the production and sale of meth’s precursor chemicals (ephedrine, pseudoephedrine) have reduced the amount of it produced in local table-top labs and increasingly pushed production offshore (in the process increasing its average purity and integrating it into established distribution networks for cocaine, marijuana, and heroin).

Amphetamines were traditionally deemed to be less dangerous than cocaine, and the federal government was slow to react to the current meth epidemic (for a disputed combination of reasons, including the traditional western regional concentration of the problem, DEA’s perseveration on other priorities, such as marijuana, and, according to some reasonable people, users’ less threatening racial complexion), but the last Congress (under the bipartisan leadership of Rep. Souder and Sen. Feinstein) did enact tough new anti-meth legislation. (Without disputing the nastiness of either drug, current Congressional attitudes toward meth reproduce in more muted form some of the hysteria that accompanied the 1986 Act, and can be expected to produce of the same unanticipated negative effects.) While meth arguably is still treated less harshly than crack, the combination of increasing meth use and the new penalties will undoubtedly increase the number of non-Hispanic whites serving serious prison time. A lot depends on the future course of the ‘epidemic’ (some experts dispute whether it really is one), but it will be a interesting natural experiment to see whether the political system so casually tolerates, over the course of decades, the imprisonment of non-Hispanic whites at rates comparable to those it has tolerated among nonwhites under the provisions of the 1986 Act.

One more thing: w/o denying that stimulants can increase the propensity for violence, it’s important to remember that much of the violence associated with illegal drugs is an artifact of their illegality. The same was true of alcohol during Prohibition, and although nobody now imagines that marijuana (or, for that matter, heroin) intrinsically causes violence, the illegal trade in these drugs is notably marked by violence.

And yes, they do stink. And they can be dangerous both in terms of explosions and fires during production and can cause serious health problems for those who live in dwellings after the lab is gone. Decontaminating a meth house is very expensive and laborous.

Meth is um, “lightening the complexion” as you call it of courtrooms here in terms of drug diversion for those who possess it but don’t deal in it perhaps, but I’m not sure it’s lightening up the prison population.

I never had a family of neighbors who were shot at while eating dinner by anyone who had anything to do with a marijuana dispensary like I have with anyone involved in meth.

Oh yeah - meth.

Since we’re discussing “The Prison System: Jim Crow’s Modern Face,” I’ll be interested to learn how meth affects this assessment. As I understand it, meth labs stink. Literally. So to make meth, people have needed a lot of spaced. This has led to meth being the drug of choice in rural (read white) areas. Is meth lightening the complexion of our prison populations? And if so, what does this say about the Jim Crow thesis?

The demand for “more police” and the demand for equality in sentencing are not contrary. I don’t know if there are any polls that address this specific question, so there’s no way to resolve this. But I really don’t think it’s true that most Black people favor 100/1 sentencing disparities between one form of cocaine and another, that have the effect of protecting white people from the punishments blacks are routinely subjected to.

I agree with the first statement. Here, there’s no support for the disparities in sentencing laws even though there’s support for locking up drug dealers.

So violence attracts the police, not dealing? That depends on the area, city or town perhaps. Right now, the focus is on busting marijuana medical dispensaries with the feds. How much violence is associated with these?

Most people including those in areas where violence is a problem wish that same amount of attention was spent on meth dealers and/or producers. There’s much more violence associated with meth dealing and even meth users, perhaps at least here more than was associated with crack cocaine(where most of the violence is gang-related), yet the latter gets more attention than the former and is treated more severely all around.

There’s a lot of substinance crime associated with meth. Yet, it’s the marijuana dispensaries getting the attention and resources. They are seen as the big threat.

I have to say, I never had a family of neighbors who were shot at while eating dinner by anyone who had anything to do with a marijuana dispensary like I have with anyone involved in meth.

I am surprised to hear the CBC would have been involved with the disparities in sentencing as well.

Sterling’s quoted reference to the role of Johnny “Jehru” St. Valentine Brown, a DC police detective, points to an especially grizly irony. He refers to the influence of Brown’s “expert opinion” that a person who sells 20 grams of crack cocaine is (in some undefined sense) as “serious” a factor in the drug market as a person who sells 50 times as much powder cocaine. That still gets us only halfway to the 100:1 ratio, but according to Sterling, Brown’s testimony was part of the context in which the Act was drafted.

