Recent studies based on government data point to racially skewed sentences like those for possession or sale of crack cocaine and powder cocaine. For example, the Sentencing Projects recent report, A 25-Year Quagmire: The War on Drugs and Its Impact on American Society, notes that while both crack cocaine and powder cocaine have the same chemical composition, sentences for crack offenses are far heavier. A person convicted of selling five grams of crack, equivalent to the weight of two pennies, receives the same mandatory minimum sentence as someone who sells 500 grams of powder cocaine. Crack sentences fall most heavily on African-Americans, who are more likely to use this form of cocaine than whites. And because it is frequently sold in inner-city areas on street corners, police can more easily engage in buy and bust procedures. Powder cocaine, on the other hand, is usually more accessible in higher-income areas, where detection and arrest are less likely. The issue is thus also one of class.
The drug war has led to the incarceration of hundreds of thousands of young black men and women. Women are more likely than men to be found guilty of drug offenses, and in some ways they are more deeply affected. Two-thirds of the women in state and federal prisons are mothers of children under 18 years of age. Imprisonment means the removal of their offspring to foster care or the homes of relatives, who may already be overburdened with children of their own. After release, both men and women convicted of drug felonies are hampered in efforts to make a successful re-entry into society. Federal legislation in 1996 placed a lifetime ban on receiving food stamps and allows public housing authorities to bar those with drug convictions.
Lack of adequate drug treatment while incarcerated also compounds re-entry problems. Instead of rising, the rate of in-prison drug therapy has actually fallen since 1991, despite the fact that almost one in five people in state prisons on drug charges cite the need to pay for their drug habit as the reason for their offense. The U.S. bishops pointed out in their 2000 statement Responsibility, Rehabilitation and Restoration that locking up addicts without proper treatment and then returning them to the streets perpetuates a cycle of behavior that benefits neither the offender, nor society. Similarly, a RAND study argues that drug treatment, within as well as outside incarcerational settings, is more effective in controlling drug abuse and crime than expansion of the prison system.
Initiatives to reform drug laws are emerging. This year both Delaware and Rhode Island considered the repeal of mandatory minimum sentencing laws for drug crimes. Rhode Islands House and Senate passed legislation of this kind; and although the governor vetoed the measure, the fact that the states legislature backed it shows movement toward more sensible drug laws. At the federal level, too, the U.S. Sentencing Commission has recommended that sentencing guidelines be lowered for crack offenses because of implicit racial inequities. Its recommendations take effect Nov. 1 unless disapproved by Congress. This change, however, will not affect federal mandatory minimum sentencing policies, which only Congress can alter and which cry out for change because they bind the hands of magistrates seeking to administer justice fairly. But Congress can and should pass the pending bipartisan legislation aimed at removing the disparity between penalties for crack and powder cocaine. In the meantime, the Supreme Court is also addressing the disparity, though indirectly, by considering whether a federal judge has the right to impose a sentence for a crack offense that is less than what the guidelines call for.
With 80 percent of crack sentences imposed on African-Americans, racial disparities have reached glaring levels and point to the need for a changed policy. On the wider societal level, as the bishops note in their 2000 statement, it is the deep, underlying problems that need attention: lack of employment, poor housing, inadequate education and family disintegration in poor communities. Instead of unfairly harsh sentences for drug offenses, supportive initiatives for low-income communities and greater use of alternatives to incarceration should be the basis of an enlightened approach to criminal justice.