Were Cocaine Sentencing Disparities "Racist"?

with John McWhorter

In my most recent conversation with John McWhorter, we formulate a series of responses to “Simone,” our fictionalized version of a young black student who believes that systemic racism explains all or most of the racial disparities in the US. We chose a few specific topics where these sorts explanations are commonly deployed, and we attempted to explain why there are aspects of the problem that systemic racism can’t account for.

But that doesn’t mean we simply abandon the idea that racial bias—whether conscious or unconscious—can have a major impact on black lives. The notorious disparities between penalties for possessing crack cocaine and penalties for possessing powder cocaine in the ‘80s and ‘90s is a place where it very well might have. Offenses involving crack cocaine were punished much more harshly than those involving powder cocaine—500 grams of powder cocaine (i.e., a lot of cocaine) would trigger a five-year federal mandatory minimum sentence, whereas it took only 5 grams of crack to trigger the same sentence. Since crack was most often sold in black communities, the vast majority of people locked up on these charges were black.

As John and I discuss below, there were plenty of reasons these laws came into existence, not the least of which were complaints from black leaders representing communities devastated by the crack epidemic and the violence that came with it. You can’t attribute that to racism. But neither can you ignore the willingness of American society at large to accept a set of laws that incarcerated a staggering number of black men.

This is a complicated issue and in some ways a personal one. Let me know what you think in the comments.

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JOHN MCWHORTER: And here's another one: powdered cocaine and crack. Part of the motivation, correct me if I'm wrong, Glenn, because you were there in a sense that I wasn't, but powdered cocaine was sentenced ... I just mean that you …

GLENN LOURY: Yeah, I know what you meant. I’m older than you are.

You were grown-er. You were studying it. But like, powder cocaine and crack. They came down harder on crack, partly because crack was sold in out outdoor markets and the selling of crack created the kind of violence that can help tear up a neighborhood. Because powder cocaine was mainly dealt on playgrounds and in basements and partaken of there. And so there was a sense that crack is more dangerous to the urbanity than Ethan doing some lines in the bathroom in his parents' house. So there was that.

And then there was also that black leaders were behind those laws when they were initially instituted. Now today, that's called just naked structural racism. It was racist that crack was cracked down on more than powdered cocaine. I have watched white guys do high fives talking about that. But was it really that simple? There was the idea that crack was more dangerous, and a lot of black people thought so, which means that the idea that it was systemic racism is much weaker than we're often told. Am I onto something there? Or am I missing missing that?

Oh well, it's a long time ago it feels like now. But yeah, the crack-powder disparity 100 to one. The minimum weight needed to trigger the mandatory minimum sentence of the crack cocaine was one one-hundreth of the minimum weight for the powder cocaine. And the mandatory minimum sentences did get applied in federal cases, and that that was a disparity. It's true that the many African American representatives in Congress supported the legislation on that because their communities were catching hell. Who's the guy? The Silent Black Majority? The writer, political scientist?

Michael Fortner?

Yeah. Michael Fortner explores this in the case of heroin in New York City and the Rockefeller Drug Laws in the ‘70s and ‘80s. And James Forman at Yale, the law professor there, explores the same theme in the case of Washington, D.C. Crack cocaine and the depredations of the drug disorder. And sure, there was push in the black community for law enforcement because people were being affected adversely by the violence that accompanied the trade. But is that structural racism? I mean, of course that invites the whole incarceration, mass incarceration thing. And you know, I've written about this in a register very sympathetic to structural racism arguments, saying in part because the people who were caught up in this with disproportionately black, the larger society didn't pull back from the brink.

Even if the intent were not explicitly anti-black, the experiment, the social experiment of expanding the number in prison from 500,000 to 2 million in a quarter century, which is a remarkable institutional upheaval … We completely changed the way in which we deal with social disorder and social dysfunction, ratcheting, very substantially, up the degree of punitiveness, which could be measured along a lot of different dimensions, including the various scale of people who are incarcerated. Of course, a rise in crime had something to do with that, and the more subtle historical analyses credit the fact that crime rates induced in the popular sentiment a much greater tolerance for punitive legislation.

