Drug Law Disparities Must Go

Benjamin Todd Jealous is part of Change.org's Changemakers network, comprised of leading voices for social change. Mr Jealous is the 17th President and Chief Executive Officer of the NAACP.

Fear, misinformation and haste are a recipe for bad policy. Throughout our nation’s history, some of the most discriminatory government actions, or those with the worst unintended consequences, were born from uneasy times. Some, like the Black Codes or the McCarthy-era anti-Communist hearings, have been rightly judged by history as shameful over-reactions. Others, sadly, are still in effect.

In 1986 -- at the height of the inner-city crack cocaine epidemic and the fears it sparked -- Congress rushed the passage of legislation that required mandatory minimum prison sentences of at least five years for the possession of just five grams of crack cocaine. The same law, though, said that someone would have to possess five hundred grams of powder cocaine to receive a comparable prison term -- a ratio of 1 to 100. This massive sentencing disparity between crack cocaine and powder cocaine set in motion the mass incarceration of African Americans and Latinos. With mandatory minimums and measures such as three-strikes laws, the trend has spread to working-class whites, as well.

There’s no reason our society should shoulder this injustice. Mandatory minimum sentencing violates Fourteenth Amendment guarantees of equal protection, since the law’s burden falls disproportionately upon racial and ethnic minorities. While in 2006, more than 66% of crack cocaine users were white, a full 82% of those sentenced under the federal crack cocaine law were African Americans -- even though blacks were estimated to represent less than 15% of crack users.

Now, though, Congress has an opportunity to correct this unjust law by passing the Fairness in Cocaine Sentencing Act of 2009 (H.R. 3245), sponsored by Rep. Congressman Bobby Scott (D-VA), and the Fair Sentencing Act of 2009 (S. 1789), sponsored by Sen. Richard Durbin (D-IL). These measures would eliminate disparities in sentencing law, as well as the five-year mandatory minimum prison term for first-time possession of crack cocaine.

Congressional action is long overdue. Over the last three decades, the U.S. prison population has more than quadrupled, growing from about 500,000 to 2.3 million today. That growth is largely due to the incarceration of hundreds of thousands of African Americans and Latinos, many for nonviolent drug offences.

The original intent of the law, convicting drug kingpins, has been perverted. The law removes judges’ discretion to consider a defendant’s role, addiction or mitigating circumstances. What’s more, there are no alternatives to incarceration for first-time offenders such as drug treatment. Under the law, the only way someone can receive a reduced sentence is by providing information that would assist the government in prosecuting others, which puts low-level offenders at a disadvantage, because few of them are able to provide facts and name names. By contrast, that is something the high-level dealers can do, so very few of them go to prison. The overwhelming majority of those locked up are nonviolent offenders -- street dealers, drug mules, addicts and women whose boyfriends or partners convince or coerce them into participating in the drug trade. We have needlessly lost millions of citizens to our prison system, with lives ruined long after the debt to society has been paid.

The disparity in federal drug laws is beyond discriminatory: it is also wasteful. The annual price tag to incarcerate America’s prison population is $70 billion. By filling prisons with our young African Americans, Latinos and others, the criminal justice system is robbing our communities of their futures. Meanwhile, prisons are diverting resources from education and essential social services. We’d be much better off -- and save money, too -- if we sent many offenders to drug rehabilitation facilities instead of prison.

Finally, our current approach to drug enforcement doesn’t make us safer. In 2008, 735,000 ex-offenders were released from prison. Many of them were more damaged and disadvantaged than when they were first locked up. But few communities have the resources to reintegrate them.

It’s time to ditch this policy based on fear and haste. There are smarter and safer ways to address fight drug problems, and one good first step is for Congress to pass fair sentencing legislation.

Photo credit: bloomsberries