California, like the rest of the nation, is slowly rousing itself after a generation-long binge of harsh and unthinking criminal sentences, especially for nonviolent crimes such as drug possession and sale. Our morning-after realizations include the degree to which we have over-incarcerated, sending too many people to prison with too little notion of how they were supposed to change while locked up, or how they were expected to make their way in the world when they got out.
There is also an emerging understanding of the interplay between the war on drugs, the tough-on-crime movement and race.
The federal Anti-Drug Use Act of 1986 created separate sentencing schemes for powder cocaine, which in popular culture was seen as the drug of choice for white entertainers and Wall Street bankers, and rock cocaine, or crack, which was associated with poverty and urban decay, especially in African American neighborhoods. Under the new law, it took a tenth of the amount of crack cocaine by weight to trigger the same five- or 10-year mandatory minimum sentence as powder cocaine. Crack sentences ended up being 100 times harsher than sentences for powder cocaine.
California and a dozen other states quickly enacted similar laws that affected not merely the amount of time served in prison but the threshold for forfeiture of a dealer's — or mere possessor's — cars, boats, planes and other property.
All of these changes in state and federal law helped lead to a culture of intervention and rehabilitation as the proper response to drug abuse and addiction among many wealthy and middle-class whites but a practice of arrest and imprisonment for blacks. By the second half of the 1980s, the number of African Americans locked up on cocaine charges exceeded that of whites, even though blacks make up only about 15% of the population. Almost half of prison admissions for blacks were due to drug charges, compared with less than a quarter for whites. Blacks were stopped and frisked more, arrested more, convicted more and given longer sentences on drug charges than whites, although most studies showed, and continue to show, about the same percentages of drug use and sales among African Americans and whites.
There were attempts to explain. Some argued that the disparities were needed because crack is more addictive than powder cocaine — except that turns out not to be true. Some argued that crack delivered a quicker although shorter high. So what?
In her 2010 book, "The New Jim Crow: Mass Incarceration in the Age of Colorblindness," legal scholar Michelle Alexander argued that the drug laws and the disproportionate imprisonment of African Americans are a continuation of the nation's historical repression of African Americans. Critiques from the left and right have attempted to take on whether such repression is real and, if so, conscious, subconscious, coincidental or something else. It is a worthy and consequential discussion.
But consensus on Alexander's argument need not be a precondition to undoing the mistakes made in the sentencing disparities between crack and powder cocaine. Congress already has seen that. In 2010, it adopted the Fair Sentencing Act, which brings sentences for one form of cocaine more in line with the other.
Now it is California's turn. Lawmakers have twice rejected bills to follow the federal government's lead on the issue. This year, SB 1010 by state Sen. Holly Mitchell, a Democrat who represents neighborhoods in Los Angeles from the San Fernando Valley to Silver Lake and Century City to South L.A., has passed the Senate and is up for a vote this week in the Assembly.
The bill would not eliminate property forfeitures or stiff prison sentences for drug use or sales. It would not end the conversation about over-incarceration or the war on drugs.
But it would do away with much of the sentencing disparity between crack and powder cocaine, and at least part of the disparity between the sentencing of blacks and whites for possession and sale of the same controlled substance. It is time. The Assembly should pass the bill, send it to the governor and help California continue its soul-searching about drugs, crime, sentencing and race.
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