The extraordinary severity of the imposed penalties and the troubling racial patterns of enforcement give rise to a special concern about the fairness of charging practices for crack offenses.
-- Justice Stevens, dissenting opinion
Slate had an article a few days ago on some attempts in Congress to reduce the disparity between the penalties for powder and crack cocaine. It is not out of the realm of possibility that even this Congress could decide to do something like this, since it recently loosened its strict rules respecting refusing student aid to those found guilty of drug offenses. Not that we should hold our breath -- drugs lead to the usual knee-jerk reactions, the drug "war" not too much different than the "war on terror," fighting in both cases often sharing similar ill-advised strategies.* And, the almost religious nature of the fights -- talk about jihads! -- only underlines the problems with loosening up the policies.
It is useful to note, however, that the reforms would not necessarily equalize the penalties. This is important since many of the comments in reply focused upon the racial implications of the penalties. Basically, the implication is that the only reason why there is a 100-1 ratio between penalties (one gram of crack equals one hundred grams of powder for sentencing purposes) was the color of the accused's skin. Putting aside the stronger argument that the size of the disparity was influenced by racial factors, it must be noted that the two are not the same. Crack is particularly dangerous because of its potency and compactness, more so than powder cocaine. Thus, when the guidelines were drawn, various black politicians and leaders supported them.
Such people grew less supportive over time; while others were wary from the get go. Drug laws simply are not equally enforced. This is not totally a question of racism -- as with prostitution, targeting sales over possession as well as high crime areas (again, not something residents are necessarily against) leads to inequitable results. Thus, women are generally targeted much less than their male johns. [I put aside the fact many prostitutes are men, often transsexuals.] And, only certain types at that -- more high class "whores" are less likely to be targeted. This "quasi-legal" industry is quite lucrative and non-enforcement basically decreases respect for strong policies against prostitution generally. People rightly see a lot of hypocrisy -- but not total hypocrisy. There are rational lines being drawn here, up to a point. Thus, the low rent prostitution more often targeted also might be a bigger public health threat.
All the same, the net result is rather inequitable. Such is also the case here as suggested by a lawsuit brought that led to the U.S. v. Armstrong ruling, which put a very high bar in proving discriminatory intent. Justice Stevens wrote the lone dissent, a warning bell. This is par for the course: the Supremes rejected a ruling pointing to the racial inequities in the death penalty and refused (this time without dissent) to recognize the problems with pretextual traffic stops (cars stopped for "legitimate" reasons, but in practice only "certain people" are stopped for such reasons). Though there are various exceptions, harkening back to Yick Wo v. Hopkins (Chinese laundries, 1886), the Supreme Court is wary of relying on disparate impact unless compelled by legislation (voting rights, employee discrimination). And, there is the infamous "toss grandma out of public housing if sonny used drugs even without her knowing about it" unanimous ruling.
The result has an ostrich head in the sand quality. The government has an obligation to provide equal protection of the law, and traditionally violated this demand in numerous ways. When it acts in such a way that certain groups, especially those traditionally discriminated against, are particularly burdened, warning bells should be set off. It is not necessarily illegitimate, but quite often it is. The message alone is problematic -- criminal justice is often as much symbolic as anything else. But, it is more -- if one group is punished significantly more than the other -- even (as facts suggest) when they do the same thing (here use crack) or take part in a behavior not that much worse (another form of illegal cocaine use) -- it is not equal protection of the laws. Strategically and constitutionally, this leads to problems. And, it shows up in various types of drug cases. Resulting in a "war on some drugs" or rather "some drug users."
[To look at the bigger picture, criminalization of marijuana underlines the point. Is it really that much more dangerous, if more dangerous at all, than alcohol and tobacco? Ditto its medical use and even cultivation of hemp products. Why was federal prohibition of one -- with much opposition to such invasion of "private" liberties and state discretion -- only deemed legitimate via a much maligned constitutional amendment? Forces of Habit: Drugs and The Making of The Modern World by David T. Courtwright could help you out there. Interesting book ... short too.]
Thus, the U.S. Sentencing Commission suggested Congress should equalize the punishments for the two substances, even though they in a vacuum are not equally dangerous. The reason was largely how the laws were carried out. Drug policy should recognize such real world effects. Congress rejected the advice. Clinton, on his way out (weenie), suggested the same thing. Ditto. Now, a few members of Congress are revisiting the question. Punishments for drugs are generally overall too high -- if enforced, powder cocaine laws are not slaps on the wrist. I'm no big fan of criminalization overall, though less vocal when things like crack are involved. But, severely reducing the disparity would be a good start, perhaps just one aspect of a realistic drug policy.
Well, dare to dream.
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* C-SPAN showed some campaign advertisements, including one by the RNC. It underlined that reality will not always cause any change in this area. Thus, the RNC suggests we should not vote for Democrats because they oppose interrogating terrorist suspects or listening in on their conversations. This is a result of apparent learning disabilities (connected to earlier drug use?) in which opposing torture/mistreatment or breaking FISA/constitutional demands in the promotion of these ends is understood to mean we oppose them totally.