Crack vs. Powder Cocaine, Obama, and the Fair Sentencing Act

About a week and a half ago, President Obama signed the Fair Sentencing Act of 2010. This law reduces the difference in punishment meted out to those convicted of possessing crack cocaine versus powdered cocaine. The ratio before this bill was passed was 100:1 meaning that whatever your sentence for being in possession of crack cocaine, you would need to have possessed 100x the amount of powdered cocaine in order to receive the same sentence. The lesson was: don’t carry crack around, no matter what, you will get thrown in jail for a very long time. And inevitably, a lot of people did get thrown in jail, and a huge number of them were black due to the fact that crack, being cheaper to obtain, ravaged inner city communities, especially in the 80’s.

There’s not much to learn from the actual bill. Originally, the harsh sentences for crack were passed by Congress in 1986, and have been resisted ever since. The senate passed the bill UNANIMOUSLY (think how rare that is. I think one person voted against going to war against Afghanistan after 9/11 for example), and the house passed it by a voice vote. Basically, everyone came to realize that the 100:1 ratio was overkill, and all at once, there was support for change.

Still, why did it take so long (~25 years) for the sentence length to be toned down? Well, our culture of being tough on crime for one thing. More than anything, politicians try to avoid this label. Being weak on crime is like not supporting the troops; if the label sticks, you’re dead. So perhaps this is why there has been so little coverage of Obama’s signature of the bill and the massive bipartisan consensus that accompanied it?

Anyway, the big lesson for me here is that rhetoric has real effects on real people. We often talk about how the media in this country is sensationalized and that factions on both sides of the aisle bend the truth and express outrage to move the legislative direction in one way or another. Many people don’t hesitate to reach for the “soft on crime” label when it suits them, but this caused a dangerous overreaction that it took a long time to correct. Even though crime started falling appreciably in the 90s, the law was on the book for another 20 years!

A useful comparison is to defense spending. People CANNOT vote against various military projects without being labeled as soft on defense or not supporting the troops (think of the base closure act and how brilliant it had to be to overcome these sentiments). This stultifying climate of militarism has very bad consequences as well, and we have no one to blame except ourselves for failing to think carefully about the choices confronting us. Here’s an obvious example: we have a bajillion nuclear weapons, and its expensive to upkeep them, buy new ones, etc. Really though, we just need some nuclear weapons on submarines, where they will be most survivable. But try to get someone in congress to vote for a reduction. Good luck. When you think of arms reductions, you can almost hear the knee-jerk cries of “soft on defense” building in the wings.

In the crack case, these sorts of unthinking responses put a lot of people in jail for a really long period of time. Would it be so bad to just listen to an idea before labels are applied to it. That seems impossible in today’s world. My biggest political wish is that we abolish labels. They don’t tell us anything and never have. There are only two labels that are worth using in politics: good and bad. An idea is good or bad, a politician is good or bad. But to say someone is “liberal,” “hawkish,” “soft on crime,” tells us NOTHING.


3 Responses to “Crack vs. Powder Cocaine, Obama, and the Fair Sentencing Act”

  1. 1 GWDude
    August 13, 2010 at 3:40 am

    I think that all crime is like a cancer in your body. Do you want to keep and protect that cancer, or exterminate it?

    See http://wp.me/pZynB-7.

    • 2 questionbeggar
      August 13, 2010 at 4:17 am

      Well I think your short comment raises some complicated issues. (1) First, its important that criminal law not be arbitrary. Imagine a law that said murder was illegal except on days when Earth is aligned with Mercury (this is not to mock your point but just to give dramatic example of mine). This exception has nothing to do with justice. The sentencing laws were also deemed to be inconsistent in an arbitrary way, and so are now more consistent to reflect actual concerns of justice.
      (2) Second, is leniency. I think, as you say, crime is bad, but so is mercilessness. We could just shoot anyone convicted of any crime. We would really limit crime in this way, but this would be too harsh. Cocaine itself may harm people, but I think carrying 5 grams of it hardly demands a 5 year minimum sentence (especially since the new law is still very strict when the possession of cocaine involves VIOLENCE). I think everyone involved thought that given the sentences given for powdered cocaine, the sentence for crack were just too high.
      (3) Effectiveness. I think the evidence on this is very mixed, but it’s not true that mandatory minimums and more jail time always results in less crime. First, rehab might be more effective at limiting future crime when drugs are involved (and maybe you have a low opinion of rehab as an alternative, which is fine, but just note that if in even ONE case, a person would be better off going to rehab than jail, that solution is prevented under mandatory minimums). Also, going to prison can itself be associated with recidivism — unsurprisingly, people who go to jail don’t usually do well on the outside and so commit crimes again or weigh down society in other ways. So, if we want to not have to build a ton of jails, we should try to keep sentences at levels that are most effective without being too harsh (which can cause recidivism, or in the case of mandatory minimums, rule out other solutions altogether).

      Is this convincing to you?

  2. 3 David Short
    August 13, 2010 at 12:08 pm

    I actually wrote a paper on this in a Sociology of Law class. Frankly, while I think this bill is a good step, the 18 to 1 ratio that it puts in place now still seems pretty crazy to me. For example, you can make ~.95 grams of crack cocaine from every 1 gram of powder cocaine. So at the end of the day, we’ve just decided that one delivery mechanism of a drug is still 18x more dangerous / worthy of punishment than another. It’s comparable to saying that if you had 18 grams of heroin, that would be the same as having 1 gram of heroin and a needle. Anyways, someone who has an ounce of crack, which I think is the new minimum mandatory minimum sentence, almost certainly is a substantial dealer as opposed to when a simple user really could’ve been nabbed with the previous standards. So yes, this is a very good thing. It just still seems like it’s mostly related to some sort of fear of the inner-city crack fiend than a genuine belief that there is really 18x difference between rock and powder (for instance, you could free base powder cocaine and get the same effects of crack).

    Anyways, otherwise I really agree with you. The labeling only serves the purpose of simplifying things for people who don’t really understand what’s going on. It gives them a talking point / neat little package. Oh, this guy is soft on crime, I’ve got to vote against him to save my kids, etc.

    Other interesting fact. The congressional black caucus was actually integral in creating support for the original 100:1 ratio, feeling that crack was ravaging black neighborhoods, they thought by ultra-criminalizing it, they could end the scourge it was having on their communities. In fact, as we can see, when a lot of money is involved, people are going to be willing to risk even significant jail time. The effect it actually had was to get younger and younger children involved in the drug trade so that they wouldn’t be susceptible to the mandatory minimum sentences.

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