"Scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question," Alexis de Tocqueville wrote in 1835.
And these days, it sometimes seems, scarcely any judicial question arises that is not resolved, sooner later, into a racial question.
So it is that the draconian federal penalties for nonviolent drug offenses have finally attracted a bit of public notice-not because they are called "savagely severe" by people like Richard Posner, the Reagan-appointed judge of the U.S. Court of Appeals for the 7th Circuit, but because they are called racist by people like Jesse Jackson.
Some of these penalties are racist. But that’s not the heart of the problem. The heart of it is that Congress has adopted-and President Clinton and his equally gutless attorney general, Janet Reno, are perpetuating-a regime of grotesquely excessive mandatory minimum prison terms for drug defendants of all races.
This regime has wrecked the lives of thousands of small-time, nonviolent drug offenders. It has done little to dent the drug problem; makes no sense as policy; and is being maintained by politicians for the most cynical of political reasons.
The especially egregious unfairness of one aspect of this sentencing regime-its requirement that each gram of crack cocaine be treated as though it were 100 grams of powder cocaine-was obliquely acknowledged both by Clinton, in his Oct. 30 announcement of his deplorable decision to reject the U.S. Sentencing Commission’s proposal to eliminate the 100-1 ratio, and by Reno, in an Oct. 26 press conference.
But when asked whether she would endorse any change at all in the 100-1 ratio, Reno mumbled, "I want… to hear from all concerned as to what the appropriate ratio might be," and "I have not been presented yet with what I think are the appropriate factors that could enable me to reach that decision." Huh?
Here we are, more than 1,000 days into the Clinton administration, and Janet Reno still has nothing to say about how to fix an exhaustively studied sentencing regime that she admits is unfair.
Reno’s explanation was, of course, hogwash. Her real message was this: "The president is scared to death of doing anything that might (however falsely) be called soft on crime, and I am a political hack, here to do his bidding. You won’t catch me sticking out my neck to avoid complicity in destroying thousands of lives that might be salvaged by a less barbaric system."
The conceit underlying the overall regime of federal drug sentencing is the notion that the multitude of factors that should be involved in determining each defendant’s degree of culpability, and appropriate penalty, can be legislatively predetermined and congealed into rigid rules. Congress’ primary method of doing this has been to calibrate prison terms to different types and weights of drugs and, in the case of crack, to choose a number (currently 100) by which the weight is multiplied to reflect the drug’s perceived special dangers.
It’s a stupid, destructive game that has purged federal drug sentencing almost entirely of common sense, has made it impossible for judges to fit the penalty to the individual crime and criminal, and produces such harsh results as to shock the consciences of almost everyone who sees it in operation, including most federal judges, conservative and liberal alike.
Take Judge Alex Kozinski of the 9th Circuit. In a recent interview (by me, for The American Lawyer), he was asked, "What do you think are some of the most grievous injustices in American society today?"
He thought for a minute, and said this: "To some extent, I think we tend to overpunish in our criminal system. Very often we put people away for 20, 30 years-sometimes more-for nonviolent crimes, usually minor drug crimes…. [I]n fact, while sitting [specially] as a district judge, I’ve imposed sentences on people that I thought were draconian. And there was nothing I could do about it. They qualified under the sentencing law, and basically their lives were snuffed out-or at least any meaningful life."
Kozinski was compelled in one case to send a man named Fred Hagler to prison for 20 years, without parole. Hagler’s crime: acting as a middleman in a small-time dealer’s sale of 2.3 ounces of crack, for $1,350, to undercover agents.
Hagler got 10 years because the crack weighed more than 50 grams (about two ounces), and another 10 years because prosecutors cranked into the formula one of his two minor prior convictions for simple possession of cocaine. He would have gotten life without parole-more than most murderers- except that prosecutors gave him a break (!) by disregarding the other prior conviction.
This for a 37-year-old doer of odd jobs who eked out a meager existence with his common-law wife and three children in a Los Angeles ghetto, and who was wiretapped asking a customer to lend him $60 so he could go down to Toys-R-Us and buy his little boy a birthday present.
It is the Fred Haglers of this world who get caught and packed into federal prison, only to be replaced by legions of ever-younger men, women, and children with nothing better to do than sell crack.
And yes, the Fred Haglers of this world are black-almost all of them. According to a May 21, 1995, article in The Los Angeles Times, "[n]ot a single white, records show, has been convicted of a crack offense in federal courts serving Los Angeles and six Southland counties since Congress enacted stiff mandatory sentences for crack dealers in 1986…. while hundreds of minorities have been locked up in federal prison."
Nationwide, black defendants accounted for 88 percent (and non-Hispanic whites for just 4 percent) of federal convictions for crack cocaine distribution in 1993, even though die majority of crack users are white. So black cocaine defendants receive far longer sentences on average than similarly situated white cocaine defendants.
Nor is this just a matter of blacks being the ones who happen to peddle cocaine in its most dangerous form. Plenty of whites sell crack, but Reno’s crack-busters target inner city defendants-which means blacks and Hispanics-almost to the exclusion of whites.
It’s not so much that Congress consciously rigged the system for the purpose of punishing blacks more harshly. But the crack sentencing regime is racist, in the sense that Clinton, Reno, and Congress insist on perpetuating the failed laws in the face of these huge disparities with no offsetting justification.
President Clinton himself asserted on Oct. 16 (in his speech on the day of the Million Man March) that "something is terribly wrong" when almost one-third of black men in their twenties are either in jail, on parole, or on probation, and when "that is a disproportionate percentage in comparison to the percent of blacks who use drugs in our society."
Yet two weeks later, Clinton made sure that a disproportionate percentage of blacks would continue filling up federal prisons, when he signed a bill blocking the Sentencing Commission’s proposal to eliminate the 100-1 crack-to-powder ratio.
The commission had recognized that crack might pose special dangers, and had accordingly proposed to fine-tune penalty enhancements for some crack defendants, particularly those with a record of violence. But that wasn’t tough enough for Clinton.
It should have been. The dangerousness of crack as compared with powder cocaine has been greatly exaggerated. It’s true that smoking crack produces more rapid and intense highs-and perhaps more addiction-than does snorting powder cocaine, and that the crack market involves small-dose sales to low-income users and much violence among sellers.
But as the Sentencing Commission found in a 242-page report: Powder cocaine, when injected, is just as addictive as crack and more deadly; it is easy to convert powder cocaine into crack; "cocaine is cultivated, processed, imported, and distributed almost exclusively in the powder form at the higher levels of the drug distribution chain," and therefore, the crack penalties often have the perverse effect of "punishing low-level (retail) crack dealers far more severely than their high-level (wholesale) suppliers."
In addition, neither crack nor powder cocaine "excites or agitates users to commit criminal acts," or leads them to "commit large numbers of violent acts to raise money to buy drugs," according to the commission’s report. And powder cocaine has the same effects on fetuses as crack. In short, crack has gotten far more than its share of the blame for inner city ills that would still be frightening if crack had never been invented.
But our president, while posturing about ending crack’s "devastating impact on … inner city communities…and families," cynically-chases the white hard-line-on-crime vote by wreaking further devastation on those same families. He is locking up their sons, husbands, and fathers, and some of their mothers and daughters, for the sake of some votes. That’s the barbaric, racist, Bill Clinton-Janet Reno drug policy. To borrow from an old saying of Vietnam War vintage, they are destroying the ghetto in order to save it-or, rather, to save themselves.