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Is the Criminal-Justice System Racist? Part 2

Another criminologist—easily as liberal as Sampson—reached the same conclusion in 1995: “Racial differences in patterns of offending, not racial bias by police and other officials, are the principal reason that such greater proportions of blacks than whites are arrested, prosecuted, convicted and imprisoned,” Michael Tonry wrote inMalign Neglect. (Tonry did go on to impute malign racial motives to drug enforcement, however.) The media’s favorite criminologist, Alfred Blumstein, found in 1993 that blacks were significantly underrepresented in prison for homicide compared with their presence in arrest.

Unfair drug policies are an equally popular explanation for black incarceration rates. Legions of pundits, activists, and academics charge that the war on drugs is a war on minorities—a de facto war at best, an intentional one at worst.

Playing a starring role in this conceit are federal crack penalties, the source of the greatest amount of misinformation in the race and incarceration debate. Crack is a smokeable and highly addictive cocaine concentrate, created by cooking powder cocaine until it hardens into pellets called “rocks.” Crack produces a faster—and more potent—high than powder cocaine, and it’s easier to use, since smoking avoids the unpleasantness of needles and is more efficient than snorting. Under the 1986 federal Anti-Drug Abuse Act, getting caught with five grams of crack carries a mandatory minimum five-year sentence in federal court; to trigger the same five-year minimum, powder-cocaine traffickers would have to get caught with 500 grams. On average, federal crack sentences are three to six times longer than powder sentences for equivalent amounts.

The media love to target the federal crack penalties because crack defendants are likely to be black. In 2006, 81 percent of federal crack defendants were black, while only 27 percent of federal powder-cocaine defendants were. In 2013, 87 percent of federal crack defendants were black. Since federal crack rules are more severe than those for powder, and crack offenders are disproportionately black, those rules must explain why so many blacks are in prison, the conventional wisdom holds.

But consider the actual number of crack sellers sentenced in federal court each year. In 2006, 5,619 were tried federally, 4,495 of them black. From 1996 to 2000, the federal courts sentenced more powder traffickers (23,743) than crack traffickers (23,121). It’s going to take a lot more than 5,000 or so crack defendants a year to account for the 862,000 black prisoners in state and federal facilities at the end of 2014—or the 975,000 black prisoners in custody overall, if one includes the population of county and city jails. Nor do crack/powder disparities at the state level explain black incarceration rates: only 13 states distinguish between crack and powder sentences, and they employ much smaller sentence differentials.

The press almost never mentions the federal methamphetamine-trafficking penalties, which are identical to those for crack: five grams of meth net you a mandatory minimum five-year sentence. In 2014, the 8,372  sentenced federal meth defendants (nearly as many as the crack defendants) were 54 percent white, 39 percent Hispanic, and 2 percent black. But no one calls the federal meth laws anti-Hispanic or anti-white.

Nevertheless, the federal crack penalties dominate discussions on race and incarceration because they seem to provide a concrete example of egregious racial disparity. This leads to a commonly expressed syllogism: crack penalties have a disparate impact on blacks; disparate impact is racist; therefore, crack penalties are racist. This syllogism has been particularly prominent recently, thanks to the U.S. Sentencing Commission’s 2007 decision to lighten federal crack penalties retroactively in the name of racial equity.

The press has covered this development voraciously, serving up a massive dose of crack revisionism aimed at proving the racist origins of the war on crack. Crack was never a big deal, the revisionist story line goes. But when Boston Celtics draft pick Len Bias died of a crack overdose in 1986, the media went into overdrive covering the crack phenomenon. “Images—or perhaps anecdotes—about the evils of crack, and the street crime it was presumed to stoke” circulated, as theNew York Times archly put it in a December 2007 article. A “moral panic” (Michael Tonry’s term) ensued about an imaginary threat from a powerless minority group. Whites feared that addicted blacks would invade their neighborhoods. Sensational stories about “crack babies” surfaced. All this hysteria resulted in the unnecessary federal crack penalties.

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