Crack is Whack

I remember the first time I was told a client was busted for crack. I had no clue what they were talking about, and so I was told it was a concentrated form of cocaine, cooked down into a small, smokable rock, that gave a user a fast, strong high. I was told it made a user a bit crazy, because the high was so intense, and it was cheap, as a tiny vial sold for $5. It was cheap enough that the same guys who were buying pot could now spend the same nickel on crack and get a far better high.

What did I know? That’s what I was told.  It quickly owned a lot of guys on the street, and became a huge business for clients. And a violent business, as new players would fight for the old pot corner, with guns. Pot sellers rarely were violent. Violence was common amongst crack dealers, enough so that gangs like the Wild Cowboys were regularly having gunfights in the streets.

The myth of crack grew mostly because of the violence that arose around it. As a drug, it turns out that it wasn’t really any different than powdered coke, except that it could be purchased for pennies rather than hundred dollar bills the way it was sold at Studio 54 to rich white guys. That was what was really wrong with crack, that it was the suddenly the drug of choice uptown, where blacks and Hispanics used it, sold it, died over it.

So Congress, in its infinite wisdom, decided that anyone selling crack should be punished 100 times more harshly than anyone selling powdered cocaine.  It took a couple generations and tens of thousands of dark bodies to realize that it was a baseless, knee-jerk number. And so it was eventually changed, twice reducing the ratio as explained by Judge Merritt of the 6th Circuit in U.S. v. Blewett.


The Fair Sentencing Act was passed in August 2010 to “restore fairness to Federal cocaine sentencing” laws that had unfairly impacted blacks for almost 25 years.  The Fair Sentencing Act repealed portions of the Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio between crack and powder cocaine, treating one gram of crack as equivalent to 100 grams of powder cocaine for sentencing purposes.  The 100-to-1 ratio had long been acknowledged by many in the legal system to be unjustified and adopted without empirical support.  The Fair Sentencing Act lowered the ratio to a more lenient 18-to-1 ratio.  However, thousands of inmates, most black, languish in prison under the old, discredited ratio because the Fair Sentencing Act was not made explicitly retroactive by Congress.
Before the reduction in ratio was done, tens of thousands of defendants were sentenced under the original 100 to 1 sentencing scheme. Long, long sentences, because the drug equivalency tables in the Sentencing Guidelines said so. And then Congress changed its mind, but never said it was retroactive.  The defendants sentenced to forever wanted the chance to be resentenced under the new ratio, to see their spouses and children again before they died.  Congress left them hanging.

So a bunch of well-paid, well-fed, handsomely robed jurists parsed the technical arguments of retroactivity to determine whether tens of thousands of prisoners who were rotting in prison under a now-discredited ratio should get the chance to breathe free air again. They struggled with the legal technicalities, for retroactivity is an issue of legal nerdiness to the extreme, though the more straightforward answer would be that had Congress intended its sudden epiphany that its old law was facially and flagrantly unfair, it would have said so.

Congress didn’t say so, and assuming you believe that a republican form of government reflects the will of the people, then the people decided that all these dark people in prison under a sentencing scheme that was arbitrary and unfair should remain there despite having come to the societal realization that we blew it big time and can’t justify their imprisonment under any legitimate sentencing justification, then prison is where they must stay. 

The 6th Circuit in Blewett (great ironic name, right?) said enough.


In this case, we hold, inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause…

In this opinion, we will set out both the constitutional and statutory reasons the old, racially discriminatory crack sentencing law must now be set aside in favor of the new sentencing law enacted by Congress as the Fair Sentencing Act of 2010.  The Act should apply to all defendants, including those sentenced prior to its passage.  We therefore reverse the judgment of the district court and remand for resentencing.
As the dissent noted, Judge Merritt just ran roughshod over all those technical rules that apply to retroactivity, which could ruin the carefully crafted creature of jurisprudence by overlaying reason in the face of rubric.  The  Pittsburgh Post-Gazette wrote an editorial about the decision, saying the court ruled “wisely”:


It’s time to undo fully these unjust and irrational sentences, which treated powder cocaine users — who were typically white and often affluent — far more leniently than the mostly black and poor users of crack cocaine.

