Darryl K. Brown
Drug abuse and drug-related crime have been recurrent problems on the American political and social agenda since the early twentieth century. The federal government was relatively quiet on drug issues in the 1950s and 1960s, but in the early 1970s President Nixon declared a "war on drugs." Most presidents after Nixon continued to wage some form of that war. The high point of this period of legislative reform on national drug policy was the 1980s, and the most important set of statutes on the drug problem during that period was the Anti-Drug Abuse Act of 1986 (P.L. 99-570, 100 Stat. 3207).
FEATURES OF THE ACT
The Anti-Drug Abuse Act strengthened federal efforts against drugs in many ways. One provision allows the president to increase tariffs (taxes on imports) on products from countries that do not cooperate with the U.S. efforts to stop drug imports into the United States. Another provision makes seizure of drug offenders' assets (houses, boats, cars, and money) easier.
The act also created the first laws against money laundering, or moving illegally obtained money (such as drug sale proceeds) into or out of bank accounts. In 1995 a congressional study estimated that $40 billion to $80 billion in drug profits are generated annually in the United States. Placing that money in the banking system exposes drug sellers to criminal sentences as well as forfeiture.
The part of the act with the most far-reaching impact, however, reinstated mandatory prison sentences for drug possession. Until 1986 the federal government had virtually no mandatory minimum sentences for drugs. The first federal mandatory drug sentences were passed in 1951 and imposed a two-year minimum sentence for first-time possession and a five-year sentence for trafficking. But those mandatory minimums were largely repealed in the Drug Abuse Prevention and Control Act of 1970.
In the 1986 act, Congress reinstated mandatory prison terms by defining the amounts of various drugs that it believed would be in the hands of drug "kingpins," or high-level dealers. Those amounts include 1,000 grams of heroin or 5,000 grams of powder cocaine. Offenders possessing, with intent to distribute, these "kingpin" amounts face a minimum ten-year prison sentence. Offenders possessing smaller amounts that would generally be possessed by "mid-level dealers"uch as 100 grams of heroin or 500 grams of powder cocaineace a minimum five-year sentence.
DISTINCTIONS IN MINIMUM SENTENCING
More significantly, the Anti-Drug Abuse Act created distinctions in minimum sentencing between offenders who possess powder cocaine and those who possess crack cocaine. For crack cocaine, Congress departed from its "kingpin" and "mid-level dealer" categories and simply divided the amounts necessary for powder-cocaine sentences by 100. Thus 50 grams of crack, instead of 5,000 grams of powder cocaine, merit a ten-year minimum sentence, and 5 grams of crack, rather than 500 grams of powder, trigger a five-year sentence. Trafficking in 50 grams of powder cocaine carries no mandatory sentence.
Congress justified this 100-to-1 sentencing disparity by stressing the serious social harms with which crack use was associated. Although crack and powder cocaine are the same chemical substance, crack sells more cheaply on the street and can be smoked, which induces a briefer, more intense intoxicating effect. It came into widespread use only in the mid-1980s and was associated with violent street crime. In the summer and fall of 1986, press reports sparked growing popular and congressional concern about a crack "epidemic."
In an effort to respond to this concern before the November congressional elections, legislators introduced a number of bills to toughen penalties for crack dealing. Less than two months before the election, President Ronald Reagan introduced a proposal with a 20-to-1 powder/crack ratio. House Democrats then proposed a 50-to-1 ratio, and Senate Democrats followed with a proposal that prevailed, a 100-to-1 ratio between the amounts of powder and crack cocaine required for mandatory minimum sentences.
Image Pop-UpThe Anti-Drug Abuse Act of 1986 was aimed at combating the large increase in drug-related crime. It allowed tariffs on imports of drug producing countries, imposed mandatory prison terms on those dealing drugs, allowed forfeiture of property, and made it illegal to move illegally obtained money into or out of bank accounts (money laundering). Additionally, persons contracting with or receiving services under government grants must certify that their workplace is drug free. These rules also apply to public housing, something this woman finds out as she is being evicted because her grandson, the co-lessee on her home, has been accused of drug possession.
The sentencing distinction between crack and powder cocaine has been controversial because of its disparate racial impact. Most offenders sentenced under the crack cocaine provisions are African-American, whereas white offenders make up a much higher portion of those convicted for powder cocaine offenses. Courts have rejected arguments that the different penalties are unconstitutional because minorities typically receive harsher sentences under the statute. Congress has rejected a recommendation by the U.S. Sentencing Commission to reduce the disparity between powder and crack cocaine sentences.
Although many media reports and images at the time of the act emphasized the spread of crack cocaine among inner-city minority communities, it is not clear that Congress foresaw the disparate racial impact these sentencing changes would have. Fully half of the African-American representatives in Congress voted for the act, many of them emphasizing the harm that crack use was causing to black communities. Regardless of Congress's original intent, years of evidence showing that minorities receive much harsher sentences than whites for cocaine offenses because of the powder/crack distinction has led to no serious effort to change the law. Mandatory minimum sentences appear to be a fixture of American drug policy for the foreseeable future.
See also: ALCOHOLIC AND NARCOTIC ADDICT REHABILITATION ACT; ANTI-DRUG ABUSE ACT; DRUG ABUSE PREVENTION, TREATMENT, AND REHABILITATION ACT; SENTENCING REFORM ACT.
Kennedy, Randall. Race, Crime, and the Law. New York: Pantheon Books, 1997.
Massing, Michael. The Fix. New York: Simon & Schuster, 1998.
Musto, David F. The American Disease: Origins of Narcotics Control, 3d ed. New York: Oxford University Press, 1999.
Did this raise a question for you?