President Barack Obama recently signed into law legislation that will greatly reduce federal sentencing disparities between crack and powder cocaine offenses. The Fair Sentencing Act alters a 1986 law, enacted at the height of the media and political frenzy over the asserted dangers of crack cocaine, which required sentencing a person convicted in federal court of crack cocaine possession to the same prison term as someone caught with 100 times as much powder cocaine.
Because about 80 percent of those federally prosecuted for crack offenses are black, the 100-1 ratio became a powerful symbol of racial inequities in the national war on drugs.
For the 5,000 crack offenders prosecuted annually in federal courts, replacing a 100-1 ratio with and 18-1 ratio will make a big difference in their sentences. But most drug offenders are prosecuted in state courts under state law — out of 1.7 million annual drug arrests nationwide, only about 25,000 are prosecuted in federal courts.
Ostensibly color-blind, U.S. anti-drug efforts have always disproportionately targeted black Americans, and the new federal legislation does nothing to change this. Whites will continue to smoke marijuana and snort cocaine with relative impunity. Low-income people of color arrested for sale or possession of those same drugs will continue to fill the nation's jails and prisons.
Blacks and whites engage in drug offenses at roughly similar rates, but more than one in three drug arrests is of a black person. Blacks enter state prison on drug charges at ten times the rate of whites.
To some extent, racial disparities in arrests reflect the fact that it is easier to make drug arrests in poor minority neighborhoods, where people are more likely to buy and sell in public and between strangers.
At a deeper level, racial disparities in the criminal justice system reflect the way race shaped the definition of the drug problem and hence the proposed solutions. The origins of current drug control efforts lie in the mid-1980s when crack hit the streets, was quickly demonized and was widely (albeit erroneously) thought to be a "black" drug.
While "drugs" and "tough on crime" were the words used by politicians wooing a white electorate with draconian new drug laws – including the infamous 100-1 ratio, the unspoken subject was race. Punitive policies of arrest and incarceration appealed to white voters who were anxious about their declining status in the post-civil-rights era or fearful about the "dangerous" black urban underclass.
In addition to the federal crack-powder sentencing differential, the Obama White House civil rights agenda includes several helpful drug policy initiatives, e.g. ending racial profiling and expanding drug courts that send offenders to treatment. But to tackle the racial fault line that runs through the entire national anti-drug effort requires a more fundamental rethinking of the entire anti-drug paradigm which has focused primarily on law enforcement – arrests and imprisonment. Ending racial profiling, for example, is not going to stop police from concentrating their drug law enforcement efforts in minority neighborhoods.
Unfortunately, under President Obama's recently announced national drug plan, money will continue to flow to traditional drug law enforcement, with prevention and treatment getting short shrift.
The human as well as social, economic and political toll of racially skewed anti-drug efforts is as incalculable as it is unjust. Reducing the difference between federal crack and powder cocaine sentences is a good — but nonetheless tiny — step in the right direction. Many more are needed.
Jamie Fellner is senior counsel in the U.S. program of Human Rights Watch and has written extensively about racial disparities in drug policies.
