Irrational Intolerance

On October 27, 1986 Ronald Reagan signed Public Law 99-570 with the overwhelming bipartisan support of the 99th Congress.  Spurred by the June death of basketball star Len Bias, the Anti-Drug Abuse Act of 1986 hurried its way into federal law nearly as fast as crack emerged onto the national scene.  In prepared remarks that afternoon, the President gushed over his “great pleasure” in signing legislation intended to combat the “evil of drugs” before a group of Cabinet members, Administration officials, members of Congress, and private citizens in the East Room of the White House.  “The magnitude of today’s drug problem,” Reagan suggested, “can be traced to past unwillingness to recognize and confront this problem.”  In short, Reagan and other drug crusaders believed the nation to be all too tolerant of drugs, their users, and purveyors.

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The Only Person in the United States Speaking out Against Crack.

Thankfully, Reagan reminded his audience, he and Congress held “the vaccine that’s going to end the epidemic.”  That is, “tough laws” and a “dramatic change in public attitude.”  Draconian mandatory minimums effectively satisfied the first element to this equation.  To fully succeed though, government would need the help of the American people.  “We must be intolerant of drugs,” implored Reagan, “I ask each American to be strong in your intolerance of illegal drug use.”  Positioning his wife Nancy as a crusading pioneer, Reagan took a moment to note the popular success of her “Just Say No” campaign, crediting her sole work for turning “the fight against drug abuse into a national crusade.”  Evidently, the President and his wife remained unaware to the tireless work of grassroots community organizations whom had agitated for reform since early 1985 such as the Northwest Bronx Community and Clergy Coalition.  Perhaps this is because both the President and the First Lady denied NWBCCC requests to visit with its members, to see the crack problem at its epicenter a year prior.

Cloaked in New Right rhetoric of family values and firm law and order, Reagan announced the legislation as a “victory for safer neighborhoods, a victory for the protection of the American family.”  United together, Americans would now see to it that, “there’s no sanctuary for the drug criminals,” those “pilfering human dignity and pandering despair.”  Despite loading the bill with excessive fines and mandatory minimums for drug offenders, Reagan quipped: “This legislation is not intended as a means of filling our jails with drug users.”

A quick evaluation of the Anti-Drug Abuse Act of 1986 makes the previous statement extremely difficult to reconcile.  500 grams of cocaine, 5 grams of crack, or 100 kg of pot triggered a 5-year mandatory minimum sentence.  Moreover, 5,000 grams of cocaine, 50 grams of crack, or 1,000 kg of pot triggered a 10-year mandatory minimum sentence.  To make matters worse sentences doubled in cases where offenders had a prior felony conviction, a third strike earning a life sentence.  Sentences also doubled for those selling to, or using minors to sell illicit drugs.  Perhaps most devastating, no offenders would be eligible for parole. 

Historians, legal scholars, lawyers, judges and activists alike have long documented the problematic nature—particularly in terms of race—of the 100 to 1 disparity between powder cocaine and crack cocaine offenses.  As crack cocaine is effectively a mitigated, diluted form of powder cocaine, this rationale makes little pharmacological sense.  Unfortunately, as the ACLU lamented in a 2006 report, “lawmakers allowed emotion to overtake reason.”  Legislators defended the disparity because they believed that crack was significantly more dangerous than its antecedent, cocaine.  Additionally, they wrongly believed that crack was more addictive and more harmful to users and their offspring.  More to the point, the suspected user profile for crack looked much different than the stereotypical user of cocaine.  Because crack sold at a significantly lower price point, new users came to market.  These users were believed to be more violent and dangerous than users of other drugs.  Without debate or further study, Congress reasoned that poor nonwhite users of crack presented a significantly larger problem to public safety than white, often wealthy, users of cocaine.  One might assume, 100 times larger.

