Media, Misconceptions, and Members of Congress:The Anti-Drug Abuse Act of 1986 and the Ramifications of Sentencing Disparity

Richard DornfeldJustice and Public Policy

JLS – 309.002April 14, 2011

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In September of 1992, Roger Van Smith II was a 21-year-old college student at Virginia Union University. Smith was arrested after being caught with cocaine freebase (crack). Despite being a college student, the product of stable two-parent home, and a first-time offender who did not have a weapon, Smith faced a sentence of 30 years to life—and eventually served 13 years in prison (Washington Post, D5). Only a few years earlier Smith probably would have received a much lighter sentence because of a variety of circumstances, such as his unblemished record and positive family background. The omnibus Anti-Drug Abuse Act of 1986 (the Act) removed most of the flexibility in the federal courts with the creation of a 100-to-1 ratio sentencing mechanism that equated one gram of crack with 100 grams of powder cocaine (cocaine). Additionally, the Act mandated mandatory minimums sentences for anyone caught with just five grams of crack. In the frenzied atmosphere of 1986, this sentencing provision was one of the least controversial proposals and, as a result, received little scrutiny despite its significant ramifications.

The Act was the product of drug hysteria that permeated American society from the mid-1980s until the late-1990s. Scholars Reinarman and Levine write,

Newspapers, magazines, and television networks regularly carried lurid stories about a new ‘epidemic’ or ‘plague’ of drug use, especially of crack cocaine. They said this ‘epidemic’ was spreading rapidly from cities to the suburbs and was destroying American society (1997, 1).

With the 1986-midterm elections close at hand, Congress moved quickly to pass the Act in a little more than one month after it was introduced. Unfortunately, media frenzy and a politically motivated Congress are not conducive to sound public policy, as individuals such as Van Smith discovered in the years following the Act’s passage. Problematically, the Act also created racial disparities that have had lasting consequences on the American justice system for decades.

The Act was the product of competing forces that spurred Congress to quickly enact a sweeping reform, which, among other things, dramatically changed crack sentencing. The legislative agenda of Congress usually is driven by voter preferences, particularly when a session is leading up to an election. What drives voter preferences is another issue altogether. Certainly the news media plays a major role in driving crime concerns, as Chiricos, Padgett, Gertz found a correlation between increased exposure to news media coverage of crime and fear of crime even when the media coverage is disproportional to the actual amount of crime occurring (Chiricos, et al 2000).

During the spring and summer of 1986 voters were subjected to a news assault. Print coverage included a March 17 Newsweek cover story, “Kids and Cocaine,” in which drug expert Arnold Washton, a psychopharmacologist, said that "Crack is the most addictive drug known to man right now… It is almost instantaneous addiction, whereas if you snort coke it can take two to five years before addiction sets in. There is no such thing as the 'recreational use' of crack” (Morganthau, et al 1986, 58). By June, Newsweek was running articles with titles like the “Plague Among Us.” Though it was hardly the only publication to toss around plague terminology, U.S. News and World Report wrote, “Illicit drugs pervade American life” and compared the situation to medieval plagues (Lang, Taylor 1986, 49). And the New York Times described suburban teenagers turning to burglary and prostitution to pay for crack habits as common occurrences (Kerr 1986).

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These news publications painted a particularly dire picture for the state of American society with willing accomplices in public bureaucracies. While crack usage may have increased, the data simply do not support claims of an epidemic or plague of medieval proportions. Between 1979 and 1985, usage only increased from 5.7 to 6.7 percent and use in real terms peaked in the late 1970s with around five million regular users (Krauthammer 1986). Additionally, the reach of crack was “disproportionately concentrated on the blocks surrounding public housing, on sex worker strolls, and on burnt out vacant lots” (Bourgois 2003, 2). The epidemic presented by the media, and later, politicians, was unfounded. Regardless of actual use, regular television and newspaper coverage of crack skyrocketed, thus blurring the public perception of the drug problem in the United States.