Did Congress intend, when enacting the Fair Sentencing Act, to leave these thousands of dark-skinned people in prison under a sentencing ratio of 100 to 1, a regime even Congress now concedes was unfair and irrational, because it feared the political backlash of releasing all these criminals that society so feared because the government spent 25 years vilifying them? Of course. Even if the lack of retroactivity was an omission, it wasn’t corrected in the next session. No, Congress meant to leave them there.

But it puts the lie to every conceivable justification for locking a human being away. We can only justify imprisonment if it serves a rational basis, not because our elected officials bought into a myth a generation ago, were too busy exploiting our fears for re-election and power to correct the error, and when they finally did, were too afraid of an ignorant backlash of their own making to fix their mistake logically.  And that’s why, supposedly, we have courts, to impose reason when elected officials are too cowardly to use it themselves.

The question now is whether Blewett will go en banc and be reversed, or be reversed on cert by the Supremes.  It makes far too much sense to be left alone.

H/T Doug Berman

9 comments on “Crack is Whack

  1. Bruce Coulson

    Ah yes, the ‘black drug’. Which was (at least on one occasion) sold to desperate white guy looking for a high. He was quite shocked when told by the arresting officers “Oh, that’s the black drug, you’re gonna to get hit with these penalties. Didn’t you get the memo?” Yes, even some of the police responsible for enforcing the laws recognized the inherent racism in the disparate sentences…

  2. Marc R

    Even when the law changes, it doesn’t. Amazing when a circuit court or scotus spends 100 pgs eviscerating the discrimination an old law perpetuates to the local courts then not applying it because “nobody said whether it’s retroactive.” So then retroactivity gets attacked by the AG/US Atty because it’s a “procedural” rather than “substantive” legal change, even though substantively people are still rotting in jail.
    And this isn’t judge crack/powder disparity. Look at Miller v Alabama where youngsters think they’re getting out of prison, or at least having the type of hearing Kagan promised, to only get thwarted with retroactivity.
    The funny thing though with your case cited is that 18-1 is still a hell of a sham.

  3. SHG

    The 18:1 ratio is, itself, a whole ‘nother matter. It’s absurd, but it was the compromise struck to get downward movement even though the change puts the lie to the whole sentencing regime.  And we pat ourselves on the back for having such a great system.

  4. BL1Y

    “The 100-to-1 ratio had long been acknowledged by many in the legal system to be unjustified and adopted without empirical support.”

    Is this meant to say that the 100:1 ratio was supposed to signify the relative seriousness of the drug, and that the ratio is unjustified on those grounds?

    If so, could the ratio be justified based not on the direct affects of the drug, but the collateral effects? Do you think it’d be fair for Congress to say “The drug, in itself, is not any more harmful than powder cocaine, but no one getting shot over powdered cocaine turf wars”?

  5. SHG

    That was certainly a strong factor in the original 100:1 decision, both in terms of building the myth of crack as well as another impetus for the war on drugs and crime. Shootouts in the street are big news, as well they should be.

    But then, the legally correct answer is punish the guys who engage in shoot outs for the shoot outs. Do not punish the guys who use or sell crack but don’t engage in shoot outs. And after the shoot outs died down in the early to mid 1990’s, it was still 100:1, so even if someone thought it prudent to sentence for a collateral wrong that the defendant didn’t commit, that justification ended long ago.

  6. Alex Bunin

    You might think “whack” is a pejorative term coined for substandard crack cocaine. However, I remember the term was used during the 1970’s, predating the common use of cocaine base, or the term “crack” by some years. Sorry, just reflecting upon my NYC high school experience.

  7. Honest Ahab

    .
    Once again proving the ol’ perverb:

    “Given an unlimited number of black pawns, even certifiable idiots believe they’re Bobby Fischer . . .”
    .

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