African Americans make up 15 percent of the country’s drug users, yet they account for 37 percent of those arrested for drug violations, 59 percent of those convicted, and 74 percent of those sentenced to prison for a drug offense.  More than 80 percent of the defendants sentenced for crack-related offenses are African American, despite the fact that more than an estimated 2/3 of crack users are white or Hispanic.  Prior to passage of the Act the average federal drug sentence for African Americans was 11 percent higher than for whites.  Four years later, the average federal drug sentence for African Americans was 49 percent higher.  Perhaps this is because, as the LA Times reported in 1995, not a single white offender had been convicted of a crack cocaine offense in federal courts serving Los Angeles and six Southland counties since 1986.  A 1992 U.S. Sentencing Commission survey showed that only minorities were prosecuted for crack offenses in more than half the federal court districts that handled crack cases across the country.  No whites were federally prosecuted in 17 states and many cities, including Boston, Chicago, Miami, and Dallas. Image

To limit our analysis of the Anti-Drug Abuse Act of 1986 to a narrow discussion of the cocaine/crack disparity would be a mistake.  The legacy of this omnibus package extends much wider than our nation’s poorly kept secret of racially inequitable mass incarceration.  In addition to warehousing scores of nonviolent offenders for extraordinarily long periods of time, the legislation created other new problems rooted in reforms to forfeiture law and the Freedom of Information Act.  Prior to 1986 forfeiture had a place in law enforcement.  Agencies were allowed to cover expenses directly incurred in specific investigations with proceeds from drug seizures.  The Anti-Drug Abuse Act of 1986 offered a dangerous expansion of forfeiture law, now allowing enforcement agencies to reinvest all the proceeds from forfeiture back into agency coffers, “for equipping drug law enforcement functions.”  This now meant that cars, houses, personal effects, cash, drugs, and even businesses could be re-purposed by the DEA or other law enforcement agencies.  Thanks to this expansion, the federal government now holds ownership rights to scores of lavish vacation homes, restaurants, strip clubs, recording studios, and even private jets.   By allowing enforcement agencies to keep all proceeds, we have unduly incentivized arrests and seizures for drug warriors.

Another major problem can be found in an amendment to the Freedom of Information Act which makes law enforcement largely exempt from standards designed to foster transparency.  Language in the bill is quite vague, allowing for various justifications to exempt law enforcement.  Perhaps the most frequently invoked is the exemption for any cases involving confidential informants.  In a recent post, I treated this issue, noting the frequent reckless endangerment of underage and nonviolent informants, as well as the uncertain scope of the problem.  While judges, prosecutors, defense attorneys, and some law enforcement officials have all conceded that the use of confidential informants is big, dangerous business; we do not have any concrete facts or figures.  This is precisely because cases using confidential informants were made explicitly exempt by a Freedom of Information Act amendment built into the Anti-Drug Abuse Act of 1986.

This, however, only begins to explain the problem.  Facing new and daunting mandatory minimums, drug offenders were only offered one way out under the Act—they could provide “substantial assistance” in another drug investigation.  Now, prosecutors and law enforcement could threaten couriers and low-level dealers and addicts with lengthy sentences to elicit their cooperation.  Moreover, they could now—under the auspices of new legislation—offer the offenders significant sums of money supplied by taxpayers for snitching.  As you might imagine, this led to a massive expansion in the use of informants.  Those removed from city streets and the hallways of police stations and courthouses have not likely noticed this development.  Citizens of poor urban communities have.  T-shirts, placards, bumper stickers, and underground DVD’s floating around said communities all admonish us to “stop snitchin’.”Image

It is difficult to locate precisely where drug policy crossed the threshold to an unabashed embrace of punitive logic.  It is clear though, that the Crack Era represents its most unfortunate excesses.  As early as 1951 federal drug laws introduced mandatory minimum sentences in response to rising concern over teenage heroin use.  Our elected officials came to their senses though, as new laws in 1962 replaced criminal prosecution with addiction treatment in the form of compulsory confinement, rightly turning to a public health approach.  A return to punitive logic came a decade later, with the 1973 passage of New York’s Rockefeller Laws.  This new “tough on crime” legislation offered a model for later punitive responses to come in the Crack Era.  These laws though—including the Anti-Drug Abuse Act of 1986—were explicitly intended to punish drug king pins and other higher-ups in the drug game.  So what went wrong?