But there was a problem, or three. There was no empirical basis for Brown’s 50:1 ratio, he himself was a thoroughgoing charlatan & liar, & it’s unclear how much any empirical evidence, real or fabricated, could have influenced Congress, which clearly was driven by its own political imperatives. As Sterling recalled elsewhere:

“My reliance on Brown’s experience, authority & qualifications were a mistake that only became clear in recent years. Brown’s expertise was utterly unchallenged until 1999. Two civil attorneys had been appointed to represent two drug defendants in the D.C. court. Peter Grenier & Saul Singer did what they always did when facing an expert witness, they did the investigation to check out his credentials. Unlike hundreds of criminal defense lawyers who had prepared to cross examine Brown, these attorneys discovered that Brown was not, as he usually testified, a graduate of the Howard University School of Pharmacy. Brown was not, as he usually testified, a licensed pharmacist. He had not served as a homicide detective, as he usually testified. Brown had testified in something like 4000 narcotics cases, & possibly lied in every one of them.

“Did Brown lie to me about the quantities of drugs that were indicative of high-level or mid-level drug traffickers? Perhaps, but it probably didn’t matter. Members of Congress were intent on using their own judgments about drugs, even though they lacked any real knowledge of the drug market or any fluency with the metric system. Certainly the quantities that Congress used as the basis to trigger long mandatories were not indicative of high level trafficking.”

Eric E Sterling, “Tales of a Recovering Drug Warrior,” in Under the Influence: The Disinformation Guide to Drugs, ed. Preston Peet, pp. 80-94 (NY 2004), at p. 92.

Brown was convicted in 2000 in federal court of perjury for lying under oath about his credentials as a drug expert. He had routinely falsely claimed in court to be a board-certified pharmacist & had a doctorate in pharmacology. The following year, he was also convicted of (crudely) forging letters of commendation from various public officials, which he submitted to the court before sentencing on the perjury charge. But his convictions & imprisonment didn’t undo the damage his fraudulent testimony helped set in motion by encouraging Congress, to whatever degree, to consign untold numbers of low-level porch-step dealers & ordinary non-dealing users as if they were high-level trafficking kingpins. (Ordinary non-dealing addicts routinely carry enough of the stuff for their own use – a few days’ worth – to trigger the threshold, & not infrequently are falsely arrested, convicted, & sentenced for intent to distribute. One can only wonder how many “ordinary citizens” in DC, where I live & Detective Brown worked, were convicted & sentenced to long terms in part on the basis of his false testimony.)

Robert’s “street intuition” (about which I’d love to hear more) notwithstanding, there’s absolutely no evidence either that the 100:1 ratio “might actually be a reasonable tradeoff” or that the 20:1 ratio “more closely fit[s]” what he calls “the dealer-magnitude equation.” His idle & ill-informed speculation might be more amusing if so many lives hadn’t been wrecked by this unjust law.

Drydock is right about O’Neill’s role. For further background, see:

http://blogs.salon.com/0002762/stories/2006/06/18/lenBiasTheDeathThatUshered.html
http://www.pbs.org/wgbh/pages/frontline/shows/snitch/procon/sterling.html

Alas, the atmosphere of ignorance, charlatanry & hysteria described in these sources continues to shape drug law & policy to this day.

1. As I understand it the congressional black caucus had a big hand in writing the crack laws….

Drydock, that’s the first time I’ve heard that claim made. Do you know what the source of it is?

Didn’t find any source for that, but according to Answers.com, “[f]ully half of the African-American representatives in Congress voted for the act, many of them emphasizing the harm that crack use was causing to black communities.” As authority, Answers.com cites Randall Kennedy’s Race, Crime, and the Law (1997), Michael Massing’s The Fix (1998) and David F. Musto’s The American Disease: Origins of Narcotics Control (3d ed. 1999).

You needn’t restrict yourself to idle speculation about the Act. If you’re really interested in the thinking of the people who passed it, you might begin by consulting the usual sources for the legislative history.

Perhaps, although the Second Circuit Court of Appeals suggests that may not be very fruitful.

[T]he Second Circuit in United States v. Castillo, 460 F.3d 337 (2nd Cir. 2006) …. observed “the speed with which the 1986 Act moved through Congress….” Id. See also: United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy, February 1995 (“1995 Report”), at 116-17. The speed of enactment left no legislative trail relative to Congressional intent, especially for the 100:1 ratio – except for scattered statements by various lawmakers. Lacking any real “on-the-record” Congressional intent for clarification, the U.S. Sentencing Commission in its 1995 Report adopted “five congressional conclusions” to determine legal basis for the “100:1 crack/powder ratio” …:

• The “extraordinarily addictive nature of crack cocaine, both in relative and absolute terms;
• The higher correction between crack cocaine use and the commission of other serious crimes than with other drugs;
• The ‘especially perilous” physiological effects of crack cocaine;
• The sense that “young people were particularly prone to using crack cocaine”; and
• The increasingly widespread use of crack cocaine because of its high potency, low cost, and ease of manufacture, transportation, and administration.

