In the same way liberal politicians and commentators were slow to respond to the racist use of the Willie Horton imagery, they were slow to recognize the racially disparate impact of the crack/powder-cocaine sentencing scheme. Their inaction may have been partly due to fear of being portrayed as “soft on crime.”51 “Crack” became a code word for “Black drug use” and was accompanied by images of violence and lawlessness. This, in turn, became a rallying cry for many conservative politicians.
The focus on crack also refocused law enforcement policies. Because crack was sold in open-air markets or readily identifiable “crack houses” and the extremely high penalties for small amounts made convictions or guilty pleas easier, local, state, and federal law enforcement efforts almost single-mindedly focused their efforts on crack. In addition to the focus on other collateral sanctions, such as loss of housing, food stamps, or the inability to apply for a wide variety of occupations unrelated to the crime, politicians also embraced mandatory minimum sentencing for drug offenders. This added to the incarceration explosion that took place in the late 1980s and early 1990s. Although the nation experienced increases in many serious crimes, between 1985 and 1995 the number of drug offenders sent to prison increased 478 percent as compared to 119 percent for all other crimes.52 Incarceration became the primary focus of the drug war. Although much of the War on Drugs was fought at the local level, the pattern of large numbers of prosecutions followed by extensive incarceration was evident in the federal system as well. Federal drug prosecutions increased by close to 100 percent from 1982 to 1988, while prosecutions for other crimes rose only 4 percent.53
In 1994, U.S. District Judge Clyde Cahill found the 100-to-1 disparity between sentences for crack cocaine and powder cocaine to be unconstitutional. The case was significant in that Judge Cahill openly called the guidelines “racially biased legislation.”54 He went on to identify the reason for the drafting of the legislation, writing that panic based on media reports designed to incite “racial fears” was the catalyst for generating this policy.55 The Eighth Circuit Court of Appeals reversed Judge Cahill and chastised him for questioning the racial animus of the legislation.56 In one of the most significant academic contributions to the crack-versus-powder equal-protection debate, David Sklansky points out that the rhetoric surrounding the passage of the 1986 statute, with Congress stating that “big shouldered Trinidadians … [and] bands of young Black men … peddling crack near unsuspecting White retirees,” suggested a racial animus in its intent.57 Sklansky further points out that in the Eighth Circuit reversal of Judge Cahill’s decision, the appellate court reasoned that Congress did not have “racial animus, but racial consciousness that the problem in the inner cities was about to explode into the White parts of the country.”58
As the Federal Sentencing Guidelines were implemented there were outcries from virtually every sector. Politicians, state and federal judges, lawyers, and even two United States Supreme Court justices have called for the review of the discrepancy between crack and powder cocaine. A number of those challenging the disparity have pointed to the obvious racial impact of the sentencing scheme. The challenges have taken the form of legal complaints alleging a lack of equal protection under the law, as well as challenges on policy grounds. Before his election, in response to a question about the sentencing disparity, George W. Bush stated, “[I]t ought to be addressed by making sure the powder cocaine and the crack cocaine penalties are the same. I don’t believe we ought to be discriminatory.”59 Ultimately, not only did Bush’s administration refuse to proffer legislation leveling out the penalties for crack and powder cocaine, but President Bush’s deputy attorney general also told the United States Sentencing Commission that “[t]he current federal policy and guidelines for sentencing crack cocaine offenses are appropriate” and that crack “traffickers should be subject to significantly higher penalties than traffickers of like amounts of powder [cocaine].”60 Again, despite a lack of scientific data, many continued to allege that crack is a more potent form of the drug. Others pointed to the violence associated with crack trafficking—but this is a distracting issue, because the Federal Sentencing Guidelines have existing means to address the use of firearms in the commission of criminal offenses.
But there have been more vociferous criticisms. In November 2003, United States Supreme Court Justice Anthony Kennedy gave a speech at the American Bar Association annual meeting criticizing these sentencing disparities.61 In a speech at the Harvard Kennedy School of Government, Supreme Court Justice Stephen Breyer also criticized mandatory minimum sentences.62 Notwithstanding all of the criticism and the pointing to racial disparities in creating, enacting, and enforcing the sentencing guidelines, little has been done to address the issue. And so we have continued to overincarcerate people of color for drug offenses.
Very little political support has come to communities of color subjected to overincarceration, the collateral consequences, and the accompanying policies. The nation might have looked for leadership from seemingly liberal, of-color, or other politicians elected on platforms suggesting a fairer shake for people of color, but that has not been the case.63 In fact, the impact of sweeping huge numbers of young African American, Asian, and Latino men and women into the criminal justice system was the creation of a political vacuum. Removing young people who may have been eligible to vote from a position where they could exercise that right effectively silenced their voices and neutralized any political capital that they might have had. The wide gap between the middle class and the “permanent poor” increased and the War on Drugs only helped to widen the cultural, political, and representational divide.
Throughout the decades of the 1980s and 1990s politicians of color largely remained mute in the national debate on drugs and crime. When the War on Drugs was at its rhetorical height, conservative and Republican politicians had cornered the market on tough-on-crime positions. Liberal and mainstream Democratic politicians often did not (and still do not) have adequate responses to this rhetoric. Politicians, who routinely asked for impact studies on environmental legislation, never required in-depth examinations of the impact of criminal justice legislation. Instead, the sanctions became more draconian, and collateral consequences increased unchecked for decades. In many communities, the victims of crime were people of color as often as the alleged perpetrators of crime were, further complicating things for politicians of color. Even toward the end of the 1990s, as the crime rates gradually inched downward and the crack epidemic began to subside, drug arrests and prison populations continued to rise.64 In the face of continued repression in communities of color under the guise of implementing the nation’s drug laws, political leaders remained relatively silent.65
These get-tough policies in the 1980s and early 1990s reflected the racial demographic changes that occurred in America’s cities between the 1960s and the 1980s—the emergence of a Black underclass living in concentrated poverty. Previously, the effects of inner-city life created a narrative that enabled sociologists and the popular media to describe the environment within low-income communities as encouraging a “culture of poverty” or a deviant subculture in which poor people sought out, enjoyed, and perpetuated destructive lifestyles.66 This narrative suggested that African Americans were primed to populate this permanent underclass. About 40 percent of African Americans exist at or below the margin of regular employment, minimal income, and personal security.67 Contact by affluent Whites with people of different races or those in low-income communities comes through personally experiencing crime, passing through blighted communities, or having limited contact with people working in the service economy—cleaning people, delivery persons, security guards. Occasionally, the contact is a direct experience of crime. But more often interracial experiences come through stories related by friends or family or on a more regular basis through the daily news reports of crime, drugs, and violence that appear in the newspapers or on the nightly televised news.