The Common Good

The Fair Sentencing Act: A (Small) Step Towards Making Things Right

I want to tell you a story. It's a tale about drugs, prison, race, and justice (or the lack thereof).

It starts in the 1980s. During that decade, crime was rampant, and many believed they knew who the culprit was: crack cocaine. It was widely agreed that crack cocaine was an extremely dangerous drug leading its users to commit wanton acts of violence. Spurred by this, Congress passed the Anti-Drug Abuse Act of 1986, and President Reagan quickly signed the measure. This law established a 100-to-1 disparity in sentences for individuals caught with crack cocaine as opposed to powder cocaine, even though both stem from the same product (the leaves of the cocoa plant) and contain the same active ingredient. Thus, someone caught with 5 grams of crack (the equivalent weight of two sugar packets) receives a mandatory 5-year prison sentence whereas that same person would have to be caught with 500 grams (around a pound) of powder cocaine to receive the same sentence. If that same individual is found with 10 grams of crack? 10 years in federal prison.

It is a gross understatement to remark that imposing such harsh, unforgiving sentences is overly punitive. But what's worse? Congress was wrong. Scientific evidence has unequivocally debunked the myth that crack cocaine is more dangerous than powder cocaine or that it leads to more violent tendencies among users. So thousands of people have been carted off to prison and forced to deal with the life-altering consequences of a long prison sentence even though we now conclusively know there is no valid penological reason for doing so.

Yet that's not the end of the bad news in this story. Although the vast majority of crack cocaine users are white, African Americans account for approximately 80% of those convicted in federal courts for crack cocaine offenses. As Senator Richard Durbin (D-Ill) has commented: "The sentencing disparity between crack and powder cocaine has contributed to the imprisonment of African Americans at six times the rate of whites and to the United States' position as the world's leader in incarceration." Simply put: the crack/powder cocaine sentencing disparity was created based on misguided policies and beliefs and has been enforced in a manner that unfairly targets and penalizes African Americans, exposing the nefarious role that racism plays in our criminal justice system.

The Fair Sentencing Act of 2010, which has garnered support from all along the political spectrum, seeks to narrow the disparity in sentences for crack and powder cocaine from 100-to-1 to 18-to-1. The measure was passed unanimously by the Senate in March and approved by the House of Representatives this week, paving the way for President Obama to sign the bill into law (he has previously spoken out against the disparate treatment of crack and powder cocaine users). If he does so, a decisive step will have been taken to correct this fundamental miscarriage of justice.

We can't stop here though. The sentencing disparity within the Fair Sentencing Act (18-to-1) is fairer but still unjust. It is still based on antiquated, racist ideas about drugs and crime that have not only been thoroughly discredited, but that have also decimated African-American communities by disrupting families and careers with exceedingly long prison sentences for minor drug possessions. It is worthwhile to applaud Congress and President Obama (assuming he signs the bill) for their actions -- but our representatives in Washington and around the country should pledge to continue reforming sentencing laws until they are truly just. Crack and cocaine users should be treated equally; there should be no disparity at all.

The "tough on crime" mentality that has pervaded our nation makes it incredibly easy -- and perhaps even tempting -- to think that locking up people and throwing away the key is the best way to promote our collective safety. However, our nation's policy of oppressive crack sentences has, for the most part, been directed at low-level users and sellers, not the kingpins who are financing and sustaining the drug trade, meaning that drugs continue to pour into our communities. All we are left with are laws and policies that are unjust, unfair, and enforced in racially discriminatory manners as well as the terrible consequences they leave behind. They should be repealed.

The Christian community played an instrumental role in lobbying for the passage of the Fair Sentencing Act -- many Christians publicly condemned the crack/powder cocaine sentencing disparity; Pat Nolan, the vice president of the Christian prison outreach and criminal justice reform organization Prison Fellowship penned a thoughtful and persuasive op-ed in support of the bill in The Washington Times. Let's keep up the good work, and ensure that the Fair Sentencing Act isn't the end of this story.

portrait-johnathan-smithJohnathan Smith is a New York-based lawyer. He also serves as a youth minister at Gethsemane Baptist Church.

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