Tough Penalties Found to Affect Blacks Most
The Boston Globe July 24, 1994, Sunday, City Edition
Four years ago, Roderick Piggee was convicted of conspiring to sell about 1,500 grams of crack. Because federal sentencing guidelines distinguish crack from powder cocaine, Piggee received 17 1/2 years in prison. The sentence for the same amount of powder cocaine would have been a maximum of five years, less than a third of the penalty for crack.
“There is no reason why one form of cocaine should be sentenced harsher than another,” Piggee, 30, said in a telephone interview from the federal prison in Atlanta. “But we are serving more time than people who have been convicted of murder. I’ve been in for four years now. If I had killed someone, I would be home by now. But no one wants to listen to us.”
Enacted by Congress in the late 1980s to curtail the crack epidemic and escalating street violence, the sentencing guidelines have had the effect of incarcerating what one federal judge described as an “entire generation” of African-Americans.
The so-called “crack statute” has generated heated criticism, with state and federal judges refusing to follow the guidelines and imposing shorter prison terms. One judge declared the longer sentences “cruel and unusual punishment.”
Under the federal guidelines, a person caught with five grams of crack, the weight of two pennies, faces a mandatory five-year sentence and a maximum of 20 years. A similar amount of powder cocaine is a misdemeanor that carries no mandatory minimum sentence and a maximum penalty of one year in jail.
A person would have to possess 500 grams of powder cocaine to receive the same punishment as someone possessing five grams of crack, a 100-to-1 ratio. “The law must be changed,” said Rep. Charles Rangel, Democrat of New York, who introduced a bill last year in an unsuccessful attempt to eliminate some of the disparities.
“It’s clearly unconstitutional and way out of line to be such a different level of crime for basically the same type of drug. No one can justify the 100-to-1 ratio. Clearly we are talking about different neighborhoods, not different crimes.”
An inescapable consequence of the statute is racial disparity. The vast number of people convicted for powdered cocaine are white; the overwhelming majority of those convicted for crack are black. Justice Dept. study Over a four-month period in 1992, the US Sentencing Commission reported that in cocaine powder convictions, 45.2 percent of the defendants were white, 29.7 percent were black and 23.3 percent were Hispanic.
But in crack cocaine convictions, 92.6 percent of the defendants were black, 4.7 percent were white and 2.6 percent were Hispanic.
Cambridge-based Abt Associates analyzed federal statistics from Jan. 20, 1989 to June 30, 1990. The study, commissioned by the Justice Department, concluded that on average, black offenders incarcerated during this period for cocaine offenses had sentences that were 41 percent longer – 21 months – than for whites.
“If legislation and guidelines were changed so that crack and powdered cocaine traffickers were sentenced identically for the same weight of cocaine, this study’s analysis suggests that the black/white difference in sentences for cocaine trafficking would not only evaporate but would slightly reverse,” the Abt study stated.
Crack, frequently sold on inner-city street corners, is made by combining cocaine powder with heat and baking soda and is usually smoked. Cocaine powder is usually sniffed and can be dissolved in water and injected intravenously.
Though the less expensive crack produces a quicker high and is thought by many to be more addictive, no medical evidence exists to suggest that there is any significant pharmacological difference that would justify the difference in federal sentencing.
“Cocaine is cocaine,” said Dr. Charles Schuster, the former director of the National Institute of Drug Abuse, now at the Addiction Research Center in Baltimore.
But proponents argue that the violence associated with crack justifies harsher sentencing.
“The policy is not irrational,” said Terrence Farley, the former director of the National Drug Prosecution Center, a law enforcement research center in Alexandria, Va.
“The impact of crack has been horrible in the African-American community. There should be a difference in sentencing. Unfortunately, more blacks are getting arrested because they tend to operate in these open-air markets, and especially because they tend to disrupt the lives of so many in the community.”
But law enforcement officials across the country say the impact of the law on the flow of crack has not been great. Judges resist guidelines While Congress has been slow to respond to outcry over the crack statute, state and federal judges are increasingly refusing to abide by the federal sentencing guidelines, specifically criticizing mandatory minimums.
Last March, US Supreme Court Justice Anthony M. Kennedy assailed them before a congressional hearing on the Supreme Court budget: “I simply do not see how Congress can be satisfied with the results of mandatory minimums for possession of crack cocaine.”
