Ethnic Bias And Mandatory Minimums Essay, Research Paper

In recent years, drug policy has been dramatically impacted by an upsurge in popularity for Mandatory Minimum policies, especially in terms of sentencing for drug offenses. This policy has become a hotly debated topic, with its implications reaching beyond those that affect just the drug dealers and users. As a result, a new debate has begun, specifically whether mandatory minimum sentences have a racial or ethnic bias. I plan to focus my paper on whether it can be determined that mandatory minimum sentences have a racial or ethnic bias in terms of their use as a social policy, specifically with attention to cocaine/crack offenses. Are disproportionate amounts of African-Americans affected by this kind of legislation? Before I can discuss what this debate is, it is important to understand what mandatory minimums are, and whom they affect.

Mandatory minimum legislation comes in response to the American public’s desire to crack down on those who sell and use drugs. Their popularity has been codified by biased media reports showing an unfair, stereotyped profile of drug users in American, usually a picture of a poor, underprivileged, dangerous and violent black inner-city dweller. In the 1980s, the Congress and many state legislators decided that the sentencing system was out of date and in need of serious change. The system lacked the validity needed to stimulate public confidence and operate as a serious deterrent to commit crimes. The Sentencing Reform Act (SRA) of 1984 created a Sentencing Commission to determine guidelines for sentencing. The purposes of sentencing as they determined were:

+ “To reflect the seriousness of the offense, to promote respect for the law and to provide just punishment,

+ To afford adequate deterrence to criminal conduct,

+ To protect the public from further crimes of the defendant

+ To provide the defendant with educational or vocational training, medical care, or other correctional treatment.

Since these guidelines were issued in 1984, Congress and state legislatures have passed mandatory sentencing legislation aimed specifically at drugs and violent crimes. This kind of legislation can be seen as the judicial arm of the United States “War on Drugs.” Mandatory minimums require that judges hand down a predetermined sentence for possession or sale of drugs, provided that the offender meets certain criteria. “For example, federal law requires that a person convicted of possessing half a kilo or more of cocaine be sentenced to at least 5 years in prison” The criteria that cocaine offenses are judged by to determine mandatory sentencing are as follows:

+ “The weight of the mixture containing a detectable amount of the controlled substance,

+ Whether the detected substance is powder or crack cocaine,

+ The number of prior federal/state drug felony convictions,

+ Whether it is a matter of simple possession or possession with intent to manufacture, distribute or dispense.”

Criteria and guidelines for mandatory sentencing for other varieties of drug offenses follow along similar lines as the guidelines for cocaine offenses.

Mandatory minimums have been popular with political figures who want to appear “tough on drugs,” with bipartisan support in many cases. For these proponents of such legislation and policies, the certitude and harshness of mandatory minimums make these sentences a strong deterrent for possession or sale of drugs. These programs also work to achieve goals of incarceration, including punishment of the convicted, keeping released convicts from committing more crimes, as well as the deterrence factor for those not in prison. The general American populace does not view prisons as “correctional institutions”, whose goal is to rehabilitate inmates. Instead, they view prisons as a place to punish those who have committed a crime, to keep these offenders isolated from society and discourage others from following this life of crime. Mandatory minimums are seen as a way to equalize the sentences given to those guilty of sale or possession of illegal drugs, to reduce trial costs, and to be “tough on drugs.” However, one must asks whether these policies are really doing what the judicial system is intended to do, “let the punishment fit the crime.”

Many groups and individuals oppose the use of mandatory minimum sentencing. They base their arguments on many different aspects of these policies. One argument that they advocate is the idea that mandatory minimums remove decision making power from the hands of the judge, limiting his/her ability to weigh each case on its individual merits. They also contest that mandatory minimums have placed many normal, law-abiding citizens into the prison system unjustly, with monumental consequences for their friends and family, simply for “getting mixed up with the wrong crowd.” They contend that mandatory minimums do not equalize sentencing decisions, because drug traffickers and minor offenders are often grouped together under these arbitrary laws. Often times, the “kingpins” are ignored so that an example could be made of a lesser offender. They argue that mandatory minimums are an unjust way to handle the drug problems that our country faces. They also argue that the sentencing differences placed upon powdered an crack cocaine have an inherent racial and class bias, that has in turn affected disproportionate amounts of minorities and the poor.

In order to understand opponent groups’ argument that crack and powdered cocaine disparities in terms of sentencing are unjust, we must first understand what these differences are. As a repercussion of the emergence of crack cocaine in the 1980s, and the violence and destruction that went along with this drug, “crack…has been singled out for severe punishment under mandatory minimum legislation.” The problem with targeting crack instead of powder cocaine for harsher sentencing guidelines is that those most gravely affected by this legislation are not the distributors, who convert the powder cocaine into its base form (crack). Instead, this kind of designation affects those who are dealing crack on the streets or abusing the drug. According to a study published in the New York Times, there appears to be a significant racial bias in sentencing disparities: “more than 90 percent of defendants are African American in crack cocaine cases, compared with slightly over 25 percent involving powder.” Since crack is more widely sought and sold by African Americans and other, poorer minority groups, some opponent groups have fought to eliminate the apparent prejudice against blacks in current mandatory minimums by eliminating the law’s separation of crack cocaine and powder cocaine.

