Punishments for forms of cocaine never made sense

While we wait for the United States Senate to pass the Equal Act, effectively and finally eliminating the sentencing disparity between two forms of cocaine, U.S. Attorney Gen. Merrick Garland outlined additional policies for federal prosecutors to pursue equalizing charges, pleas, and sentencing in those drug cases.

“The Justice Department supports elimination of the crackto-powder sentencing disparity and has testified before Congress in support of the Equal Act … which would remove that disparity,” the memo states, in part, noting that the disparity is unscientific and that sentences have led to racial disparities. Until the Senate passes the Equal Act, the Justice Department is applying this policy “with particular force in drug cases … where the mandatory minimum sentences based on drug type and quantity have resulted in disproportionately severe sentences for certain defendants and perceived and actual racial disparities in the criminal justice system.”

To discuss their own research and professional work in the area of drug policy and, specifically, the crack-versus-powder cocaine disparities, David Mares,mark Osler, and Doris Marie Provine took some time to talk about the significance of Garland’s latest instructions, the history of the anti-drug legislation that led to these racial disparities, and how we might possibly repair the harm done to the communities that suffered under these policies. Mares is a distinguished professor of political science at UC San Diego and author of “Drug Wars and Coffeehouses: The Political Economy of the International Drug Trade” about drug policy around the world; Osler is a former federal prosecutor and current law professor at the University of St. Thomas in Minnesota, where he teaches about sentencing and clemency; and Provine is professor emeritus of justice and social inquiry in the School of Social Transformation at Arizona State University, and the author of “Unequal Under Law: Race and the War on Drugs.” (These interviews have been edited for length and clarity. For a longer version of these conversations, visit sandiegouniontribune.com/sdut-lisa-deaderickstaff.html.)

Q:

What does Garland’s latest instruction do that hasn’t already been achieved through previous laws and amendments to sentencing guidelines? What is the significance of this recent memo?

Osler: In 1986, Congress established the ratio between crack and powder cocaine for sentencing purposes, 100 to 1. You’d be sentenced the same for 5 grams of crack as for 500 grams of powder cocaine and that had an incredible impact because 5 grams isn’t very much and the mandatory minimum for just possessing 5 grams was five years in prison. That led to a deep tragedy in our country in terms of driving racial disparities and incarceration in federal prisons with, primarily, Black men. There wasn’t much thought gone into establishing that ratio, but it was very hard to undo, as any criminal sentencing law is, and maintain. As far back as 1995, there was a movement of the [United States] Sentencing Commission to equalize it, to make it one-to-one, that, ultimately, was rejected. I brought a case in the Supreme Court, Spears v. United States [in 2008], where the court finally said that district court judges could categorically reject the 100-to-1 ratio. The Equal Act would have equalized the ratio of crack as the same for powder. Despite having widespread bipartisan support and having more than 60 senators supporting it, having passed the House, it didn’t cross the finish line. In that context, Merrick Garland issued instructions on charging that what prosecutors were to seek would be one-to-one sentencing for crack. Importantly, that doesn’t help people who are still in prison, only those people going forward. We’ll see how that’s applied by prosecutors on the ground.

Q:

Can you talk a bit about how this 1986 legislation resulted in these racial disparities harming Black and Latino communities?

Provine: At the time, I was at the federal judicial center studying and working with the federal courts. I learned about a number of resignations of senior judges and judges taking what they call “senior status” to avoid having their cases dictated to them, and they were avoiding crack cocaine sentencing. A lot of complaints were coming in to the federal sentencing commission. Where I first picked up on how there might be a real justice issue with these federal district judges, which are essentially the trial judges in the federal system, was they were complaining pretty loudly that almost every defendant they were sentencing these big sentences to, was a young, Black male and it made them very uncomfortable and made them think something was seriously wrong. So, I started looking into how that legislation was passed and looked at the testimony that Congress listened to in passing that law. That was really a bombshell for me because there was a lot from newspapers, especially in the archival evidence I had of what came in to Congress, and it was clearly very skewed, racially. “Inner city” language was used to describe crack transactions, and then some of the testimony was, ‘We need to protect our college kids and not do too much with marijuana, but crack, oh my God, this can infect young, White people,’ basically. It was clear that it was a sense of fear of what might happen to White, middle-class and upper middleclass populations because of this epidemic in the Black underclass. There were terms like “rats involved with crack” and just incredible terminology, so this was a kind of racial construction and fit with previous drug war panics.