The influence of the news media becomes ever more apparent after looking at the public opinion data. Despite the federal governments increased its commitment to fighting crime between 1986 and 1994, when the trend finally peaked, the number of Americans who believed the government was not spending enough to combat crime increased from 65.1 to 77.6 percent. The number who believed the government was spending too much only increased about one percent from 4.9 to 6.2 percent (General Social Survey). Public support for a punitive brand of justice increased to almost 90 percent from the low 70s only a decade earlier (Ibid).

Despite the public hysteria surrounding crack use in the 1980s, Americans had been using it for at least a decade. Less popular in the 1970s, “crack was called ‘garbage freebase’ because of its higher level of impurity when compared to true base cocaine” (Agar 2003, 5). Relatively simply to produce “cooking powder cocaine and baking soda in water and then letting it cool, a resin-like substance will form at the top of the container and harden. It isn't as pure as freebase, (which is made using highly explosive ether) because the baking soda leaves a trace of salts and the cocaine can be adulterated before cooking to increase the yield” (Ibid). Though for some simplicity of the drug and its relatively inexpensive ingredients proved to be advantages. The worsening economic conditions of the 1980s, made crack the drug of choice for America’s urban poor who could not afford crack’s more expensive counterpart cocaine. Far from an epidemic, the economic programs of the Reagan Administration that reduced social program spending and funds available best explain the spike in crack use during the 1980s.

Elected officials quickly learned to use the changing sentiments of the American people for political gain. The 1986 Anti-Drug Abuse Act was hardly the only anti-drug law passed during the 1980s. After Congress realized crime and drugs made good political theater, it passed legislation with increasing frequency. In 1984 alone, Congress passed three major bills: Drug Offenders Act, Analogue (Designer Drug) Act and Crime Control Act. In following years, Congress passed the Omnibus Drug Abuse Act of 1988, Violent Crime Control and Law Enforcement Act in 1994 and Comprehensive Methamphetamine Control Act of 1996. Considering that crime rates did increase did during the 1980s new federal legislation designed to address crime appears to be reasonable: unfortunately, not all of this legislation was properly constructed.

With mounting public fear from the media deluge during the summer of 1986 politicians began stepping into the fray. “When Speaker of the House Tip O'Neill returned to Boston for the Fourth of July congressional recess, everyone seemed to be talking about the cocaine-related death of

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University of Maryland basketball star and recent Boston Celtics draft pick Len Bias.” To counter potential claims that the Democratic Party was soft on drugs, O'Neill began developing a huge anti-drug bill to be passed prior to the November elections (Schlosser 1997, 5). On August 4, President Reagan told America in a televised address that “the key to our anti-drug strategy… [is] a national crusade against drugs, a sustained, relentless effort to rid America of this scourge—by mobilizing every segment of our society against drug abuse” (Woolley, Gerhard 2011). With the Senate in the balance, calls for a crusade against drugs did nothing to lower the stakes for either party prior to the elections, where crime and drugs were clearly going to be major voter concerns.

As a result of political gamesmanship, the omnibus Drug-Abuse Act of 1986 was severely muddled by political considerations. Democratic House Majority Leader James Wright (TX-12) introduced the bill on September 8, 1986. A popular and expansive bill, it had more than 300 co-sponsors in the House and was referred to 12 different committees. In the Senate, Robert Dole (R-KS) introduced the bill several weeks later with 29 sponsors, 12 of whom were up for re-election. The bill passed both chambers within weeks and was signed into law by President Reagan on October 27, 1986.

Though the summer-long media barrage had created a politically favorable environment, the process of getting the legislation passed hardly was simple. The Act was designed to stem the flow of illegal drugs into the United States, strengthen enforcement of existing drug laws, increase penalties for narcotics trafficking and improve drug abuse education, prevention and treatment (Congressional Quarterly 1986). The recognition that a drug bill would be politically expedient meant that every faction of Congress and the Administration introduced its own major initiative. House Democrats announced their plan on July 23, while Senate Democrats proposed their proposal on September 9 and Senate Republicans introduced yet another bill ten days later. Not to be left behind President Reagan sent Congress the Drug Free America Act of 1986 on September 15.