Id., 1995 Report, at 118; United States v. Castillo, supra, at 345.

But see testimony of Eric Sterling, Assistant Counsel to the House Subcommittees on Crime and Criminal Justice when the bill was drafted:

How did the 100 to 1 ratio of 500 grams of powder to 5 grams of crack come about? The suggestion that this ratio was based on a Congressional finding or understanding that crack was a “black drug” and powder cocaine was a “white drug” is false. Congress may have believed that the crack problem in 1986 was particularly acute in poor black urban neighborhoods, but that did not drive the selection of the quantity triggers.

Responding to the inflammatory idea that the ratio was designed with race in mind, an alternative narrative has been constructed – equally unfounded – that Congress determined that crack was much more dangerous than powder cocaine and therefore more deserving of greater punishment than powder cocaine on a weight basis. This is completely untrue as well.

I was at the table in 1986 when this bill was being drafted. The Subcommittee on Crime was attempting to apply higher punishments in the mandatory sentences strictly on the basis of the more significant role of the offender in the drug trafficking pipeline. Higher-level traffickers were to be punished more severely. Based largely on information that I obtained from an expert consultant to the Select Committee on Narcotics Abuse and Control, a Metropolitan Police Department narcotics detective named Jehru St. Valentine Brown, the Subcommittee concluded that a trafficker in 20 grams of crack cocaine was trafficking at the same “serious” level in the marketplace as a trafficker in 1000 grams of powder cocaine. We believed a “major” trafficker could be identified if he trafficked in 100 grams of crack or 5 kilograms of powder cocaine. This is spelled out in the report of the Committee on the Judiciary (H. Rept. 99-845, Pt. 1, pp.16-18). Coincidentally, these both were a ratio of 50 to 1. There were no findings regarding addictiveness of crack, the prevalence of in utero cocaine exposure (i.e., “crack babies”), or violence in the drug market, or other measures of harmfulness or dangerousness of crack vis a vis powder cocaine.

It’s an additional matter – which occupied a smaller part of the thread – that you think claims & inferences like yours played a role in the passage of the 1986 Act. It’s not unheard of that mistaken claims & false inferences influence new laws, but having gone to work on the Hill a year after the Act passed, & retaining some memory of the way things work there, I’m dubious that your particular claims & inferences played much role in its passage. Congress is a political institution, & in 1986 was in the midst of a moral panic over crack cocaine, rap music, black gangs & rising crime – a perfect confluence of wedge issues, joined together in a single syndrome –, & the (weakened & half-demoralized) Democratic majority was flailing around for a way to blunt Republican exploitation of the issue. (Remember Lee Atwater, Just Say No, Len Bias & Willie Horton?) So rational policy analysis & measured consideration of the social consequences of legislation played an even more limited role than usual in the passage of the Act. Indifference to rational considerations, not some collective failure of rationality, accounts for its gross defects. In this it’s like a lot of crime legislation.

You needn’t restrict yourself to idle speculation about the Act. If you’re really interested in the thinking of the people who passed it, you might begin by consulting the usual sources for the legislative history.

Personally, I’m a fairly hard-core libertarian. I’m so hardcore that I even believe in letting people do things that I don’t happen to personally approve of. ;)

You offer no reason to believe that people convicted of possessing 5 grams of crack cocaine are on average as “destructive to society” or its “most vulnerable members” as people convicted of possessing 100 times as much powder cocaine. Nor is the crack/powder distinction a useful proxy for some other criterion that identifies harms of such disparate orders of magnitude.

Nor – even on narrowly consequentialist assumptions and accepting your avowed indifference to issues of justice – is that even the relevant question. When evaluating alternative sentencing regimes, the relevant question is the total consequences of the enacted policies, not just the (alleged) consequences of individual instances of the offenses being punished. If, for example, current policy has little effect on the availability and use of cocaine (in either form and in any community), and itself imposes large harms on society, above all on its most vulnerable members, then casual, ill-grounded speculation about how much more dangerous one form of cocaine is than another is an especially poor guide to policy. You’re attempting to do policy analysis without accurately counting either all the costs or the benefits of the alternatives.

