SENTENCING DISPARITY HURTS BLACKS

WASHINGTON -- Looking for a way to improve the responsibility-taking
among black fathers? Or to improve the economic standing and stability
of black families overall? Or for confronting these statistics: One of
every three black kids is being raised by a never-married mother; one
of 20 white children is being raised by a never-married mom.

One step to addressing this complicated problem is to rewrite a law
that forces federal judges to send people to jail for mere possession
of one type of drug, a substance more commonly used in the black
community than by whites. Crack cocaine is created by adding powder
cocaine to baking soda and water and then baking the mixture. The
result is broken into "rocks" and can be sold in very small
quantities. In the mid-1980s crack became a significant problem in
cities.

To try to get a grip on what some called the crack epidemic, Congress
set the penalty for possession of a tiny amount of crack ("tiny" being
the size of two sugar packets, enough for 10 to 15 doses) as an
automatic five-year prison sentence. Possession of the same amount of
powder cocaine generally gets probation; Congress has declared that
judges don't have to send a powder cocaine possessor to jail until the
amount of the drug reaches the 200-sugar-packet size, which produces
2,500 to 5,000 doses.

In other words, it takes 100 times more powder cocaine (the drug used
mostly by white people) to generate the same prison time the crack
(i.e., mostly black) user will get. The same disparity exists in the
congressionally imposed mandatory minimum prison sentences for sellers
of the two forms of cocaine.

Illicit drugs are used and sold about the same rate across all races
and ethnic groups in the U.S. Yet the proportion of blacks, especially
black men, sent to prison for drug offenses is dramatically different
from that of whites. Even accounting for the wonders a good defense
attorney can produce for a wealthier (white) client, the prison time
for crack- and powder-cocaine users and sellers is out of whack. The
average crack offender serves 3 1/2  years longer than the
average powder cocaine offender, according to an analysis by the
Sentencing Project.

What does this have to do with marriage and fatherhood and children in
unwed families? Here's one view:

"African-American women know how to control children in various ways,
from abortion to birth control, so they have one, perhaps no more than
two. Their birth rate is not much different from the birth rate of
white women.

"But the whole notion of marrying the father has very much disappeared
because in a real sense you marry somebody, disproportionate numbers
of whom have either been to jail and have a felony record or are
hustling and, God knows, on their way to jail.

"Even though a pregnancy occurs, the family will say, ‘Do not
marry him.' The way to look at such a man, ripe for such a charge or
with such a charge, is that he is unmarriageable. He is not deemed to
have the capacity to become productive in the society."

This was Eleanor Holmes Norton, the District of Columbia's House
representative, in a conversation with the Bush administration's drug
czar during a hearing Rep. Mark Souder conducted last year.

She said while Congress ignored what it had wrought -- not for racist
reasons but in an attempt to get a grip on the crack problem of the
1980s -- "a whole generation of black people are condemned now to
losing the family culture, and a whole generation of black children
are being raised with no father."

There are so few black men for middle-class black women to marry --
men without a record, capable of getting a job -- that "there is a
whole generation of black women who will never be married," she said.

Norton said she didn't have a simple answer to all that. "But I can
tell you one thing: That (drug-sentencing) disparity which sweeps up
boys and men without economic opportunity in the poorest black
communities is one cause."

Congress is starting to look at this. One approach would shrink -- but
not eliminate -- the disparity between crack and powder cocaine
sentencing rules. Another would make the penalties the same by
lessening the crack penalties to equal the powder cocaine penalties.

Souder, who has been at the forefront of drug issues the mid-'90s,
said he favors, in principle, the idea that crack and powder cocaine
sentencing rules should be the same. "The drug of choice of whites
should not be less severe than for the drug of choice that's more
likely to be African-American," he said at the hearing.

But Souder said he's not willing to back proposals to dramatically
loosen crack penalties. What has to happen to get Souder's support is
to increase the penalties for powder cocaine and somewhat decrease
crack penalties until the two come into alignment. And he thinks
that's unlikely to happen. "The second you say, ‘Increase powder
(penalties),' " he said last week, "they run."

Souder agrees that the statistics about black men in prisons are
irrefutable. But he's unwilling to lay that all at the door of the
crack-powder sentencing disparity.

For one thing, he said, there are darn few people in federal prisons
because of possession charges. Those who are, he said, are there
because they copped a plea; their real offense was drug dealing.
Souder also said the other factors include poverty and joblessness
among young black men -- contentions Norton would not disagree with.

And while Souder said he agrees that sometimes laws have unintended
consequences, he's not convinced that the sentencing disparities were
a complete flop. Crack usage has dropped in the past 20 years.

One consideration in this issue that neither Norton nor Souder
mentioned is to what degree the sentencing differential has affected
blacks' view of the U.S. justice system.

If, as many members of the Congressional Black Caucus argue, the black
community largely perceives crack and powder cocaine to be the same
drug that crack is a "black" drug while powder cocaine is a "white"
drug, then the sentencing rules that put a far harsher penalty on
crack can only inspire mistrust in the equity of the judicial system.

What is not in dispute is that a disproportionate percentage of black
men are in U.S. prison cells.

For reasons of fairness and to help lessen the mistrust in the legal
system, Congress would be wise to tackle this.