The sheer amount of legislation being proposed meant the whole process easily could have been derailed. However, the desire to get the Act passed in the media spotlight before the pending elections forced politicians to forge unholy alliances. Three major issues arose during the Act’s development: cost, the death penalty and the creation of a drug czar. Incredibly, despite concerns about the rising budget deficit that was expected to top 5 percent of GDP and result in $200 billion in new debt, the original Democratic House bill proposed $1.92 billion in new spending. The Senate Democrats suggested the slightly less new spending at $1.65 billion, while their Republican counterparts wanted $1.3 billion in new spending. President Reagan held the distinction of proposing the cheapest bill with a price tag of only $889 million (Ibid). The cost was never more than a secondary concern, with Republicans accusing the Democrats of trying to solve the problem by throwing money at it.

Liberals took their own opportunity to criticize the rest of the House conference for a provision to allow the death penalty for murders related to drug transactions. A leading proponent of the death penalty provision, Representative George W. Gekas (R-PA) stated at the time that capital punishment was “a natural extension of the war on drugs we are waging” (Bertram 1996, 166). The issue divided the party as more conservative Democrats agreed with Gekas, Majority Leader

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Jim Wright (D-TX) stated that “Congress needs to mount a comprehensive attack against this menace that has come more and more to threaten our youth” (Rosenbaum 1986). The provision survived the process and remained part of the original House bill, though liberal Democrats and Republicans accused the conservatives of trampling the Constitution for political expediency.

The House bill was hardly finished when it reached the floor, where Democrats and Republicans competed to see who could be tougher on crime. On the floor, each party submitted endless amendments to see who could propose the stiffest penalties against drug dealers or add the most money for enforcement programs. In the end, all the additions from both parties were accepted. In the pre-election frenzy some felt that the bill was becoming excessive, “In football there's a thing called piling on,” said Representative Patricia Schroeder (D-CO). “I think we're seeing political piling on right before the election” (Bertram 1996, 139). Despite the challenges faced in the House it would look relatively simple compared to difficulties the Act would encounter in the Senate.

The Republicans controlled the Senate by a small margin of six seats, but its parliamentary rules allowed an individual member to easily obstruct legislation—thus, there would need to be more compromise than was seen in the House. To quickly pass the legislation Minority Leader Robert Byrd (D-WV) and Majority Leader Robert Dole (R-KS) moved to reconcile their party’s proposals, resulting in a bill worth about $1.5 billion. It also initially included the slightly more stringent version of the capital punishment provision found in the House bill. Democrats were forced to give up their desire to establish a cabinet-level drug czar, which they believed would help reduce jurisdictional infighting among the various Federal agencies charged with combating drugs. The Senate Republicans removed it because much of their legislation was based on the Reagan Drug-Free America Act proposal, which opposed the creation of the position.

Between the larger political fights occurring in Congress, there was a general consensus to create mandatory minimums for cocaine and crack. It was best summarized by Senator Byrd, who believed that the mandatory minimum sentence would deter the “kingpins.” According to Byrd, these individuals are “the masterminds who are really running these operations and they can be identified by the amount of drugs with which they are involved” (U.S.S.C. 2002, 6-7). Regardless of the logic, most members of Congress readily accepted the provision, many of whom were busy running for re-election and grappling with the immense cost of the bill and the death penalty provision.

In the name of compromise the Republicans dropped a drug-testing program for Federal workers that the Reagan administration had wanted and Democrats opposed. Democrats were forced to accept a smaller price tag for the bill. The biggest change was on the capital punishment provision, which proved to be a sticking point that could have destroyed the whole package. Senator Charles Mathias Jr. (R-MD), who led the battle against capital punishment, said that he was determined not to give in on the matter and threatened to filibuster any bill that included the capital punishment provision (Bertram 1986). As a result of Mathias’ actions and 24 other liberal leaning senators, the provision finally was removed from the Senate bill, setting up more conflict for the House-Senate conference committee.

