Critics target the federal crack penalties because of the fact that crack defendants are more likely to be Black. In 2006, eighty-one percent of federal crack defendants were Black, while only twenty-seven percent of federal powder-cocaine defendants were. 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 without further investigation.
However the actual number of crack sellers sentenced in federal court each year is an enlightening piece of information in the discussion. In 2006, 5,619 cases 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. The approximately 5,600 crack defendants a year who enter the system fail to account for the 562,000 Black prisoners in state and federal facilities at the end of 2006—or the 858,000 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.
Federal methamphetamine-trafficking penalties are nearly identical to those for crack: possession of five grams of meth carries a mandatory minimum five-year sentence. In 2006, the 5,391 sentenced federal meth defendants–nearly as many as the crack defendants–were fifty-four percent White, thirty-nine percent Hispanic, and two percent Black. There seems to be no protest against the federal meth laws for being either anti-Hispanic or anti-White.
Nevertheless, the federal crack penalties dominate discussions on race and incarceration because they are presumed to be concrete examples 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.
Critics blame drug enforcement for rising racial disparities in prison. Again, the facts say otherwise. In 2006, Blacks were 37.5 percent of the 1,274,600 state prisoners. If prisoners incarcerated for drug offenses were removed from the prison population, the percentage of Black prisoners would drop to 37 percent—half of a percentage point–hardly a significant difference.
5. Sentencing Phase:
The question of whether the trial and sentencing stages of the justice system are plagued by racism has been studied extensively for several decades. As early as 1983, the Panel on Sentencing Research–which was established by the liberal-leaning National Academy of Sciences (NAS) on request of the U.S. Justice Department—reviewed more than seventy studies on sentencing patterns and concluded: “Our overall assessment of the available research suggests that factors other than racial discrimination in the sentencing process account for most of the disproportionate representation of Black males in U.S. prisons …” Further, the NAS reported that it had found “no evidence of a widespread systematic pattern of discrimination in sentencing.”
In 1985 the Journal of Criminal Law and Criminology concluded that a disproportionate number of blacks were in prison not because of a double standard of justice, but because of the disproportionate number of crimes they committed. That same year, a federal government statistician conducted an exhaustive study of Black and White incarceration rates and found that “even if racism [in sentencing] exists, it might explain only a small part” [of the black overrepresentation among prison inmates]. In a 1987 review essay of the three most comprehensive books examining the role of race in the American criminal-justice system, the journal Criminology concluded that there was little evidence of anti-black discrimination. In his 1987 book The Myth of a Racist Criminal Justice System, William Wilbanks presented a summary of “what is known about race and sentencing,” and wrote:
- “Extralegal variables (for example, race, sex, age, socioeconomic status of defendant) are not as predictive of sentence as legal variables (for example, type of crime, strength of evidence).”
- “The Black/White variation in sentences is generally reduced to near zero when several legal variables are introduced as controls.”
- “There is no evidence that Black judges are less likely than White judges to send Blacks to prison or to give them lengthy terms.”
The most exhaustive, best-designed study of sentencing patterns ever conducted—a 1990 analysis of more than 11,000 recently convicted criminals in California—found that the severity of sentences depended heavily on such factors as prior criminal records, the seriousness of the crimes, and whether guns were used in the commission of those crimes; race was found to have no effect whatsoever. Likewise, a 1991 RAND Corporation study found that a defendant's racial or ethnic background bore little or no relationship to conviction rates; far more important than race were such factors as the amount of evidence presented, and whether or not a credible eyewitness testified.
In 1993 a Justice Department study tracked the experience of more than 10,000 accused felons in America's seventy-five largest cities found that Black defendants actually fared better than their White counterparts: 66% of Black defendants were actually prosecuted, versus 69% of White defendants. Among those prosecuted, 75% of Blacks were convicted, as compared to 78% of Whites. Also in 1993, a criminologist found that when comparing Black arrests for homicide and the presence of Blacks in prison for that crime, African-Americans were significantly underrepresented among incarcerated inmates. Liberal criminologist Michael Tonry wrote 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.”
A 1996 analysis of 55,000 big-city felony cases found that Black defendants were convicted at a lower rate than Whites in 12 of the 14 federally designated felony categories. This finding was consistent with the overwhelming consensus of other, previous, well-designed studies, most of which indicated that Black defendants were slightly less likely to be convicted of criminal charges against them than White defendants. In 1997, liberal criminologists Robert Sampson and Janet Lauritsen undertook a painstaking review of the voluminous literature on charging and sentencing, and concluded that “large racial differences in criminal offending,” explained why proportionately more Blacks than whites were in prison—and for longer terms.
There is a grim and objective statistic, one not part of histrionic outcry: Between 1976 and 2005, the number of blacks murdered per 100,000 per year varied from a high of 37-38 in 1976 to a low of 20 per 100,000 in 2005 (with an unfortunate jump in the numbers to 40/100,000 between 1990 and 1995). That is in contrast to a fairly steady rate of Whites being murdered of 3-5/100,000/year during the same period of time. The great majority of the deaths in Blacks came from Black-on-Black violence, not from police inflicted death.
There is most certainly a double standard on the part of the American public, the Black community, and the news media. A few minutes after a large Black youth robbed a convenience store, then accosted a police officer and was killed in a justifiable homicide—according to a grand jury that saw and heard evidence for months—there was a nationwide, even world-wide, violent protest which was excused by law enforcement, governments, and a majority of the general public because of the color of the young man’s skin. Trayvon and Michael are household names as icons of the injustice suffered by people of color in the system despite no finding of fault on the part of the White persons involved. A frighteningly high number of White people were murdered by Black men in 2014—facts established. There has been no public outcry, no rioting in the streets, no equivalent of Al Sharpton rabble rousing in protest over these killings. The news media have been all but silent about them; it is simply not politically correct, therefore not newsworthy or profitable to speak of them.