Floor statements delivered by members in support of the Anti-Drug Abuse Act—of which there were many—suggest that Congress intended a two-tiered penalty structure for specific categories of drug offenders.  Reports from the Select Committee on Narcotics Abuse and Control corroborate this historical reality.  Congress intended to link the five-year mandatory minimums to what some called “serious” traffickers while the ten-year mandatory minimums remained reserved for “major” traffickers.  When asked about the intent of the legislation, Senator Robert Byrd lent credence to this assessment: “For the kingpins—the masterminds who are really running these operations—we require a jail term upon conviction.  If it is their first conviction, the minimum term is ten years… Our proposal would also provide mandatory minimum penalties for the middle-level dealers as well.  Those criminals would also have to serve time in jail.  The minimum sentences would be slightly less than those for the kingpins, but they nevertheless would have to go to jail—a minimum of five years for their first offense.”

Rather than write legislation which reflected their intentions to punish offenders for specific roles in the drug game, mandatory minimums were triggered not by the specific role of an offender, but instead, by drug type and weight.  Moreover, the weight thresholds are frighteningly low, allowing for the long-term imprisonment of petty dealers and drug addicts loosely involved in sales to support their habits.  For example, in fiscal year 2011, 74% of crack defendants faced a mandatory minimum.  Only 5% occupied a role of leader or manager of a drug operation.  To make matters worse, legislators doubled-down on their flawed logic in 1988, passing another pre-election piece of legislation intended to demonstrate a “tough” stance on crime and drugs.  The Anti-Drug Abuse Act of 1988 expanded upon an already wide net of potential offenders including all those directly or indirectly involved in a “continuing criminal enterprise.”  This meant that lookouts, touters, testers, and corner boys could now be charged with the full weight of seizure in a bust.  Six years after the 1988 bill, drug cases landing in federal prisons increased by 300%.  Between 1986 and 1998, this figure was up a total of 450%. Image

The United States currently houses more prisoners per capita than any other nation in the world, many of them nonviolent drug offenders.  By the early 1990s, criticism of both the Anti-Drug Abuse Acts of 1986 and 1988 began to surface.  In 1995 the U.S. Sentencing Commission report slammed the inequitable enforcement of mandatory minimums along racial lines.  Scores of Judges began to speak up.  Andre Davis, a Baltimore Judge with the U.S. Court of Appeals lamented: “Such laws do a disservice to the people accused of the crimes, to the judges before whom their cases are reviewed, to communities that are largely poor and black or Latino, and to society.”  Particularly damaging were the effects of mandatory minimums upon judicial discretion, shifting sentencing authority primarily to prosecutors through their charging decisions.  In an Op-Ed for the Baltimore Sun, Davis rightly criticized mandatory minimums for precluding judges like him from considering mitigating factors, a key to imposing fair and just sentences.

Shockingly, even the politicians that pioneered the move towards harsh mandatory minimums under the Anti-Drug Abuse Act of 1986 began to quietly change course.  Charles Rangel, a man who openly questioned the commitment of the Reagan Administration to punish drug offenders in 1985 and 1986 recently admitted the mistake, albeit without conceding his personal role in the matter.  Finally, in 2010, Congress too acknowledged their mistake.  The Fair Sentencing Act of 2010 reduced the powder cocaine/crack disparity from 100-to-1 to 18-to-1.  As the adjustment was made retroactive, 13,000 offenders found their sentences shortened.  Critics of the Act—including the Fair Sentencing Commission—demand that a 1-to-1 ratio be enforced.  Still though, a 1-to-1 ratio is technically irrational and unsound.  A drug offender charged with simple possession of 5 grams of crack still has less narcotics on his/her person than does an offender charged with 5 grams of cocaine.  What the crack offender actually has on his or her possession is less than 5 grams of cocaine, augmented in weight with baking soda and other adulterants.  Fact remains, even 1-to-1 won’t cut it.  In some ways, its only fitting that reform measures for legislation rooted in irrationality might themselves too be irrational.

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