Racism in drug sentencing has been debated for years. Huge disparities in mandatory minimum sentences meant possession of crack cocaine, associated with Black urban communities, was punished much more harshly than possession of the same amounts of powder cocaine, favorite of celebrities and suburbanites. These sentencing requirements contributed to the mass incarceration of Black Americans, often low-level drug offenders. Though on Monday the Supreme Court had the chance to right this wrong, it instead ruled that low-level drug offenders do not always require new sentencing under the First Step Act of 2018 (New York Times).
Drug laws have been racist ever since Nixon declared the “War on Drugs” in 1971 (Drug Policy Alliance). In the 1980s, unfounded fears that pregnant people of color who used crack would give birth to a generation of disabled “crack babies” (NPR) incentivized harsher laws like the Sentencing Act of 1984 and the Anti-Drug Abuse Act of 1986, which imposed mandatory minimum sentences for drug offenders. A mandatory minimum means that someone convicted of a certain crime must receive at least a certain sentence, no matter what other extenuating factors may have been present. The Anti-Drug Abuse Act prescribed significantly harsher penalties for crack cocaine, with five grams of crack carrying the same mandatory minimum sentence as 500 grams of powder cocaine (CJPF).
Crack and powder are two delivery mechanisms of the same drug, though one was punished 100 times more harshly than the other. “The primary difference between crack and powdered cocaine, some say, is the public perception of the user and the seller,” said the New York Times. “The white suburbanite [is] usually linked with powdered cocaine, and the young, urban black man connected to crack” (New York Times). The Clinton administration’s 1994 Crime Bill enacted even tougher sentencing laws and incentivized the construction of private prisons (ACLU). In 2000, several organizations which had been advocating for sensible drug policies instead of mass incarceration since the late 1980s came together to form the Drug Policy Alliance (Drug Policy Alliance).
Up until 2010, crack cocaine possession continued to be the only drug that carried a mandatory prison sentence whether it was a small amount for personal use or a large amount for distribution. The Fair Sentencing Act of 2010 eliminated this mandatory prison sentence and reduced the sentencing disparity between crack and powder cocaine from 100:1 to 18:1 (USSC). The First Step Act of 2018 reduced mandatory minimum sentences for drug offenses, with some reductions applied retroactively to those already sentenced. However, the law did not eliminate mandatory minimums entirely (CRS Reports). Monday’s Supreme Court ruling held that only people sentenced specifically under a mandatory minimum modified by this law could apply for retroactive relief.
The proposed EQUAL Act would eliminate the disparity in sentencing for crack versus powder cocaine entirely and offer people who are incarcerated for crack offenses to retroactively reduce their sentencing (Vox). Although it would be a step in the right direction, we need to look at full decriminalization if we want to combat the impact that the so-called “War on Drugs” has had on minorities. In November, Oregon became the first state in the country to fully decriminalize drugs. The impact of drug decriminalization would be to reduce the prison population (and the costs associated with it), use law enforcement resources more meaningfully, prioritize health and safety over punishment, reduce the stigma associated with substance use disorders, and make evidence-based harm reduction practices more accessible, including syringe and other safer-usage supply access, supervised use sites, and naloxone (Drug Policy Alliance).
The so-called “war on drugs” has done nothing to reduce drug use and has only served as an avenue to incarcerate Black Americans at higher rates through the use of mandatory minimum sentencing and other sentencing biases (American Progress). Reduction in sentencing is a good first step, but the ultimate goal should be decriminalization in order to treat addiction as a public health crisis instead of a criminal matter.
Drug policy has historically been written with racist intentions and fueled by hysteria over the crack crisis. Crack carries a significantly larger (18:1) sentence than powdered cocaine.
Recent legislation to reduce mandatory minimums for crack have continued to treat crack more harshly than powdered cocaine, and efforts to eliminate this disparity entirely have only recently been introduced through the EQUAL Act.
Decriminalization of drugs would reduce the impact of mass incarceration and treat addiction as a public health crisis instead of a criminal offense.