Wednesday, July 28, 2010

Baby Steps

Congress passed the Fair Sentencing Act today. This law reduced the disparity between mandatory minimums for crack cocaine and powder cocaine. Previously, it took 100 times as much powder cocaine as crack to hit the same mandatory minimum sentence. That ratio has now dropped to 18:1. Why is that disparity important? The vast majority of crack cocaine users are black, while the vast majority of powder cocaine users are white. The mandatory minimums amounted to lawful sentencing discrimination against blacks. It's heartening to hear how bipartisan the support for this bill was. In the midst of all the bad news emanating from DC, news like this gives hope.


  1. The 100-1 ratio had a definite disproportionate impact on average sentences received by black drug defendants vs white drug defendants. But when you say "discrimination," that implies conscious intent, and if so, I don't think the record supports that implication.

    Part of the issue is whether you are defining things from the defendant's perspective or the victim's perspective. Black crack dealers were dealing to black inner city kids and teens. So harsher sentences for crack dealers could be seen as protecting the black community. There's a lot of historical evidence to support this as Congress's purpose -- see Randall Kennedy's excellent book, "Race, Crime, and the Law." One of the things I learned from his book is that two of the major proponents of cranking up the sentences for crack dealing with John Conyers and Charles Rangel. . . .

    That said, I personally think defendant-impact (as opposed to victim-impact) is the right approach. This may explain why David Baldus' celebrated study on race-of-victim impact on death sentences failed to move the Court. (Killers of blacks were less likely to get the death penalty than killers of whites. Discrimination? Perhaps, but since more murders are intraracial than interracial, this means that black defendants got fewer death sentences than they would have if there had been no race of victim impact.)

    Anyway, long story short: agreed that it's a good thing the 100-1 ratio has been reduced. It did not make pharmacological sense. But I'd be careful about impugning the motives behind the original disparity.

  2. I didn't mean to imply that the original drafters wrote the law and cackled "we're really gonna stick it to the black kids!" But it ended up having that effect.