Win for Fairness
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
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.