Surprisingly enough, the Federal government tends to agree with this increasing belief that Mandatory Minimum sentences, in terms of crack/cocaine offenses, may have significant racial or ethnic disparities. In December of 1993, following lengthy Congressional hearings regarding Mandatory Minimum sentencing in terms of race and drug offenses, the US Department of Justice, under the auspices of the Bureau of Justice Statistics, published a report entitled, Sentencing in the Federal Courts: Does Race Matter? This report outlined and evaluated the trend towards Mandatory Minimums, and also evaluated the transition to the Sentencing Guidelines established in 1984’s Sentencing Reform Act, and how this transition has affected racial/ethnic minorities in the criminal justice system. This report analyzed “racial and ethnic disparities in sentences imposed on Federal offenders before and after implementation of the sentencing guidelines…and the mandatory minimum imprisonment provisions of the Anti-Drug Abuse Act of 1986.” The Bureau of Justice Statistics looked at white, Hispanic and black offenders, looking for patterns among these groups and “simulating the sentences that would have been imposed under alternative sentencing schemes.” Interestingly enough, some of their major findings included:

+ On average between 1986-1988, white, Hispanic, and black offenders all received similar sentences in Federal District Courts.

+ Between January 20, 1989 and June 30, 1990, some startling differences began to emerge.

–85% of Hispanic and 78% of black offenders were sentenced to imprisonment, compared to 72% of white offenders.

–On average, black offenders sentenced to prison had sentences that were 41% longer than those of whites imprisoned for similar crimes.

–Hispanic prisoners’ sentences did not differ significantly than the average sentence for whites.

+ 83% of Federal offenders jailed between January 1989 and June 1990 were black, jailed primarily for crack cocaine sales and crack-related offenses.

–The average sentence imposed for trafficking crack was twice as long as the sentence imposed for trafficking powdered cocaine. (141 months for crack, compared to 79 months for powder cocaine.

–Consequently, black offenders imprisoned for selling/distributing crack cocaine received sentences 30% longer than white offenders. (96 months for blacks compared to 70 months for whites)

This report also asked “whether the guidelines [mandatory minimum sentencing] have failed to have the desired effect of producing greater uniformity,” a claim voiced by many supporters of Mandatory Minimum legislation. The study aimed to address whether Mandatory Minimum sentencing has had a detrimental effect on the judicial system by limiting the amount of leeway a judge has to determine sentence in drug cases. In order to understand fully how the Sentencing Reform Act and other cases like it have affected, and perhaps promoted, sentencing disparities, the authors of this study also analyzed trends among whites, blacks and Hispanics in other offenses unaffected by the SRA of 1984. In studying the differences, racial disparities do seem to appear, especially in terms of the black population, the severity of their punishment and the length of their sentences. The authors of this report recommend that “modifications of specific laws and/or guidelines would essentially eliminate the racial/ethnic differences,” in terms of sentencing for crack and cocaine offenses. It is clearly demonstrated through this report that the Federal Government has been made aware of racial/ethnic disparities that have appeared under Mandatory Minimum sentencing, but apparently no measure have been taken to correct these discrepancies in treatment.

The Federal Government is not the only organization to conduct research into the effect of Mandatory Minimum sentencing guidelines in terms of crack and cocaine offenses on the American public. The RAND organization, an independent, nonprofit research group that analyzes public policy, conducted a 1997 study into the cost-effectiveness of Mandatory Minimum Drug sentences. While this report did not necessarily focus on the implications of these sentencing guidelines on different racial/ethnic groups in the United States, it present thorough analysis of the fiscal impact and effectiveness of Mandatory Minimum drug sentences. Their findings were based upon mathematical-modeling of various economic and social factors, as well as detailed analysis of the effects of such policies, coming to a number of conclusions.

First of all, the RAND group concluded that it is more cost effective to expand traditional policing budgets (more cops, more cars, more money, more resources, etc.) to address drug problems in this nation than it is to extend prison sentences for offenders. “IF the objective is to increase the stringency of drug enforcement in a manner that maximizes the benefits obtained per dollar spent, expanding conventional-enforcement budgets is preferable to passing laws increasing sentence length.” The researchers then go on to state that from their research it can be determined that “on average, arrest and conviction impose greater costs on dealers per taxpayer dollar spent than does incarcerating dealers.” They cite that the American public does not often recognize or understand this point. However, while increasing sentence length does not appear to be cost-effective on the whole, there exists a “class of drug dealers for whom long sentences…are more cost-effective than conventional enforcement” The problem with this “class” of dealer is that they are substantially more difficult for Federal Agents to apprehend and arrest. Therefore, it is difficult to say whether Mandatory Minimums are cost-effective on the whole, when they do impact a serious level of drug dealers, the “king pins” who command high quantities and prices for drugs like crack and cocaine.