Current sentencing guidelines do indeed “send a message,” which is inscribed on the bodies of untold numbers of the most vulnerable members of society – not only the men and women who they exile to our society’s burgeoning carceral archipelago, but their families, partners, children, and whole communities. These consequences, which you pass over so casually, are something much worse than just “a terrible message to send.”

Amp is right about the Congressional politics of sentencing guidelines. Liberal Democrats & members of the CBC have introduced legislation to eliminate the powder/crack disparity in every session of every Congress since the Anti-Drug Abuse Act of 1986 was enacted, without success. And conservative Republicans, including Sen. Hatch, have consistently been among the most obdurate obstacles to reform. His current proposed half-measure, whatever his ulterior purpose, is a modest improvement, but does nothing to redeem the untold lives that have been diminished during (and partly as a result of) his two-decade long history of demagogy in defense of this indefensible law.

The only reason some republicans are pushing a racial disparity of “only” 20 to 1 now is that they’re worried the current 100/1 ratio won’t be sustainable if liberal Democrats gain enough power in 2008 or 2010. They’re hoping that a merely outrageous 20/1 disparity will be easier to defend than an utterly insane 100/1 disparity. (Note that I say “liberal Democrats”; I suspect many centrist Democrats would be just as racist on this issue as the Republicans are).

I think that’s inaccurate. The trigger for a certain mandatory minimum sentence is 100 times lower for crack than for powder. That’s not the same thing as blacks being punished 100 times as much; it’s not like you get 1 year for having $5 worth of powder and 100 years for having $5 worth of rock.

From this article:

Current law maintains a 100:1 powder-to-crack ratio, which means that an offender receives the same five-year mandatory prison sentence for possession of either 5 grams of crack (10-50 doses) or 500 grams of powder (2,500-5,000 doses).

So basically to avoid the five-year minimum, you can’t have more than, say, $50 to $250 worth of crack on you, but you can get away with having $5000 to $25000 worth of powder cocaine. It amounts to making it harder to be a low-level crack dealer (or serious user) than to be a low-level cocaine dealer (or serious user).

Is that really such a terrible message to send? Which of those two populations are most destructive to society? To society’s most vulnerable members?

If it were white suburbanites who were being treated this way just because that’s how things worked out, the system wouldn’t find that acceptable. It would get changed. It would get fixed.

Broadly, I agree.

(OK, in fairness, Joe Biden (D) favors the bill. It’s bipartisans for drug leniency.)

I’ve added bold in the bit that best supports what I’ve been saying, but left in place other stuff that supports what other folks have said.

To some extent, racial disproportions in drug arrests reflect demographic factors. Drug law enforcement is concentrated in large urban areas. Illicit drug use is also higher in large metropolitan areas.90 Since more blacks, proportionately, live in these areas than whites, black drug offenders are at greater risk of arrest than white offenders.91 But within metropolitan areas, politics and law enforcement priorities have determined how drug arrests would be distributed.

Within urban areas, the “major fronts” in the drug wars have been low income minority neighborhoods. With the spread of crack in the early 1980s, these neighborhoods suffered from the disorder, nuisance, and assaults on the quality of life that accompanied increased drug dealing on the streets as well as the crime and violence that accompanied the development of crack distribution systems. Dismayed residents in those neighborhoods pressed the police and public officials to “do something.” But the residents’ response was more than matched by the censure, outrage, and concern from outsiders that was fanned by incessant and frequently sensationalist media stories about crack, and by politicians seeking electoral advantage by being “tough on crime.”92

Although crack was the least used of all illicit drugs in the U.S., and although more whites used illicit drugs than blacks (see Table 17, above), the “war on drugs” has been targeted most notoriously at the possession and sale of crack cocaine by blacks. Crack cocaine in black neighborhoods became a lightning rod for a complicated and deep-rooted set of racial, class, political, social, and moral dynamics.93 To the extent that the white majority in the U.S. identified both crime and drugs with the “dangerous classes” — i.e., poor urban blacks — it was easier to endorse, or at least acquiesce in, punitive penal policies that might have been rejected if members of their own families and communities were being sent to prison at comparable rates.94

