Justice Department Finally Ends Racist Crack/Powder Cocaine Sentencing Disparity

Criminal Justice System
Justice Department Finally Ends Racist Crack/Powder Cocaine Sentencing Disparity
Photo: Senate Democrats, 2016, Creative Commons License 2.0

Back in 1986, then-Senator Joe Biden crafted a piece of bipartisan legislation known as the 1986 Anti-Drug Abuse Act, which passed the House 392-16 (one of those anti-votes notably coming from Congressman John Conyers), passed the Senate 98-2 and was then signed into law by Ronald Reagan as part of the nation's notoriously successful War on Drugs.

Like many pieces of bipartisan legislation, it was the worst of all worlds. It was very bad. It increased sentences across the board for practically all federal drug crimes, which did not curb drug abuse so much as it led to explosive growth in our prison population (along with many other reforms around that time).

One of the worst parts of the Act was the blatantly racist sentencing disparities between powder cocaine and crack cocaine. While they are literally the exact same drug, the law mandated five years in prison for 5g of crack cocaine, largely used by Black people and all poor people, while one would need 100 times that amount of powder cocaine, more frequently used by rich white yuppies, to get the same sentence. This led to an unprecedented rise in the number of Black people doing time in federal prisons and no similar rise in the number of white people there. While the disparity had been somewhat reduced over the years (from a 1-100 ratio to 1-20), it's still pretty bad.

Now, under the Biden Administration, the United States Justice Department is now, after 36 years, finally putting an end to that bullshit.

Via The New York Times:

“The crack/powder disparity in sentencing has no basis in science, furthers no law enforcement purposes and drives unwarranted racial disparities in our criminal justice system,” the Justice Department said in a statement, reflecting testimony Mr. Garland has given before Congress.

The move reflects an informal policy the department has pursued during the Biden administration. It comes as President Biden’s efforts to pass legislation erasing the disparity have been blocked by congressional Republicans.

The new rules were a long time in coming. In early 2021, soon after Mr. Garland took over, prosecutors were told to expect a memo that would allow them to forgo harsh mandatory minimum sentences, including those for nonviolent drug dealers who had sold crack rather than cocaine.

Mr. Garland said the new charging instructions reflected his larger commitment to addressing documented racial disparities in the application of federal mandatory minimum sentences, many of them passed during the crime wave of the 1980s and 1990s.

The new guidance also covers sentences sought in plea agreements, the most common mode of sentencing in the criminal justice system.

Good. Unfortunately, as of now, it will not be retroactively applied. Hopefully that will come soon.

You know, you can't say, with something like this "See! Goes to show you that you can always undo your own mistakes and make it right!" because, you know, the effect this legislation had on people and their families can't be fixed so simply. What it does show, however, is that it's still better to fix them than it is to put one's foot down and say "No, I am a good person and therefore cannot ever have been wrong, let's keep this going forever." I can't imagine Biden feels very good about the 1986 legislation, particularly in light of his own son's issues with crack cocaine, but he's working to fix it and that's a good thing.

I want to be clear, however, that this law was not something everyone thought was okay back then because it was the 1980s and 90s and everyone was scared of the "crack epidemic" and didn't know any better because they were all so innocent then. People were well aware that it was racist. Jesse Jackson and Al Sharpton talked about it all the time. There were marches and protests and it was a very big deal.

"As one who led marches in the 1990s about this unfair and racially tinged decision to prosecute and sentence people differently between crack cocaine and loose cocaine," Sharpton said in a statement, "I was more than pleased when I was informed by the Justice Department today that they will no longer use those procedures. This was not only a major prosecutorial and sentencing decision - it is a major civil rights decision. The racial disparities of this policy have ruined homes and futures for over a generation. I salute Attorney General Garland for taking this major step toward equality and fairness."

This is great, I'm so glad that this is finally happening, but there are a lot of next steps here. If it were up to me I'd end all drug laws and institute reparations for people and families affected by them. That's not going to happen, I realize, but people are waking up to the idea that the drug war was a bad idea. An ACLU poll found that 65 percent of Americans think the War on Drugs was a mistake and 66 percent of us do not want people in prison for possession anymore and want them to get help instead. Which, you know, makes a lot more sense than what we have been doing.

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Robyn Pennacchia

Robyn Pennacchia is a brilliant, fabulously talented and visually stunning angel of a human being, who shrugged off what she is pretty sure would have been a Tony Award-winning career in musical theater in order to write about stuff on the internet. Follow her on Twitter at @RobynElyse


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