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A Win for Fairness

It’s too easy to focus entirely on the sordid tussles and name-calling of our political climate, so let’s take a step back and reflect on something unambiguously good that happened recently in the federal government: On Aug. 6, President Obama signed into law the Fair Sentencing Act of 2010, which reduces the 100:1 sentencing disparity between crack cocaine and powder cocaine to 18:1, along the way dramatically raising the amount at which mandatory minimum sentences are invoked.

Lest anyone think of this as some radical measure that squeaked through on wheeling and dealing when no one was looking, the bill was passed unanimously in the Senate and by voice vote in the House.

It was a compromise—many feel the disparity ought to be removed entirely, and the new rules be made retroactive. But it was a big move nonetheless.

Turns out nearly everyone—Republicans and Democrats, law enforcement and racial justice advocates, social workers and budget-minded bureaucrats—could agree on this: There is no legitimate reason to treat the two forms of the same drug so wildly differently, and there never was. But there were disastrous and unfair consequences: Crack is much cheaper than powdered cocaine, and it was most prevalent in low-income African-American neighborhoods. The enactment of mandatory minimum five-year sentences for possession of 5 grams of crack (while dealers with under 500 grams of powdered cocaine had no mandatory minimums) took communities that were reeling from the violence and health effects of this new drug and further eviscerated them. The incarceration of a disproportionate number of these neighborhoods’ young people did incalculable damage.

Even though on the one hand it’s incredibly heartening, it’s also funny, in a sad way, to hear big shots now talking about this as an obvious move. It’ll save approximately $42 million per year, they say, and allow resources to be redirected toward actually going after dealers. Extra penalties can always be added for actual violent acts, illegal guns, etc., as well they should be.

This is all true. This has been true since 1986. This was true when Clinton and congress then refused to take it up, for fear of looking soft on crime. What’s that saying about how all truth is first ridiculed, then violently opposed, then accepted as self-evident?

Why did it take so long? Justice moves slowly, said Asa Hutchinson, former DEA head, on PBS’ NewsHour. True, but especially since the law is not retroactive, that’s a bitter pill for those whose lives and communities suffered through this.

The 100:1 sentencing rules came about in a time of panic. And if there’s a clear lesson to be learned from this, it’s that tossing fairness and reason and facts out the window when you feel threatened is a bad idea. It’s very hard to undo.

But it’s very common. Remember “crack babies”? They were a part of the panic and also part of the justification for treating addicts as criminals (“See what they’re doing to their babies!”). They also didn’t exist.

Turns out that cocaine use by a pregnant woman has no more effect on a newborn than smoking cigarettes (which is not nothing, but hardly what was described as the supposed effects of crack). The jerking and quivering images we were shown were premature babies detoxing from the opiates their mothers also took (no lasting damage from that either, though withdrawal sucks). The most long-term damage these kids suffered was from prematurity (due to malnutrition and lack of prenatal care, which criminalizing addiction contributes to) and perfectly legal, though dangerous, maternal alcohol abuse. Well, that and the stigma of being labeled a crack baby and being expected to grow up to be retarded pathological liars.

Crack babies as we knew them were essentially a fabrication, based on a misreading of a small inconclusive study, but once a sensational media, opportunistic politicians, and panicked public got a hold of the idea it became conventional wisdom, which time and again has proven very very difficult to uproot, even with scads of scientific results. (For the full story, look up “The Demon Seed that Wasn’t” in City Limits, March 2004.) Even now, in the days of unanimous votes for fairer sentencing and the waning influence of crack, it’s still lodged in the back corners of a generation’s worth of skulls. I found the full, inaccurate crack-baby description on the first addiction FAQ I came to when researching this column, and it’s not alone.

When something difficult is happening—whether it’s a drug epidemic, an economic collapse, or a war—it’s terribly hard to keep a level head, to be the skeptic who cares about fairness, evidence, and constitutional protections. It’s hard to be the media outlet who passes on the sensationalistic story, image, or headline, or who chooses to devote the column inches to the longer more complex story that requires attention to understand rather than just punching the adrenal glands and pulling at heartstrings.

So let’s celebrate that a long overdue move proved that common sense can sometimes, out of the spotlight, still win out without getting bloodied first. And let’s think, as we do so, about what’s going on now that if allowed to stand we’ll quietly undo in 25 years, shaking our heads ruefully at its wreckage.

—Miriam Axel-Lute

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