Only Congress Can Eliminate the Source of the Problem

Finally, some good news for drug policy.

In the history of the civil rights movement there are probably only a handful of moments in which the decision of a few policymakers propelled significant change forward. Think of President Truman’s decision to integrate the military or the U.S. Supreme Court’s decision in Brown v. Board of Education. Our nation recently witnessed another such moment when the U.S. Sentencing Commission voted unanimously to apply recent sentencing reductions for crack cocaine offenses retroactively. Although the decision is only a partial step towards racial equality, it reunites thousands of families and sets the stage for Congress to enact major reform.

Predictably, Chicken Littles in the Bush administration have insinuated that 20,000 people will be released from prison tomorrow. That’s just shock and awe. Retroactivity would actually be staggered over several decades, and the largest one-year release (possibly 2,500 people in the first year) is a drop in the bucket compared to the 650,000 people released from state and federal prisons last year because they had served their time. Federal courts will also have the power to deny a sentencing reduction to people who pose a risk to society.

The Sentencing Commission’s decision came only a day after the U.S. Supreme Court ruled that federal judges can sentence individuals below the guideline recommendation in crack cocaine cases. The combination of both rulings puts enormous pressure on Congress to change the statutory mandatory minimums that punish crack cocaine offenses 100 times more severely than powder cocaine offenses. That sentencing disparity is responsible for appalling racial inequities in the criminal justice system. Although the majority of crack users and sellers are white, more than 80 percent of people incarcerated in federal prison for crack are black.

Ironically, the biggest obstacle to eliminating the crack/powder disparity is probably not the Bush administration or law enforcement but House Democratic leadership. While the Senate Judiciary Committee is set to debate three reforms bills early next year, no hearings have been scheduled yet in the House. Many rank-and-file Democrats support reform, but leadership is reportedly reluctant to even debate the issue. Their silence gives the impression they don’t care about reducing racial disparities in the criminal justice system.

The struggle to bring some justice to federal cocaine laws is just one part of a bigger struggle to undo the damage being done by the war on drugs. In a recent op-ed in New Orleans’ Times-Picayune, former ACLU Executive Director and current Drug Policy Alliance President Ira Glasser makes the case that drug prohibition is one of the major civil rights issues of our day.

“[T]he racially discriminatory origin of most [drug] laws is reinforced by the disparate impact they have on racially targeted drug felons. In the states of the Deep South, 30 percent of black men are barred from voting because of felony convictions. But all of them are nonetheless counted as citizens for the purpose of determining congressional representation and electoral college votes. The last time something like this happened was during slavery, when three-fifths of slaves were counted in determining congressional representation.

“Just as Jim Crow laws were a successor system to slavery in the attempt to keep blacks subjugated, so drug prohibition has become a successor system to Jim Crow laws in targeting black citizens, removing them from civil society and then barring them from the right to vote while using their bodies to enhance white political power in Congress and the electoral college.”