18 to 1: The Magic Ratio?

In case you haven't heard, the longstanding crack-cocaine disparity in the federal mandatory minimum statute (which dates back to 1986) has been scaled back by congress this week, in a bill that also includes the first repeal of a federal mandatory minimum sentence since Nixon was president. The bill now moves to the president's desk and is likely to be signed into law shortly. The blogosphere is buzzing about the significance of this, with most folks cheering for what they view as a long overdue move in the right direction for reducing disproportionately harsh criminal penalties on racial minorities. For those unfamiliar with the "crack-cocaine disparity", the 1986 federal law established a mandatory minimum prison sentence for crack that is 100 times more severe than the penalty for the same amount of powder cocaine. So possession of 5 grams of crack draws the same five year mandatory minimum penalty as does posession of 500 grams of powder cocaine. Under the new legislation passed this week, the disparity will now decrease from 100-to-1 to 18-to-1, so that a five year mandatory minimum now requires 28 grams of crack possession rather than the previous 5 grams. Support for the bill was largely bi-partisan, most likely due to the ratcheting costs of the federal prison population that has exploded over the past several decades. Prison growth rates are simply no longer sustainable, especially in this economy.

Some are arguing, however, that the legislation passed this week doesn't go far enough, and that no disparity should exist in the penalty for crack compared to the penalty for powder cocaine. I say that a disparity is most certainly needed, but that 18-to-1 is probably much more reasonable than 100-to-1, especially given our out of control prison population and the diminishing of U.S. crack markets since their peak in the 1980s. The reason that a disparity is needed is because the impact of crack on communities far outweighs the impact of powder cocaine. In essence the statement we as a society have indirectly made by electing our representatives who have passed these mandatory minimums is that crack was once 100 times more costly than powder cocaine to us as a society, but now crack is only 18 times more costly. I don't know what the right answer is. Perhaps an 18-to-1 disparity is still too high. Perhaps the 100-to-1 disparity was too high even during the 1980s. We can argue over the economics and the scaling of the cost-benefit ratio, but I don't think we can dispute that crack is significantly more costly that powder cocaine. Crack has a much more pronounced record of being associated with inner-city violence and community disintegration. I'm no pharmacological expert and have never used crack or powder cocaine, but from what I understand the pharmacological effects of crack are also more pronounced that the pharmacological effects of powder cocaine (although some will dispute this point). Crack is a more pure form of cocaine, in that the impurities that are typically cut into powder cocaine many times over are removed in crack cocaine. Crack also produces a faster and more intense high. Just in terms of accessibility, crack is also more accessible since it is stereotypically sold in open-air drug markets and is easily smokable.

The liberal pundants claim (and will continue to claim) that the crack-cocaine disparity represents a racist policy. I side with Heather Mac Donald's analysis in the Manhattan Institute's City Journal, which really sets the record straight on this issue. As Mac Donald points out, those who claim that any disparity in the penalty between crack and cocaine is an example of racism forget two facts: 1) the same federal mandatory minimum for 5 grams of crack also applies to 5 grams of meth which is a predominantly white/hispanic drug (only 2% of federal meth defendents are black), and 2) it was the black community who were first to sound the alarm on crack and call for the government to do something to fix it. On this second point, one needs only to recall the proliferation of stories about crack babies and crack moms during the 1980s (remember the movie New Jack City?). We were told by the media that crack was a devistating drug and was absolutely ravishing our inner-city communites. But more to the point, we were being told this story by African-American leaders. The Harlem congressman Charlie Rangel (yes, the same one in the news this week for political corruption) held a press conference alongside Jesse Jackson to bring attention to the dire consequences of crack, and then voted for the original 1986 mandatory minimum. Others supporting harsh penalties for crack included Brooklyn congressman Major Owens and Queens congressman Alton Waldon. As Waldon noted back then, "for those of us who are black this self-inflicted pain is the worst oppression we have known since slavery." So the charge of racism just doesn't make sense. The criminal justice system was told by minority communities to do something about crack, and then called racist when it tried to do something.

I don't think one can diminsh the impact of having a higher criminal penalty for crack in terms of obtaining convictions through plea-bargaining and in terms of pressuring co-defendants to testify in serious criminal offense cases either. I think this has to be a tool in the bag of tricks available to prosecutors for targeting serious criminal activity tied up in crack markets. I think even preeminent liberal drug scholar Mark Kleiman agrees on this point, although he would likely argue that it is relatively rare that it is necessary for this tool to be used by the prosecution.

So an 18-to-1 disparity certainly seems much more reasonable to me at this point in time, but having no disparity does not yet make sense to me. I offer this as a tempered view, compared to that being presented by most other writers on this issue who are at the same time overjoyed that the disparity has been reduced but continue to persist in their claims that any disparity is racist, cruel, and should be completely eliminated. What I don't know is what the magic number is in terms of a disparity, or under what precipitating conditions it should be changed down or up. We do know that the severity of a sanction is much less effective than the certainty and swiftness in which it is delivered. Is 5 years in prison for 28 grams of crack too severe? Can we squeeze out the same bit of deterrence with less? Who knows.