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Despite receiving some bipartisan support from conservative Democrats and much of the Republican Party, the capital punishment provision eventually was dropped from the final House bill during the conference committee. The leadership of both parties recognized it jeopardized the entire bill in the Senate. A mandatory minimum life sentence with no parole for those convicted of drug-related murders was added to appease those in the Senate who wanted the capital punishment provision. On October 17, 1986 the House and Senate agreed to a $1.7 billion package (approximately $3.3 billion in today’s dollars) that included all the required compromises to pass both chambers. As for crack sentencing, which was hardly discussed, the final bill created “two mandatory sentencing ranges for drug offenses.” The lower bracket spanned periods of imprisonment ranging from a mandatory minimum of 5 years to a maximum of 40 years; the higher ranging from a mandatory minimum of 10 years to a maximum of life” (Yeh 2010, 2). These mandatory sentence ranges would prove to have major ramifications in the years to follow.

When President Reagan signed the bill on October 27, he remarked that it “marks a major victory in our crusade against drugs—a victory for safer neighborhoods, a victory for the protection of the American family. The American people want their government to get tough and to go on the offensive” (Woolley, Gerhard 2011b). Though Reagan’s signature may have made the Anti-Drug Abuse Act of 1986 the law of the land, it was far from perfect. The only ramifications of mandatory minimum drug sentences to be considered were how they affected any various incumbents’ re-election bids. Due to a rushed timeline, members of Congress did not seriously examine the consequences of these sentencing requirements. More media glamorous and perhaps more pressing concerns, like the death penalty and the creation of a drug czar, were given center stage in the floor debates. While these issues certainly are important and deserved attention, the rushed deadline to complete the bill meant that other provisions—including the 100:1 ratio and mandatory minimums—simply did not receive adequate scrutiny. However, haste and political theater were not the only reasons that the Act contained major flaws. Faulty assumptions about the nature of crack, its users, sellers, and the prevalence of the drug in American society also created problems.

By mid-1987 the Government Accounting Office (GAO), Congress’s oversight agency, had already come to the conclusion that there were significant problems with the Act. Arnold P. Jones, Senior Associate Director of GAO, told the House Criminal Justice Subcommittee that “[they] expect there will be significant growth in the federal prison population over the next 10 to 15 years primarily because of the mandatory minimum penalties required by the Anti-Drug Abuse Act of 1986, increases in federal prosecutions and convictions… [that] could cost several billion dollars over the next decade to build prisons for the additional inmates (Fogel 1987, 4-5).” In addition to the immense cost associated with significantly increasing the prison population, others came to the conclusion that Congress’s initial reasoning was seriously flawed. According to the Federal Sentencing Commission, Congress originally found four reasons for creating the sentencing discrepancy:

These factors generally include: 1) a greater risk for psychological addiction due to the rapid high and concomitant rapid low resulting from inhalation of crack; 2) because powder cocaine can be converted easily into smaller doses of crack that can be sold more cheaply and in potent quantities, crack is more readily available to a larger segment of the population, particularly women, children, and the

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economically disadvantaged; 3) the apparently higher correlation between crack and violence than between powder and violence; and 4) the increased use of young people in the distribution of crack (Conaboy 1995, 13-14).

Congress was roughly correct that crack can be more addictive, although it may have overblown these concerns in the politically charged environment caused by an upcoming election and the media onslaught. In 2002, the United States Sentencing Commission (U.S.S.C.) wrote, “smoking crack cocaine produces quicker onset of, shorter-lasting, and more intense effects than snorting powder cocaine. These factors in turn result in a greater likelihood that the user will administer the drug more frequently to sustain these shorter ‘highs’ and develop an addiction” (Murphy, 30). Though there may be some rationale for increasing the length of a sentence for crack relative to cocaine it remains unclear why a 100:1 ratio is required. Due to the myriad of other issues surrounding the policy it becomes less apparent why Congress selected this ratio.

