The Ultimate Crack Down: We Know Not What We Do

The Ultimate Crack Down: We Know Not What We Do
June 25, 2012
by Caryn Devins and Stuart Kauffman

This week Caryn Devins again joins 13.7 regular Stuart Kauffman to consider how our legal system can mirror natural systems in its behavior. Devins is a third-year law student at Duke University School of Law.

The "War on Drugs" reached new heights in the 1980s. Nancy Reagan's "Just Say No" campaign flooded the schools and media outlets. In this environment, a new drug emerged that horrified and mobilized people: crack cocaine. The media screeched that crack was more addictive, concentrated and destructive than any other drug, fueling the drug-war blaze.

Already, the existence of crack cocaine shows the naivete inherent in the deterrence rationale of prohibition. Instead of deterring cocaine use, prohibition spurred the black market to adapt to prohibition by producing stronger, cheaper and more highly addictive versions of existing drugs. Prohibition and the resulting black markets have been co-evolving.

In response, Congress united in support of new federal mandatory minimum sentences meant to crack down on high-level traffickers under the 1986 Anti-Drug Abuse Act (ADAA). The law imposed a five year mandatory minimum sentence for distribution of five grams of crack cocaine, enough to fill a sugar packet, while imposing the same sentence for 500 grams of powder cocaine.

Rather than deterring drug trafficking, this "get tough" posture led to utter disaster in the African American community. By the early 1990s, nearly 90 percent of crack cocaine defendants in federal court were black, even though nearly two-thirds of crack cocaine users were white or Hispanic. Imprisonment rates and sentence lengths skyrocketed. Many black communities were ravaged as enforcement disproportionately affected the young and their families. Yet harsh sentences have only partly been mitigated by the Fair Sentencing Act of 2010.

How do we make sense of the striking racial disparity present in these devastating levels of imprisonment? It certainly poses challenges to those who claim that racism is not a major problem in the criminal justice system. However, the support for the ADAA from about half of the black Congressional caucus and many African American advocates should give pause to those who believe that the law was intentionally racist.

The racially disparate impact of the ADAA is better understood as an irreducible emergent behavior of the criminal justice system.

In addition to the linear causal effect of racist individuals, the ADAA took on a racially tilted life of its own after it catapulted into the pre-existing network of interactions between police, prosecutors and the Department of Justice, Congress and the judiciary. Thus, the ADAA enabled a dramatic cascade of unintended consequences.

The story of emergence began at the street level. The late professor William Stuntz convincingly argued that the incentives underlying police enforcement efforts against consensual illicit trades, including drug use, encourage police to target such use among the lower classes and minorities. Drug markets in poor communities are often located in street markets or fixed locations, whereas in affluent communities they are more private. The violence caused by the street trade is also concentrated in lower-class markets.

Class-based policing was aggravated by several features unique to crack cocaine. The triggering thresholds for the mandatory minimums were so low that it facilitated police focus on small-time crack users, who were easier to catch and subdue than dangerous high-level dealers. The nature of crack cocaine, which is usually cooked from powder cocaine by users, further ensured that street-level dealers and users would be targeted. In other words, there were rarely high-level dealers with crack cocaine.

At the prosecutorial level, the targeting of poor minorities was also exacerbated. Crack cocaine penalties were representative of the increasing array of tools available for prosecutors, increasing their power relative to defendants and judges. First, the surge of crack-cocaine-dealing arrests gave prosecutors fodder for easy convictions. Second, mandatory minimums provided leverage in plea bargaining: when faced with a possible five- or 10-year sentence, many defendants would accept a plea agreement rather than risk conviction at trial. Third, federal conspiracy laws allowed prosecutors to pin the drug amount in the entire conspiracy on any given defendant, even if her involvement was minimal. This led to the infamous "girlfriend problem," where girlfriends of crack dealers became eligible for lengthy federal sentences after serving as couriers or using drug money to feed their children. Prosecutorial harshness was backed up by the Department of Justice's general stance in favor of severity in these cases.

Finally, at a macro political level, crack-cocaine-sentencing policy was at the center of political infighting between Congress and the judiciary. In the 1980s, members of Congress opposed leniency in sentencing by mandating that a commission create sentencing guidelines that would bind judges. In order to write rational and proportionate guidelines, the commission was forced to incorporate the 1986 mandatory minimums as a sentencing floor, thus skewing sentences for all crimes upwards. The "ratchet up" effect was amplified as Congress passed a flurry of directives in order to micro-manage the guidelines amendment process, and increase its own power relative to the judiciary. When the commission voted to reduce the sentencing guideline for crack cocaine in the mid-1990s, Congress rejected the amendment. Tough-on-crime rhetoric and power politics proved more important to Congress than reality.

This story illustrates that laws do not exist in isolation — they become part of complex networks that yield emergent, un-prestatable behaviors. Laws targeting consensual trades and nonviolent behavior will inevitably be enforced against the lower classes and minorities. Positive feedback loops and cascading political consequences ensue.

The evolutionary perspective sheds light on the relationship between deterrence and racism in the criminal justice system. The harshness of the criminal laws and racial disparity in enforcement cannot be understood as the aggregation of individual prejudices. The reality that these pathologies are the product of institutional emergence is more profound and disturbing. It means that even if every last bastion of bigotry was eliminated from the system, a racially disparate impact would likely continue. Our policies act as adaptive niches that unleash unintended consequences.