Senator Joe Biden (D-Del.) decided to open a packed and emotionally charged Senate Judiciary Committee hearing on Feb. 12 by announcing the obvious: "There's an overwhelming consensus that something has to be done about disparities." He was referring, of course, to the draconian sentencing disparities between offenses for the use of “crack” and powdered versions of cocaine. And it was more than fitting that Senator Biden presided over this hearing, for twenty-two years ago in the crucible of America’s costly war on drugs, Senator Biden authored the very legislation that created the infamous disparity. As it stands today under the 1986 Anti-Drug Abuse Act, an individual caught with five grams of crack cocaine faces a minimum five-year mandatory prison sentence, while one would need at least 500 grams of powered cocaine to mandate the same sentence.

While the two variations of cocaine are pharmacologically identical, crack is far more common in low-income and African-American communities, whereas powder cocaine is more often used by whites. Year after year this trend has persisted, and 83 percent of those convicted for crack offenses last year were African-American. That this is the only meaningful distinction between crack and powder cocaine reveals a systemic injustice that is built upon and reifies institutional racism within the legal system.

Slam Dunk Information
The 1986 Anti-Drug Abuse Act was largely a product of the hysteria of the war on drugs. At the time the collective knowledge about the nature of crack cocaine rested upon a series of unsubstantiated myths. Among these were the understandings that crack was more addictive, that its potential effects on a fetus were more pernicious, and that it incited uniquely devastating levels of gang violence and warfare. In an interview with the HPR, Craig Reinarman, a sociologist at the University of California at Santa Cruz and co-author of the definitive book on the subject, “Crack in America,” said that while the mode of ingestion of crack can be more rapid and dangerous to the user, “pharmacologically and physiologically it is the same stuff." In an article in the Washington Post last fall, Reinarman argued that almost all common myths about crack are scientifically false.

Unfortunately, legislation failed to keep up with advances in information that disproved many of these myths. Much of the momentum in the struggle for sentencing equality over the past two decades has been sustained by countless federal judges who resent being forced to hand down punishments they view as arbitrary and unjust. In his testimony in front of the Senate as the official representative of the Federal Judicial Conference, Judge Reggie Walton said, "It hurt me to impose harsh sentences…I believe in strong punishment but it needs to be fair." Thanks to a sympathetic judge, one crack case recently found its way to the Supreme Court, which ruled seven-to-two in December that federal judges should have the discretion to overlook the questionable sentencing guidelines. This, in conjunction with the recent decision of the United States Sentencing Commission to recommend that the disparity be reduced from 100-to-one. to 20-to-one, may have finally provided the impetus for much-needed change.

Progress vs. Congress
That this 100-to-one disparity still stands has alarming implications about the nature of institutional racism within the legal system. In an interview with the HPR, Harvard Law Professor Carol Steiker said that "Race undoubtedly has played a role in the creation and maintenance of the disparity…if the interdiction of any drug had the affect on white, middle class families that the interdiction of crack has had on black, poor families, there would be swift legislative action." While Biden has proposed a bill that completely eliminates any disparity, two competing bills sit before the Judiciary Committee that would each maintain a sentencing difference of 20-to-one.

Supporters of one of the competing bills use language and logic reminiscent of the hysteria of the 1980s, arguing that crack cocaine is still associated with unique levels of violence and addiction. These assertions have no clear scientific basis, and only serve to propagate a legal code that unfairly targets African Americans. If the U.S. Senate truly wishes to redeem itself for its role in creating a legal inequality that has sent tens of thousands of black men to prison with unnecessarily severe sentences, it must work to pass legislation that permanently eliminates this disparity. ]]>