Drugs and Narcotics

In the war on drugs in the United States, race is a critical issue. Although statistics indicate that African Americans account for only 12 percent of all illegal drug use, they make up 44 percent of all drug arrests. This racial disparity has drawn the attention of policy makers, politicians, and the courts. Many observers attribute much of it to the severe penalties imposed for offenses involving crack cocaine, which lead to the arrest and conviction of primarily black defendants.

Smokable cocaine, or crack, originated in the 1980s in U.S. inner cities. Because crack costs much less than powder cocaine, it quickly became the choice of poor drug users. In response to the resulting increased use of crack, Congress passed the Anti-Drug Abuse Act of 1986 (Pub. L. No. 99-570, 100 Stat. 3207 [codified as amended in scattered sections of 21 U.S.C.A. §§ 801–970]).

The 1986 law regards one gram of crack as equivalent to one hundred grams of powder cocaine. The U.S. SENTENCING COMMISSION adopted this ratio when it revised the Sentencing Guidelines that same year. In 1988 the Anti-Drug Abuse Act was amended to establish new mandatory minimum sentences. The amendment's sponsor, Representative E. Clay Shaw, Jr. (R-FL), said of the tougher sentences: "Crack is an extraordinarily dangerous drug so we must take extraordinary steps to combat it."

Under federal law the offense of selling five grams of crack, for example, is punishable by a mandatory minimum sentence of five years. To receive the same sentence for trafficking in powder cocaine, an offender would have to sell five hundred grams. Thus, small-time crack dealers can receive longer prison terms than cocaine wholesalers. In addition, mandatory minimum sentences for crack offenses mean that PLEA BARGAINING for a reduced sentence is not available. First-time offenses involving crack or powder cocaine are also differentiated. First-time offenders convicted in powder cocaine cases often receive PAROLE and drug treatment; most first-time offenders in crack cases receive jail sentences.

By the early 1990s, the effect of these harsher laws on African Americans was evident. In a survey of 1992 sentencing data, the U.S. Sentencing Commission found that 92.6 percent of offenders sentenced for crack offenses were black, whereas 4.7 percent were white. With regard to cocaine offenses in general, 78 percent of offenders were black, and 6 percent were white.

The Bureau of Justice Statistics in the JUSTICE DEPARTMENT concluded in 1993 that blacks are jailed longer than whites for drug offenses. The bureau explained that "the main reasons that African Americans' sentences are longer than whites' … was that 83 percent of all federal offenders convicted of trafficking in crack cocaine in guideline cases were black, and the average sentence imposed for crack trafficking was twice as long as for trafficking in powdered cocaine."

Some critics believe that the racial disparities in sentencing are a result of intentional discrimination. They argue that race has long been an issue in drug enforcement laws, from concerns about Chinese laborers and opium at the turn of the twentieth century to fears about blacks and cocaine in the early 1900s that produced headlines such as "Negro Cocaine 'Fiends' Are a New Southern Menace." Other critics take the suggestion of conspiracy further, arguing that the comparatively heavy drug use (as well as violence) in the black community is a result of deliberate attempts by whites to foster black self-destruction.

Not all critics believe that the racial disparities created by the war on drugs are intentional. As of 2003, at least one state court had struck down enhanced penalties for crack offenses as a violation of EQUAL PROTECTION under the state constitution (State v. Russell, 477 N.W.2d 886 [Minn. 1991]). In that case the court said that state law treated black crack offenders and white powder cocaine offenders unfairly, although that result may have been unintentional.

On the federal level, several convicted crack offenders have argued that the discrepancy between sentences for crack and powder cocaine violates equal protection or DUE PROCESS, but nearly every appellate court has rejected this argument. In May 1996 the U.S. Supreme Court held that statistics showing that most crack defendants are black do not in themselves support the claim of SELECTIVE PROSECUTION. Instead, the Court ruled, the burden is on defendants to prove that "similarly situated defendants of other races could have been prosecuted, but were not" (United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687).

Lawmakers have also rejected the assertion that racial discrepancies are unjust. In April 1995 the U.S. Sentencing Commission proposed abandoning the guidelines. Determining that the penalties were too harsh, the seven-member commission voted 4 to 3 to equalize penalties for crack and powder cocaine. Although most black members of Congress supported changing the sentencing guidelines, conservatives argued that crack sentencing had nothing to do with race and that revising the guidelines would allow serious offenders to serve little or no time. The penalties remained intact.

Many liberal organizations, including the AMERICAN CIVIL LIBERTIES UNION, have decried the war on drugs due to the disproportionate impact on racial minorities. The Drug Policy Alliance, which claims to be the leading organization promoting alternatives to the war, has held a number of national conferences on this issue. In 2001, a group of politicians, celebrities, religious leaders, and advocates for drug policy reform submitted a letter to the secretary general of the UNITED NATIONS calling the war on drugs a "de facto form of racism."

As long as the war on drugs remains a priority for domestic policy, prosecution and incarceration for drug crimes will continue on a large scale. The challenge facing legislators, attorneys, and the courts is how to make a system that reduces the effects of drug use on U.S. society, while avoiding excessive punishment of particular societal groups.