There is little doubt that crack is more readably available in the inner-city, where its relative inexpensiveness made it appealing to impoverished individuals. According to the media, crack was becoming the drug of choice for Americans everywhere; however, this simply was never the case. The 1995 Special Report to Congress: Cocaine and Federal Sentencing Policy reported that crack use “was most common among young and middle-aged adults, males, especially those who were Blacks, residents of metropolitan areas, those with less than a high school education, and the unemployed” (Conaboy, 25). Interestingly, some proponents of the sentencing disparity believed that the 100:1 ratio would be good for inner-city communities because it signaled that the government would not tolerate drug dealing and the associated social ills that were plaguing America’s urban areas. Unfortunately, these provisions devastated inner-city neighborhoods as young men, who users or low-level dealers, were stripped from their families and communities. Perhaps even worse is that “the intensive surveillance of black neighborhoods, and the pattern of surveillance of white neighborhoods has the general consequence of institutionalizing racism by defining the problem of crime generally, and drug use in particular, as a problem of young black men” (Chambliss 1994, 8). Far from improving inner-city communities these and other “get tough” measures have in many ways created hostile living environments.

Senator Byrd and others who believed that the ratio would reduce the number of “kingpins” were mistaken. In fact, the policy encouraged larger sentences to low-level dealers and users because of a statutory mechanism that rewards those with information on the criminal behavior of others. For example, “in the case of United States v. Brigham, a relatively low-level drug dealer received a sentence of 120 months incarceration while the leader of the organization received only 84 months because he had provided ‘substantial assistance’ to the prosecutor” (Mosher, Akins 2007, 215). Because the law rewarded those with more information (e.g. those higher up in an organization) to give the prosecutor they received less jail time, resulting in a system where many low level criminals were being locked up for long periods of time. Mandatory minimum sentences create a system with “excessive uniformity” (Schulhofer 1993, 12). The result is illogical sentences in which individuals can potentially end up serving sentences inverse in severity to their actual involvement because of their ability (or inability) to provide information to authorities.

By the early 1990s, evidence that those involved with crack either, as users or dealers, were substantially more violent than their cocaine counterparts was waning. The United States

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Sentencing Commission found that “one of the oft-stated reasons for the severe crack cocaine penalties was the perception that crack cocaine trafficking was marked by greater violence, sufficient to warrant the extreme penalties, even for possession for personal use. In fact, crack cocaine defendants possess fewer weapons, commit fewer violent crimes, and engage in less aggravating conduct [than powder cocaine defendants]” (Murphy 2002, 150). Others criticized this assumption because it perpetuates an unfair system where all “crack cocaine defendant are presumed to be violent even when there is no evidence that a particular defendant was in fact violent” (Ibid, 151). While the mandatory minimums did not lead to the incarceration of significant figures in the drug trade or those who were particularly violent, it did have a major effect on who and how many went to prison.

The Act’s mandatory minimums unfairly punished minorities—African-Americans in particular—who are more likely to be caught with crack than its powder counterpart. As was discussed earlier, despite being almost chemically identical to cocaine, crack is preferred in more impoverished areas for financial concerns. With nearly 25% of African-Americans in poverty compared to roughly 8 percent for Caucasians, this discrepancy is unlikely to change anytime soon (Office of Minority Health 2009). In 1993, of those sentenced for crack cocaine, 88.3 percent were African-American and 95.4 percent were non-White (Gelacak, 1997). In some states the disparity was even greater: in 1988, 100 percent of those sentenced for crack were African-American in Minnesota, while 66 percent of those sentenced for cocaine were Caucasian (Mosher, Akins 2007, 213). As result of this sentencing ratio, African-Americans and other minorities began serving longer sentences frequently for possessing a smaller amount of the same drug, albeit in a different form.

