The Blog

Crack Deal

Compromise on the crack-powder debate.

11:00 PM, Feb 18, 2009 • By JAMES F.X. O'GARA and JOHN P. WALTERS
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SO MUCH TIME HAS passed since the crack epidemic of the 1980s that some only remember it for "48 Hours on Crack Street" (a June 1986 special in which Dan Rather took to the streets with a thundering herd of 18 camera crews and 25 producers) or the cocaine-induced heart attack three days later that ended the promising basketball career of Len Bias. TV shows like Miami Vice now have an appropriately retro feel to them. But just how bad the crack epidemic was for our cities is something most people would just as soon forget.

Photographer Eugene Richards's lens captured the heartbreaking lives and words of various addicts and innocent bystanders in East New York, North Philadelphia, and Brooklyn's Red Hook housing project. In his book "Cocaine True, Cocaine Blue," Richards interviews a Philadelphia woman who had taken custody of her crack addict daughter Joyce's three children. "'Look,' I say, 'If you don't straighten up I'm gonna take the kids.' 'She said, 'Go ahead . . .' I cry, I walk the floor. This generation is gone. Joyce is gone . . . My grandmother used to have a saying that when Hell full up, the dead will walk the earth. We're seeing it now. They are the dead. Look at 'em."

As Richards photographed in East New York, a jurisdiction of just 160,000 near Kennedy Airport, the number of murders for that year hit 107, along with 145 rapes and 567 felonious assaults. Four police officers were shot in a single day. Nationally, emergency rooms teemed with victims of crack overdoses and preemie wards in urban areas were oversubscribed with the low-birth-weight children of female crack addicts.

While the ending has not been written to the story of cocaine, things are looking significantly brighter than they did to Richards 15 years ago.

Crack and powder cocaine addiction are down roughly 80 percent from the peak, and recent enforcement successes in Mexico and Colombia have led to a shortage that is going on two years, a fact confirmed by record low workplace positive test rates. Crack remains unacceptably available in our cities, but a combination of strong enforcement by the DEA and local law enforcement plus stiff sentences enacted by a bipartisan Congress in the months after Bias's death (then-Senator Joseph Biden referred to "that horrible new concoction called crack") took a significant toll on traffickers and dealers.

Because so many crack dealers are African American, as are their victims, these tough sentences have been derided as racist in application, if not in intent, and have been a persistent source of division and dispute. What should not be in dispute is that in a government based on consent of the governed; laws must be both just and accepted as just. The different crack and cocaine sentences are one of the few areas of criminal law where many believe injustice has continued for years, yet repeated efforts have not convinced the critics that the law is just or convinced the defenders that the law should be changed.

Many in law enforcement defend the present law as a critical tool in removing violent and repeat offenders from victimized communities. Crack mandatories and other federal mandatory minimums are used to lock up violent and repeat offenders that have been a threat to communities and targeted by DEA task forces and federal prosecutors. The law provides for a five- or ten-year sentence without having to prepare conspiracy cases, notoriously difficult when witness intimidation is frequently a fact of life. These federal laws have become important tools in taking on the threat of violent gangs.

There is not much debate over the proper posture toward violent offenders and career criminals, but surely a change can be crafted to keep the ability to use federal enforcement, where needed, to protect victimized communities from truly dangerous and repeat offenders. If the federal law and its enforcement, as the critics charge, are really putting low-level non-violent, offenders in prison with long mandatory sentences, the practice should be stopped.

Why not enact a true compromise on the core principles of the critics and the defenders? Abolish the sentencing differential that treats crack more harshly for low-level offenders but leave it in effect for criminals with three or more prior felonies or one or more prior violent felonies. Further, remove special reference to crack all together and simply refer to cocaine in whatever form.

This change would to allow federal enforcement help against those individuals who pose disproportionate risk in particular communities, while removing from the reach of the law low-level offenders and those who are merely dependent users or addicts. President Bush sought just such a change toward the end of his second term but ran into election-year partisanship and legislative gridlock. The new administration has made noises about changing the law. Perhaps this is how President Obama, Vice President Biden, and Attorney General Holder can get it done.

John P. Walters is executive vice president of Hudson Institute and former director of the Office of National Drug Control Policy under President George W. Bush. James F.X. O'Gara served as deputy director for supply reduction of that office.