But, you know, we overshot. I mean, I think it's a fair reading of history that we overshot. I think a lot of conservatives and people agree that we overshot, and in the '00s, we pulled back, and those numbers peaked out and they leveled. Now crime did come down as well. But I think the sentiment against incarceration at the scale that it had reached by the late 1990s is pretty widespread in this society. So we pulled back.

But here's the structural racism argument that I think has to be taken seriously, which is if the racial issue hadn't been so central in crime and punishment and in the representation of blacks within those who were really, really on the brunt end of the punitive regime, would we have had a different—we collectively, the polity and the culture of the United States of America, the political culture—have had a different reaction, been less tolerant of the excess as if they had been falling upon people about whom we had a greater degree of concern? I don't think that's an implausible thing to say.

No.

That racial stigma. You take the history back. Roll it back not just to the ‘00s or to the ‘90s or to the ‘80s. Roll it back to the ‘50s and to the ‘40s. Roll it back into the ‘20s and to the ‘10s. And the insinuation of racial stereotyping, of racial derogation, of racial contempt. You know, it's hard to escape that in the lynching and the enforcement of Jim Crow in the South, it's hard to escape it in the teeming cities of the Northeast and the Midwest in the mid-twentieth century.

[In] the ‘60s, you see what happens with the riots and stuff. You get explosion after explosion, a lot of it around law enforcement issues, the Kerner Commission, et cetera. Yes, they were liberals. Yes, they might've been a little bit starry-eyed. Yeah, but they weren't crazy, and they weren't all wrong about what they were describing in terms of the ghetto of America. It was only a quarter century after Gunnar Myrdal's An American Dilemma, which is a devastating indictment and chronicle of racial subordination in the 1930s and the 1940s. So, you know, it's not like there's no there there. I mean, you'd have to be blind to history to think that there was no there there.

No one knew what the outcome was going to be. And once the outcome happened, sensitivity to it was weaker because people deep down didn't care as much about black people.

Plausible hypothesis.

Plausible hypothersis. But I want to get at this. This is what Simone is thinking. This is what's taught to people in college. In the early-’90s, were there white people who, although not explicitly, decided “Let's target crack cocaine more because when black people create disorder, it's a worse thing than when white people do.” Is that what was going on or was there another reason, such as open-air violence, that crack cocaine was given the harder penalty? Because Simone thinks that it was because of racism.

I'm sorry to have to report that I know way too much about crack cocaine, man. I mean, because I used to be a crack cocaine addict in the 1980s, so I could have gotten myself shot dead out there on the streets of Boston, Massachusetts. And I'd go back to Chicago sometimes and hang out with some of my old schoolmates and stuff like that. You know, Chicago in the 1980s is not Chicago in the 2020s, because probably in the 2020s, you be going around the drug houses, you end up with a bullet in your head. But it was a lot of cash money. Very easily storable small transactions, frequent. You know, drug houses, people sliding the drugs under the door and whatnot. A lot of people walking around with guns. And there was just a lot of violence. The bodies piled up. And you look at the murder rates in these cities in the late-‘80s and early-‘90s, it makes today look like a walk in the park. I mean, we're still lower than the peak of the violent crime rates that were reached in the 1990s.

And this is why crack cocaine was penalized more, wasn't it?

Yeah! Because of the violence, because of the stories that were in the newspaper. Because how many drug deals gone bad and multiple homicides with kids in the back room can you have in the newspaper before somebody says, “Enough”?

In other words, it wasn't white people thinking, “When black people make noise, it gets on our nerves. And so we're going to penalize more.” Because that's what Simone is taught.

Well, there probably was some of that. I mean the crack baby hysteria, right? The whole cohort of black babies was going to be deficient because there were so many mothers on crack. There was kind of hysteria about that. I'm sure you can find hyperbole and exaggeration in popular culture and certain stereotyping images that get projected and whatnot. But a lot of the response was coming from black people in those communities themselves.