His critique followed two lower federal cases this year that held that the crack sentences were unconstitutional. On Jan. 26, US District Judge Louis Oberdorfer ruled that the mandatory sentences violated the Eighth Amendment’s prohibition of cruel and unusual punishment.
One case involved four defendants and the sale of cocaine to undercover Drug Enforcement Administration agents. Two of the defendants initially delivered powdered cocaine, but the agents demanded that the cocaine be converted to crack. Agent Mark Ross testified that the agents insisted on crack because they knew that crack carried heavier sentences.
According to court testimony, those two men then recruited what Oberdorfer called “bit players” to make the conversions. Those bit players, Karen Blakney and Charles Campbell, were crack addicts and had criminal records. One of them was paid $ 100 by a DEA agent; the other was given “a little piece of crack cocaine.”
Despite their limited role in the conspiracy, Blakney faced 10 years, eight years longer than if sentenced for powder, and Campbell faced 20 years, more than 17 years longer than if sentenced for powder.
Oberdorfer sentenced the two who had made the sales under the stiffer federal guidelines, but sentenced Blakney and Campbell as if they had been caught with powder.
In a similiar decision on Feb. 11, US District Judge Clyde S. Cahill of Missouri ruled that the statute violated the 14th Amendment guarantee of equal protection under the law.
The statute “has been directly responsible for incarcerating nearly an entire generation of young black American men,” declared Cahill, who refused to impose stiffer sentences on a defendant.
Cahill blamed Congress for passing a law that though “well-intentioned” suffered from “unconscious racism.”
The most recent attack on the crack statute came last week when US District Judge Harold H. Greene of Washington, D.C., trimmed five years from a defendant’s sentence. A role of DEA agents Greene was particularly incensed at the role of DEA agents in demanding that a defendant deliver cocaine in crack form rather than in powder. “The ability of a law enforcement officer to enhance a defendant’s sentence through his own actions to an enormous degree strikes at the very heart of our system,” Greene wrote.
The mandatory minimums and sentencing guidelines, intended to eliminate disparities in federal sentences and severely punish crack dealers, went into effect on Nov. 1, 1987.
Sensational media accounts chronicling the crack epidemic during the summer of 1986, coupled with the anticrime atmosphere on Capitol Hill, fueled the push for the mandatory minimums. Outrage over Len Bias
The late House Speaker Thomas P. O’Neill Jr. was particularly energized. Back in his district during the July Fourth recess, outraged constituents bombarded O’Neill with their horror over the cocaine overdose of Len Bias, a Boston Celtic first-round draft pick.
When he returned to Washington in early August, the speaker gave his congressional colleagues five weeks to conclude all committee work on a comprehensive crime bill.
“It was more like the floor of the Stock Exchange when there is a rush to sell or buy a particular commodity,” said Eric Sterling, who served as counsel to the House Judiciary Subcommittee on Crime. “It was sheer panic. Everyone felt that the spotlight for solving the drug crisis was on them. And if it wasn’t, they wanted it to be on them.”
No separate hearings were held on the crack statute, and it was written into the comprehensive crime bill of 1986 with only about 3 1/2 hours of discussion, observers said.
“In some sense, legislators viewed the crack epidemic the same way the Germans saw the Jews,” Sterling said. “If only they could get rid of those people using crack, then we would have a better society. All of our other problems would go away. The crime bill was the distillation of every fear, anger and resentment that members of Congress felt about their impotence to solve the scary things in life.”
The sentiment on Capitol Hill then, as now, was to be tough on crime. As an example, Sterling said, “The 100-to-1 ratio was originally a 50-to-1 ratio in the crime subcommittee’s bill, and was arbitrarily doubled to symbolize redoubled congressional seriousness.” Congressional efforts to eliminate the differences in sentencing has resulted in little change. Besides Rangel’s efforts, Rep. William Hughes, Democrat of New Jersey, introduced legislation last year to amend the omnibus anticrime bill and reduce sentences for crack. But he withdrew his measure after disagreement over where to establish the level of punishment for both crack and powdered cocaine.
“When I realized that it wasn’t going to pass, I modified it to create an amendment to ask the US Sentencing Commission to look at ramifications and make recommendations.”
That amendment is part of the crime bill currently being debated in Congress. But Hughes worries that the political climate works against changing the statute.
“No one wants to be perceived as reducing a penalty and thus being soft on crime,” he said. “It has nothing to do with the merits.”
Journalist & Author Howard Manly 