Tactical considerations also encouraged the concentration of anti-drug resources in disadvantaged minority neighborhoods and the consequent disproportionate number of black drug offender arrests. Police departments point to the number of arrests as a measure of effectiveness. The circumstances of life and the public nature of drug transactions in low income urban neighborhoods make arrests far easier there than in other neighborhoods.95 In poor black neighborhoods, drug transactions are more likely to be conducted on the streets, in public, and between strangers, whereas in white neighborhoods — working class through upper class — drugs are more likely to be sold indoors, in bars, clubs, and private homes. “[I]n poor urban minority neighborhoods, it is easier for undercover narcotics officers to penetrate networks of friends and acquaintances than in more stable and closely knit working-class and middle-class neighborhoods. The stranger buying drugs on the urban street corner or in an alley, or overcoming local suspicions by hanging around for a few days and then buying drugs, was commonplace. Police undercover operations can succeed [in working and middle-class neighborhoods] but they take longer, cost more, and are less likely to succeed.”96

Racial profiling — the police practice of stopping, questioning, and searching potential criminal suspects in vehicles or on the street based solely on their racial appearance — has also contributed to racially disproportionate drug arrests, although there are no reliable estimates of the number. In many locales, black drivers are disproportionately stopped for minor traffic offenses and then searched.97 Similarly, blacks and other minorities have been disproportionately targeted in “stop and frisk” operations in which police temporarily detain, question, and pat down pedestrians suspected of criminal activity. In New York City, for example, between January 1998 and March 1999, police officers made far more stop and frisks in minority neighborhoods; even within neighborhoods with primarily white populations, the majority of the people stopped were black or Hispanic.98

Other factors have also been important in increasing the relative rate at which black drug offenders are arrested compared to whites. For example, low income purchasers of cocaine buy the drug in the cheap form of single or several hits of crack. They must engage in far more illegal transactions to satisfy their desire for drugs than middle or upper class consumers of powder cocaine who have the resources to buy larger and longer lasting supplies. The greater frequency of purchases and sales may well affect susceptibility to arrest.

So not, not all the elements that go into the huge disparity in prison time for using cocaine are directly motivated by racism. I certainly acknowledge that. But racism is a part of it, both indirectly — as part of the reason black people are disproportionately in poor neighborhoods, for example — and in a “why didn’t the dog bark?” way.

If it were white suburbanites who were being treated this way just because that’s how things worked out, the system wouldn’t find that acceptable. It would get changed. It would get fixed. In contrast, a huge inequality of sentencing that just happens to mean that blacks are punished 100 times as much as whites for essentially the same crime is something that our system accepts and that people make excuses for.

1. As I understand it the congressional black caucus had a big hand in writing the crack laws. That doesn´t make them legit, they are horrible laws, but leaving these kind of facts skews “our” understanding of the dynamics of how and why things happen.

Drydock, that’s the first time I’ve heard that claim made. Do you know what the source of it is?

I frankly doubt that’s true, but I also think it’s besides the point. What’s important is not just the origins of the laws, but how and why they remain in place. And the 100/1 disparity between punishing black and white cocaine users has remained in place over the repeated objections of the Congressional Black Caucus. See this article from CQ, for example:

African-American lawmakers and liberal groups have long decried the fact that it takes 100 times more powdered cocaine than crack to trigger lengthy mandatory minimum prison sentences, a disparity that disproportionately affects minority defendants. A combination of factors — including the Democratic takeover of Congress and growing Republican interest in alternatives to lengthy prison sentences — is helping create momentum for narrowing the differential first enacted 21 years ago….

The sticking point may be on the House side, where members of the Congressional Black Caucus, including Robert C. Scott, D-Va., chairman of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, have long insisted that the triggers for crack and cocaine be equalized. “The facts haven’t changed,” Scott said. “There’s no justification for any differential.” Charles B. Rangel, D-N.Y., has introduced a bill (HR 460) that would make them equal.

If the congressional black caucus’ constituents are really against changing the racist effects of crack cocaine laws, then that hasn’t had much of an effect on what the members of the congressional black caucus are saying about sentencing disparities.

Back to quoting Drydock’s comment:

Undoing these laws means getting primarily the black community to support it, however there is absolutely no urban momentum for changing drug law policy. If Oakland is an example (like I mentioned above), if anything there is a demand for more police and that´s in probably one of the most liberal cities in the country (Barbara Lee is our representative).

The demand for “more police” and the demand for equality in sentencing are not contrary. I don’t know if there are any polls that address this specific question, so there’s no way to resolve this. But I really don’t think it’s true that most Black people favor 100/1 sentencing disparities between one form of cocaine and another, that have the effect of protecting white people from the punishments blacks are routinely subjected to.

2. Comparing suburban and urban drug dealing is a bit of comparing apples to oranges. There is a lot more violence in urban street dealing whereas in the suburbs must dealing is behind closed doors. Violence attracts the police not dealing in itself.