High Price

crack and that the sentencing disparity was not scientifically justified. To punish crack users more harshly than powder users is analogous to punishing those who are caught smoking marijuana more harshly than those caught eating marijuana-laced brownies.
    At the same time, some began raising concerns that crack-powder laws disproportionately targeted blacks. Congress directed the U.S. Sentencing Commission to issue a report examining the federal cocaine laws. The commission is the federal agency responsible for, among other tasks, reducing unwarranted sentencing disparities. In February 1995, it issued its report. The report examined pharmacology, the ways the drug is taken, societal impacts, cocaine distribution and marketing, cocaine-related violence and crime, the legislative history of cocaine penalties and constitutional challenges, and data related to federal drug offenses. It was thorough. It found that nearly 90 percent of those sentenced for crack cocaine offenses were black, even though the majority of users of the drug were white. This conflicted with most people’s perception because news reports and popular media almost always showed black crack smokers. As a result of these findings, the commission submitted to Congress an amendment to the sentencing guidelines that would have equalized penalties for powder and crack cocaine offenses, that is, the crack-powder ratio would have gone from 100:1 to 1:1. Congress passed and President Bill Clinton signed legislation disapproving the guideline amendment. In a statement Clinton explained the rationale for his decision to block the amendment: “We have to send a constant message to our children that drugs are illegal, drugs are dangerous, drugs may cost you your life—and the penalties for dealing drugs are severe.” He continued: “I am not going to let anyone who peddles drugs get the idea that the cost of doing business is going down.” Subsequent reports and recommendations by the commission in 1997, 2002, and 2007 were equally unsuccessful in bringing about meaningful changes to the cocaine laws.
    Many prominent individuals criticized the unwillingness of lawmakers to eliminate the cocaine sentencing disparity. In 1997, Michael S. Gelacak, then vice chairman of the Sentencing Commission, wrote, “Congress and the Sentencing Commission have a responsibility to establish fair sentencing standards that protect the public. . . . We have jointly failed in our approach toward crack cocaine sentences, and the result is seriously disparate sentences. We should not lose sight of that overriding reality. . . . The only real solution to the injustice is to eliminate it.” Ten years later, even presidential candidate Barack Obama had added his voice to the growing chorus of criticism: “[L]et’s not make the punishment for crack cocaine that much more severe than the punishment for powder cocaine when the real difference between the two is the skin color of the people using them. Judges think that’s wrong. Republicans think that’s wrong. Democrats think that’s wrong, and yet it’s been approved by Republican and Democratic Presidents because no one has been willing to brave the politics and make it right. That will end when I am President.” 3 On August 3, 2010, President Obama signed legislation that decreased, but did not eliminate, the sentencing disparity between crack and powder cocaine offenses. The new law reduced the sentencing disparity from 100:1 to 18:1.
    Some celebrated this change as a significant step toward ending a historic wrong. I am not one of them. In 1964, when asked whether the United States had made sufficient progress toward racial equality, Malcolm X said, “If you stick a knife in my back nine inches and pull it out six inches, there is no progress. . . . The progress is healing the wound.” Accordingly, I think the sentencing differences should be completely eliminated because there is no scientific justification for the differential treatment of crack and powder cocaine under the law. This seems the ethical thing to do in light of the evidence and ONDCP’s claim to rely on science and evidence.
    I sat there in the methamphetamine roundtable and wondered whether the same mistakes would be made with this drug as were made with crack cocaine. There certainly were plenty of signs suggesting this. Like with crack cocaine in the mid-1980s, a relatively small number of individuals from a derided group were seen as users of