Where do all these low-level offenders go? Most likely a state or federal prison that as GAO predicted in 1987 is already at or overcapacity. In 1986 there were 217 people per 100,000 in state and federal prisons; by 1996 the number of incarcerated had nearly doubled to 427 and in 2009 it had increased to 502 people per 100,000 (Bureau of Justice 2011). The sheer number of people involved in the justice system (prison, jail, parole, or probation) increased 300% between 1980 and 2000. According to the Federal Bureau of Prisons in 2008, federal prisons were operating at 37 percent above capacity, while high-security facilities were even more strained, operating at an average of 49 percent overcapacity (Lee 2008). The culprit has been longer sentences for low-level crimes, which has steadily increased the prison population since the early 1980s (Ibid). For the taxpayer, this meant collectively spending $74 billion a year just to keep people incarcerated with another $50 billion to move people through court system in 2007. In 1986, the United States spent $31 billion on incarceration, which was an $11 billion increase from 1982 (Bureau of Justice). Particularly troubling is that Congress created one of the major culprits for imprisoning 2,284,913 individuals by 2009 to score political points prior to the 1986 elections. Simply put, the Act and similar legislation created an unsustainable strain on the criminal justice system that, in turn, has put a burden on the budgets of local, state and federal governments.

Those convicted under these increased penalties and civil liberties activists were not the only ones to decry the stringency of the mandatory minimums. Members the federal bench and state judges (where similar laws were passed) were critical as well. A similar Minnesota state statute was thrown out in 1990, when Hennepin County Judge Pamela Alexander ruled that “state

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sentencing guidelines are flawed [and] there is no logical reason why people convicted for crack possession should be treated any differently than those convicted of possessing any other form of cocaine.” Her ruling was upheld by the Minnesota Supreme Court, making it one of the first rulings of its kind. At the federal level, judges felt that the mandatory minimums required by the Act were overly constricting. In 1993, Percy Dillon was convicted of several drug crimes and was sentenced to the minimum of 322 months (26 years, 10 months) in prison. The district court judge lamented the lack of flexibility in the statues stating, “I personally don’t believe that you should be serving 322 months, but I feel I am bound by those Guidelines… I don’t say to you that these penalties are fair. I don’t think they are fair. I think they are entirely too high for the crime you have committed” (Yeh 2010, 16). These were hardly isolated cases. In 1997, before the Senate and House Committees on the Judiciary, 27 federal judges—all former US attorneys—stated that “It is our strongly held view that the current disparity between powder cocaine and crack cocaine, in both the mandatory minimum statutes and the guidelines, cannot be justified and results in sentences that are unjust and do not serve society’s interest” (Murphy 2002, 2). Through out the 1990s, widespread criticism of mandatory minimums and the 100:1 ratio developed among criminal justice professionals—however this did not translate to political action on the behalf of the White House or Congress.

Despite criticism, Congress was slow to make changes to the mandatory minimums and the 100:1 ratio found in the legislation, in large part, due to political considerations. In 1995, the U.S.S.C. recommended reducing the ratio to 1:1. In 1997, the commission deviated slightly, arguing that the ratio be set at 5:1 by increasing the amount of crack required to trigger the mandatory sentences, while lowering the amount of cocaine required (Mosher, Akins 2007, 214). This change was designed to recognize that crack can potentially be more destructive than cocaine due to it being more addictive, but taking into account that the difference is much smaller. Michael Gelacak, the vice-chairman of the U.S.S.C. argued that “it is a little like punishing vehicular homicide while under the influence of alcohol more severely if the defendant had become intoxicated by ingesting cheap wine rather than scotch whiskey” (Gelacak 1997, 2). The U.S.S.C. continued to argue for the reduction of this significant discrepancy in 2002 and 2007 as well. Yet during the 1990s, the Clinton administration was resistant to proposed reforms—ignoring the commission’s conclusions in both 1995 and 1997.

