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March 21 — A Day to Recommit Ourselves to Cracking the Disparity!

Ian S. Thompson,
Senior Legislative Advocate,
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March 21, 2009

Today, March 21, is the International Day for the Elimination of Racial Discrimination. Too often these types of dates and anniversaries pass by without anyone taking much note. However, this day, which was originally established by the United Nations General Assembly in 1966, provides a perfect opportunity to examine our own country’s criminal justice system, which remains tragically rife with racial and ethnic disparities.

One of the single most outrageous disparities in our criminal justice system today remains the 100-to-1 sentencing disparity ratio between crack cocaine and powder cocaine, which has existed in federal law for more than two decades. It takes 100 times more powder cocaine than crack to trigger the same irrationally harsh five and 10-year mandatory minimum prison sentences. For example, possessing as little as five grams of crack cocaine, little more than a sugar packet’s worth, will result in the same five-year prison sentence as dealing 500 grams of the powder form of the drug. (By the way, it should be noted that crack and powder represent just different forms of the same drug, cocaine.)

The 100-to-1 disparity has been a driving force behind the gross racial inequality that has come to plague both drug law enforcement and the criminal justice system in general. Additionally, it has turned the concept of a system of justice where all individuals are treated equally on its head.

In December of 2007, the ACLU released a comprehensive analysis of the pervasive, institutionalized, systemic and structural racism that continues to plague our society. This report, Race and Ethnicity in America: Turning a Blind Eye to Injustice, was written as a response to a report released by the U.S. government (still operating under the dark period now simply known as the “Bush Years”) earlier in the year to United Nations’ Committee on the Elimination of Racial Discrimination (CERD). The U.S. report was sadly little more than a “whitewash” attempt to sweep the dramatic effects of widespread racial and ethnic discrimination in this country under the rug.

The CERD Committee oversees compliance with the Convention on the Elimination of All Forms of Racial Discrimination, which is the principal human rights treaty for the elimination of racism, racial discrimination, and other forms for intolerance around the world. Unlike other international human rights treaties like those dealing with the rights children and women, the U.S. actually is a party to CERD having ratified it in 1994.

The ACLU report provided a much more accurate and comprehensive accounting of the persistence of racial discrimination in the U.S. We even had a section on the disparate penalties for crack and powder cocaine offenses. Stating —

This sentencing scheme has had an enormous racially discriminatory impact. Federal law enforcement’s focus on inner city communities has led to blacks being disproportionately impacted by the facially neutral, yet unreasonably harsh crack penalties…Over 80% of individuals prosecuted by the U.S. government under the crack cocaine mandatory minimum laws are African-American although only on third of crack cocaine users are African-American. Despite the enormous cost to taxpayers and society, the crack powder ratio has resulted in no appreciable impact on the cocaine trade.

The CERD Committee examining U.S. compliance with its obligations under the international treaty used the information provided by the ACLU to…how to say this nicely?…Keep the government honest.

Just this month, Human Rights Watch released a very damning report on the racially disparate impact that the so-called “War on Drugs” has had on communities of color in the U.S., particularly African-Americans. They found that adult African-Americans were arrested on drug charges at rates that were 2.8 to 5.5 times as high as those of white adults in every year from 1980 through 2007. About one in three of the more than 25.4 million adult drug arrestees during that period was African-American. All of this despite the fact that both whites and blacks engage in drug offenses at comparable rates. Might it have something to do with where law enforcement has focused its drug fighting policies?

The tide is beginning to turn in a new direction on these types of issues however. The Obama administration has listed the elimination of the crack cocaine sentencing disparity as one of its top civil rights priorities. Additionally, legislation has been introduced in the House of Representatives which would finally correct this glaring injustice. The ACLU urges everyone to contact their representatives to voice their support.

This year’s International Day for the Elimination of Racial Discrimination provides us with a unique opportunity to redouble our efforts to finally eliminate the crack cocaine sentencing disparity. Doing so makes sense for so many reasons, but today we can focus on one more in addition — it would bring us that much closer to being fully compliant with our obligations under the Convention for the Elimination of All Forms of Racial Discrimination.

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