Academic journal article Law & Society Review

Crack as Proxy: Aggressive Federal Drug Prosecutions and the Production of Black–White Racial Inequality

Academic journal article Law & Society Review

Crack as Proxy: Aggressive Federal Drug Prosecutions and the Production of Black–White Racial Inequality

Article excerpt

Crack cocaine first appeared in the major urban areas of New York, Miami, San Diego, and Los Angeles in the early 1980s, setting in motion a wave of new legislation and law enforcement practices that spread throughout the nation (Fagan and Chin 1989). Although the emergence of crack was associated with a number of social harms (Fryer et al. 2013), the political and legal response to its threat was disproportionately punitive, particularly at the federal level (Provine 2007; Reinarman and Levine 1997; Sklansky 1995). Most infamously, Congress passed the Anti-Drug Abuse Act of 1986, a provision of which incorporated a 100-1 powder-crack cocaine disparity whereby, for instance, offenses involving just 5 g of crack cocaine were subject to the same 5-year mandatory minimum sentence as offenses involving 500 g of powder cocaine. Two years later, it made possession of crack cocaine subject to a 5-year mandatory minimum prison sentence. No other simple drug possession offense mandated a prison sentence at all under the federal code (Pub. L. No. 100-690 1988).

A number of scholars have argued that the federal war on crack, including the on-the-ground deployment of crack laws, has functioned as a tool of racial subjugation while justified through the logics of public safety and crime control (Alexander 2010; Dvorak 2000; Lynch 2013; Provine 2007; Tonry and Melewski 2008). Congressional debates about crack reiterated racially coded media narratives about the dangerous "urban" poor addicted to crack (Dvorak 2000; Provine 2007), unfit black mothers raising crack babies (Roberts 1997), and other threats posed by crackrelated criminality. These narratives were in direct contrast to how whites' cocaine and freebase use, which predated crack cocaine but received little media and political attention, was both portrayed and sanctioned. In short, the federal reaction to crack was "not merely a rational response to a new threat to public health and public order" (Reinarman and Levine 1997: 19); it was also racially "coded" in its over-reliance on punitive criminal law to address the problem of crack (Dvorak 2000).

Yet, while the 1980s' federal drug statutes mandated harsh penalties for crack defendants across all the U.S. federal districts, those statutes have not been uniformly deployed. Rather, prosecutors in some districts have been much more proactive in pursuing crack cases, and their attendant lengthy sentences, than in others. Moreover, as the crack panic subsided, and public health and policy experts pointedly criticized the purely punitive approach to crack as ineffectual and even counterproductive, federal law enforcement's imperative to pursue crack convictions, especially in lower-level cases, became harder to justify (Sklansky 1995; U.S. Sentencing Commission 2002). Thus, over time, the prosecutorial choice-at the federal district level-to continue to aggressively pursue crack cases seemed increasingly driven by factors other than public safety concerns.

In this article, we assess the racial legacy effects of the 1980s' federal crack "war." Specifically, we examine jurisdictional variations in federal crack prosecutions from 2002-2012 to measure whether aggressive crack prosecutorial practices are associated with institutionally patterned inequality. We posit that, in the wake of the crack panic, those federal districts that have been more proactive in prosecuting crack offenses, relative to other kinds of drugs, and relative to case strength and seriousness, will demonstrate higher rates of black- white racial inequality in case outcomes across the entire criminal caseload. In this sense, we ask whether prosecutorial practices related to crack function as a proxy indicator-a metaphorical "miner's canary" (Guinier and Torres 2002)-of racial discrimination in the federal criminal justice system. Using data from the U.S. Sentencing Commission and the executive office of the U.S. Attorneys, we present novel group-level variable specifications to better capture the key mechanisms that may contribute to racial inequality in the federal criminal justice system. …

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