Court Ruling on Crack Leaves the Fairness Issue Hanging

It is not surprising that the U.S. Supreme Court rejected a claim that African Americans had been singled out for crack cocaine prosecutions in Los Angeles. But while the justices’ 8-1 decision on Monday was expected, it nonetheless leaves unaddressed the larger issue underlying this case and others: the inherent unfairness of federal drug sentencing laws. Putting aside the defendants’ race, the blatant inequality exercised under these laws now looms large, seen by all but acknowledged by few.

The court rejected the claim of five black men that their arrest in 1992 on federal drug charges was part of a pattern of racially biased prosecutions by the U.S. attorney’s office here. Lawyers for the men argued that blacks are targeted for prosecution in crack cocaine cases, which carry particularly harsh punishment. Federal law specifies a 100-1 disparity between crack and powder cocaine in terms of the amounts needed to result in the same penalty; conviction of possession of five grams of crack, far less than an ounce, triggers a mandatory five years in prison, while it takes 500 grams of powder cocaine to warrant the same sentence. The disparity is based on the addictive nature of crack and the presumption that this form of the drug is more likely to be entwined with violence. This legal disparity is amplified, the defendants argued, by focusing on African American crack offenders.

While the court rejected the claim of racially biased prosecution in Monday’s ruling, it left the door open for defendants to try to show that “similarly situated defendants of other races could have been prosecuted but were not.” But that test will be nearly impossible to meet since it, in effect, requires the proving of a negative.

Make no mistake, illegal drug use remains a crisis of major proportions in this country. Long after Congress’ so-called war on drugs was launched, cocaine, LSD, marijuana and heroin still ruin the lives of users, destroy their families and bring violence and blight to the neighborhoods where dealers operate.

Yet Congress and the president are unwilling to concede the obvious--that the get-tough approach adopted in the 1980s is not working. This strategy has filled one in five federal prison cells with small-time drug offenders, most with no records of violence. The U.S. Sentencing Commission, which with Congress sets prison terms for drug crimes, has recognized the absurdity of this scheme and last year tried to eliminate the 100-1 disparity. The commission’s proposal, soundly, would have lengthened crack sentences when the case involved violence. But Congress and President Clinton, fearful of being labeled as soft on crime, blocked that move. Monday’s court ruling again draws the issue sharply: These federal drug laws are not only unfair on their face but pernicious in their application.