Though President Bill Clinton was a Democrat he continued many of the “War on Drugs” programs started by his Republican predecessors and, in some cases, increased the Federal government’s involvement in combating drugs and crime (Pastor 1996). In 1988 Vice-President George H.W. Bush had been able to paint Democratic presidential candidate Michael Dukakis as soft on crime, which played a major role in his defeat. With crime and drugs still hot topics in 1992, it is unsurprising that Clinton took a hard-line stance on these issues to avoid looking “soft on drugs” and the same electoral fate as Dukakis. According to Nancy Marion, Clinton positioned himself far to the right on crime making himself almost as conservative as Bush. While serving as governor of Arkansas Clinton had presided over four executions and, further burnishing his anti-crime credentials, proposed massive new anti-crime programs while running for president (Marion 1997, 69). Considering Clinton’s political posturing, his unwillingness to push for the change of a flawed, but publically popular, sentencing mechanism is unsurprising. Changes to the 100:1 ratio and mandatory minimums would not begin to happen until interest in crime began to cool and, even then, it would not begin with the legislative branch.

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Clinton and Congress were not the only parties with a vested interest in maintaining mandatory minimums. Criminal justice also is big business. For many communities and families the criminal justice industry creates otherwise scarce jobs. In the early 1990s, the police officer’s association in Prince George's County responded to the threat of budget cuts by hiring a public relations firm—running “television commercials citing increasing crime rates and accusing the county executive of handcuffing police officers with proposed budget cuts” (Chambliss 1994, 16). Police unions are not the only culprits either. Communities across the country depend on the local prison for the only decent jobs in town. New York greatly benefited from the prison boom of 1990s “in addition to the more than $1.5 billion spent to build correctional facilities, the prisons now bring the North Country (an area of New York state) about $425 million in annual payroll and operating expenditures. That represents an annual subsidy to the region of more than $1,000 per person” (Schlosser 1998, 2). With so much money at stake, interest groups naturally have formed at both the state and national level to protect it. How do they protect these interests? By ensuring that prisons stayed filled—partially by supporting tough sentences for individuals convicted of crimes. With so many reasons to keep, mandatory minimums, reform would have to come from a source divested of political interests.

Until 2005 judges were required to apply the sentencing rules provided by Congress, including the mandatory minimums for crack offenses. In United States v. Booker, the U.S. Supreme Court found mandatory minimums unconstitutional for two reasons. The first was “because they require a judge to increase a sentence above the maximum guideline range if the judge finds facts to justify an increase.” And the second was because a “defendant’s right to trial by jury is violated if a judge must impose a higher sentence than the sentence that the judge could have imposed based on the facts found by the jury.” As a result, the mandatory sentences became a set of advisory guidelines that district judges were required to “consider” among a range of other factors (Yeh 2010, 5-6). Issues arose surrounding the guidelines that were resolved in the 2007 case, Kimbrough v. United States. In this case the Supreme Court’s ruling clarified arguments made in Booker by explaining that “although a district judge must respectfully consider the guidelines range as one factor (among many) in determining an appropriate sentence, the judge has discretion to depart from the guidelines based on the disparity between the guidelines’ treatment of crack and powder cocaine offenses” (Yeh 2010, 9). While some judges may chose to deviate, the vast majority continued to use the guidelines with 85.9 percent of sentences conforming to the guidelines (Hinojosa 2006). More troubling was that one of the few strengths of mandatory sentencing statutes—their uniformity—was fractured. In the years after Booker and Kimbrough sentences began to see increased variation for irrelevant factors, (e.g. the judge), creating issues with the uniform application of justice.

After rejecting reform proposals for the better part of two decades, Congress finally moved to change the statutory minimums. The Fair Sentencing Act (FSA) of 2010 reduced the disparity to 18:1. To receive a five-year mandatory sentence an individual would need to be found with 28 grams of crack and 280 grams would be required to warrant a 10-year prison term. Finally, FSA eliminated a mandatory sentence for simple possession (“The Fair Sentencing Act Corrects a Long-time Wrong in Cocaine Cases”). For a country with rapidly filling prisons and increasing budgetary problems, FSA reduced the average sentence by about two years and saved the federal

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government about $42 million during the next five years (famm.org). The changes most certainly are welcome for the people involved in the 3,000 cases a year FSA is expected to impact.

