One in Nine: Behind a Racially Discriminatory Sentencing Policy

by Lisa Swanson

During the last week in February, the Pew Center on the States released a report entitled One in 100: Behind Bars in America 2008. “For the first time,” the report stated, “More than one in every 100 adults is now confined in an American jail or prison.”

Demographic analysis of the prison populations revealed enormous racial disparities: while the incarceration rate for white adult men was one in 106, and one in 36 for Hispanic adult men, the incarceration rate for black men was found to be one in fifteen. Among black males ages 20 to 34, the incarceration rate jumps to one in every nine. Incarceration rates for women were similarly slanted, with black women ages 35 to 39 three and a half times more likely to be in jail than white women of the same age.

Seeing these numbers, a reader might be led to conclude that black males commit more crimes than Hispanic and white males. Or, a more thoughtful reader may believe that such high incarceration rates are primarily the result of poverty. After all, according to the most recent US Census, blacks have the highest poverty rate at 24%. Both of these responses neglect a very important piece of the puzzle.

The truth is that the United States criminal justice system often discriminates against black people at multiple levels. Take, for example, the infamous disparity between crack cocaine and powder cocaine sentencing, which has been responsible for disproportionately punishing people of color for over twenty years.

In the mid-1980s, crack began to appear in American cities. A new form of cocaine manufactured from powder, crack was sold in hard rocks which could be heated and smoked. Crack cocaine was more generally affordable than powder cocaine, and spread rapidly through urban areas.

As crack gained popularity, so did rumors that crack cocaine was stronger and more dangerous than powder cocaine. Crack was believed to be instantly addictive, incite violent behavior, and cause women to give birth to “crack babies”—infants who suffered from premature delivery, smaller heads, low birth weights, decreased motor abilities, and behavioral difficulties. Two decades later, these myths have been debunked. But at the time, many Americans were anxious about crack’s perceived ultra-harmful effects on society.

In June of 1986, University of Maryland college basketball player Len Bias died from a cocaine overdose within a day of being recruited by the Boston Celtics. Bias’s tragic death sparked a public drug panic, and Congress reacted by passing the Anti-Drug Abuse Act of 1986. Included in the Anti-Drug Abuse Act were mandatory minimum sentences for possession of crack and powder cocaine. Possession of five grams of crack or possession of 500 grams of powder carried a mandatory minimum sentence of five years. Possession of 50 grams of crack or possession of 5000 grams of powder carried a ten year mandatory minimum.

These mandatory minimums set up a 100 to 1 disparity between the two drugs, although the amounts packed nearly the same number of doses gram for gram and had identical biological effects. There was a major difference, however, in the manufacture and distribution of crack and powder cocaine: powder tended to be more costly, more suburban, and more popular among white drug users, while crack tended to be more affordable, concentrated in urban areas, and more popular among black drug users. These differences were compounded as police efforts to combat drug use were often focused on low-income urban areas and communities of color. In addition, racial profiling contributed to the likelihood that drug users of color would be discovered more frequently than white drug users.

The differing social and economic implications of cocaine’s variant forms have been devastating to the black community. According to the Interfaith Drug Policy Initiative, African-Americans make up only 15% of the country’s drug users—but they make up 37% of those arrested for drug violations, 59% of those convicted, and 74% of those sentenced to prison for a drug offense. When data from before and after 1986 is compared, it’s clear that mandatory minimums are responsible for a shift in prison demographics. The Drug Policy Alliance has stated that in 1986, the average federal drug sentence for African Americans was 11 percent higher than for whites. By 1990, the average federal drug sentence for African Americans was 49 percent higher.

Racialized sentencing disparities have long been present in the United States criminal justice system. In 1984, Congress created the U.S. Sentencing Commission, an independent agency of the Judicial Branch which was intended to eliminate racial disparities. The job of the US Sentencing Commission was to set “sentencing guidelines,” the official ranges of appropriate correction time for crimes. In theory, these guidelines would prevent judges from handing out arbitrary sentences. But since Congress passed the Anti-Drug Abuse Act a mere two years later, Congress’s mandatory minimums have trumped any guidelines set by the US Sentencing Commission.

The Sentencing Commission has repeatedly advocated for the reduction or elimination of the crack vs. powder sentencing disparity. In 2004, the Sentencing Commission stated that revising the mandatory minimum for possession of crack would do more to reduce the racial sentencing gap “than any other single policy change.” And in 2007, the U.S. Sentencing Commission lowered the average sentence for crack cocaine offenders by fifteen months.

Despite recent action, only Congress can change the mandatory minimums. Currently, the House is deliberating among four bills that address the disparity, and three similar bills have been submitted in the Senate. Drug War Chronicle has reported that Bill Piper, national affairs director for the Drug Policy Alliance, is optimistic about the chances of a revised sentencing policy. But whether or not Congress will be able to reach a consensus during this session remains to be seen.

In the meantime, should you happen upon a statistic about the disproportionate number of young black men in jail, remind yourself and those around you of the real reason for the high percentage of incarcerated black men and women—systemically racist policies at work in our criminal justice system.