An additional conclusion put forth by the RAND group includes the idea that treatment “is more cost-effective at controlling drug use, drug spending, and drug-related crime than is either conventional enforcement or long sentences, whether targeted through mandatory minimum ‘trigger’ provisions or applied generally.” This is not a new claim about the “War on Drugs.” Studies have shown for years that it is much more cost effective to treat the root cause of drug problems through treatment and other therapy, than to incarcerate non-violent offenders to longer prison sentences. Treatment of drug users reduces the demand for the drugs, returning dollars that would have been used on drugs to other parts of the economy.

Other groups have examined the relationship between crack-related crime and consumption, specifically studying Miami, Florida between 1987 and 1991. In the 1995 report, Crack Use, Crime by Crack Users, and Ethnicity, Dorthory Lockwood, Anne E. Pottiger, and James A. Inciardi looked at the potential factors relating crack-use to crime among different racial/ethnic groups, including African-Americans, Whites and Hispanics. Their research aimed to examine whether the media portrayal of the poor, inner city, black crack addict was a true presentation, and what the relationship between crime, crack and ethnicity were. They aimed to examine whether certain factors led to a predisposition towards crack use and abuse, and the related crimes that go hand in hand with drug abuse. Their findings indicated that “the relationships among crime, crack-use and ethnicity are complex.” There did not appear any concrete patterns in users, among factors like age, gender, treatment status and ethnicity. Other factors that affect crack-use and related crime include “poor employment history, residence in high drug/crime-rate neighborhoods, and limited economic resources even to obtain food or housing.” The primary point brought forth by this analysis is the implication that the media portrayal of the “black/crime/crack” connection is based on fallacies and stereotypes, and does not accurately represent who crack users in this country are. According to the findings of this study, blacks are no more predisposed to crack use and crack-related crime than whites or Hispanics. Other factors play a bigger part in trends of use and related crime, but apparently ethnicity is not as significant a factor.

Various reports have shown from multiple perspectives on this issue that Mandatory minimums sentencing guidelines are negatively affecting racial/ethnic groups in this country, are based on unfair stereotypes perpetuated by the media, and are economically unsound. With this in mind, I would like to propose some recommendations that could dramatically change the way these sentencing guidelines affect racial/ethnic groups in the United States, as well as affecting the pocketbooks of American taxpayers in hopefully positive ways.

First, I believe that we should continue to follow the sentencing objectives outlined in the 1984 Sentencing Reform Act. These guidelines, if consistently pursued, provides for positive rehabilitation and treatment of convicted offenders. We want our judges to dole out punishment that does, indeed, “reflect the seriousness of the offense.” However, I do not believe that this includes “one-size-fits-all” style sentencing, mandating specific punishments for specific crimes, without allowing judges to weight the merits of the case individually. I believe that this is a disservice to those involved in the criminal justice system, and the practice of uniformly assigning sentences is contrary to the whole concept of weighing the merits of each case. Therefore, eliminate the mandatory sentencing laws while aiming to pursue the sentencing guidelines established in 1984.

Second, I believe that more money should be poured into preventative measure for addressing crack use and related crime. We should recognize drug problems as health issues in addition to being societal concerns, and act accordingly. Alternative treatment facilities that emphasizes getting clean and perhaps even vocational training, as well as dealing with aspects of punishment may be a more effective and cost-efficient way to address the same problems that mandatory minimums aim to address, though apparently less efficiently and cost effectively. In addition to investing more money into creation of treatment facilities (that also aim to rehabilitate and punish offenders), I believe that more money should be spent preserving and updating traditional law enforcement techniques and tools. This may help to more effectively address the issue surrounding our current drug problems from a legal perspective.

A third recommendation that I would make would entail eliminating the current sentencing disparities between crack cocaine and powder cocaine. This current discrepancy is ludicrous and based on the fallacy that crack cocaine is a more potentially dangerous drug than powder cocaine. I believe that this discrepancy has an inherent racial/ethnic and socioeconomic bias, based on the fact that crack cocaine is more readily available to poorer people, and especially racial/ethnic groups in economically depressed areas. To judge crack cocaine with more scrutiny and severe punishment is to ignore that cocaine is just as dangerous a drug, though more readily available to higher income brackets. Current sentencing policy instructs that offenders with 5 grams of crack cocaine be sentenced just as long as an offender found with 500 grams of powder cocaine. That doesn’t seem right to me.

The issue of Mandatory Minimum sentencing for drug offenses is complex as is, but when one pauses to consider the impact that this has on the poorer Americans, or different populations of American ethnic groups, then the issue becomes even further complicated. Some will estimate that since 1987, 75% of new offenders incarcerated in Federal prisons are drug offenders, and the average length of their sentence has increased by 22 percent. They further allege that the effect of mandatory sentencing on the black community has been especially alarming: “the number of black inmates has increased 55%, while white inmates increased by only 31%.” I believe that while Mandatory Minimums may have sounded effective and fair in theory, it has been demonstrated by various research groups that these sentencing policies have been anything but effective (in terms of cost or social impact) or equitable. It is clear that something must be done to repair the damage caused by Mandatory Minimums, especially in terms of crack/cocaine offenses. Perhaps an even better plan would be to eliminate these policies altogether, and start anew.