Unfortunately, FSA did not finally do away with the statutory mandatory minimums that judges are required to consider and frequently apply. Certainly there is a place for guidelines for judges to ensure that the law is applied evenly across jurisdictions. However, by continuing to trigger mandatory sentences FSA interferes with a judge’s ability to properly consider all relevant factors in any particular case and apply an appropriate sentence. These mechanisms also create confusion about how to properly apply the law. Moreover, this situation sets up statutes for future disagreement and, inevitably, new cases to be settled by the U.S. Supreme Court, which has done little to settle such problems in the past (such as in Booker).

Mandatory minimums would be less of an issue if they treated all forms of cocaine the same. Instead, we are left with a system that treats powder cocaine differently than crack cocaine. While an 18:1 ratio is less ridiculous than the 100:1 ratio that Congress created “out of thin air” in 1986, it still does not reflect any reasonable state interest. During the 1980s, there was increased crime and drug-related problems. However, in recent years crime has continued to fall, while studies continue to find that the difference between crack and powder are minor. Holding on to this system at all is unfortunate particularly because it does not treat all Americans consistently. The Fair Sentencing Act continues to perpetuate structural racism against minorities (particularly African-Americans) who are more likely to be convicted of crack cocaine related offenses. African-Americans only make up 6 percent of all Americans, yet they account for nearly 50 percent of those in prison. And in the Federal correctional system they receive sentences that on average are 20 percent longer than those given to Caucasian defendants for similar crimes (Marion, Oliver 2006, 409). Unfortunately this situation is at least partially driven by unfair sentencing drug mechanisms. Assuming that the courts continue to show deference to the “wisdom” of Congress we can expect a system where sentence disparity will continue to the detriment of African-American defendants.

Congress would be better off eliminating both mandatory minimums and the 18:1 ratio that was created in the Fair Sentencing Act. Does this mean that drug dealers are going to get off easily in the future? Unlikely, prosecutors will still try to ensure that those charged with crimes are convicted to protect both the public and their own careers. Removing these mechanisms would give judges more sentencing discretion, which better serves the state interest in protecting the public and the number of individuals sentenced to excessively long sentences. And, of course, in the future Congress would have the ability to readdress the situation as it did in 2010. At the state-level, sentencing commissions have found slight reductions in racially disparate sentencing following the enactment of guidelines (Tonry 2001, 36). The legal opinion of the Supreme Court and U.S.S.C. data suggest that federal judges take the guidelines provided by Congress seriously and usually give sentences based on them. Completely eliminating the guidelines could potentially result in the inconsistent application of justice, which is why Congress must eliminate disparities from them. Without this judges will continue to perpetuate a system of unfair outcomes for those involved with the criminal justice system.

If the exercise of the last 25 years has taught policymakers anything (as if they did not already know) it is that good policy is difficult to make in a highly charged political environment.

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Attempting sweeping reform without a firm grip on reality, the facts, and the consequences further tainted the Anti-Drug Abuse Act of 1986. It is hoped that the Congress and the White House eventually will learn these lessons and protect ordinary Americans from ill considered and foolhardy policymaking in the future. As Marc Mauer of the Seattle Post-Intelligencer wrote in 1997, “Hanging tough on crack sentencing may make for good politics, but it does not result in good crime control” (1999). In the coming years Congress should finally equalize sentences for crack and cocaine and stop purveying inequitable justice.

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Research Theory 11.1 (2003): 3-29. Bertram, Eva. Drug War Politics: the Price of Denial. Berkeley: University of California, 1996.Bourgois, Phillipe. “Crack and the Political Economy of Suffering.” Addiction and Research

Theory 11.1 (2003): 31-37.“Bureau of Justice Statistics Key Facts at a Glance.” Bureau of Justice Statistics (BJS). 12 Apr.

2011. Web. 12 Apr. 2011.Chambliss, William J. “Policing the Ghetto Underclass: The Politics of Law and Law

Enforcement.” Social Problems 41.2 (1994): 177-94. Chiricos, Ted, Kathy Padgett, and Marc Gertz. “Fear, TV News, And The Reality Of Crime.”

Criminology 38.3 (2000): 755-86.Federal Judiciary. United States Sentencing Commission. Special Report to the Congress:

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