ACLU Slams 20 Years of Mandatory Drug Sentencing

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In 1986, Congress passed a tough new law called "the Anti-Drug Abuse Act." The measure created new minimum sentences that are much harsher for crimes involving crack cocaine than powder cocaine. The American Civil Liberties Union argues that the drug law has devastated African-American and low-income communities. The group recently issued a critical report titled Cracks in the System: Twenty Years of the Unjust Federal Crack Cocaine Law.

TONY COX, host:

From NPR News, this is NEWS & NOTES. I'm Tony Cox, in for Farai Chideya.

Two decades ago, Congress passed a tough new law called the Anti-Drug Abuse Act. The measure created new minimum sentences that are much more harsh for crimes involving crack cocaine than powder cocaine.

The American Civil Liberties Union believes that the drug law has devastated African-American and low-income communities. The group recently issued a critical report titled Cracks in the System: 20 Years of the Unjust Federal Crack Cocaine Law.

Jesselyn McCurdy is legislative counsel with the ACLU in Washington, D.C. and one of the authors of the report. She joins us from NPR headquarters in the nation's capital.

Jesselyn, welcome.

Ms. JESSELYN MCCURDY (Legislative Counsel, American Civil Liberties Union): Thank you for having me, Tony.

COX: Also with us, Eric Sterling, president of the Criminal Justice Policy Foundation also based in Washington. Mr. Sterling was counsel to the U.S. House Committee on the Judiciary from 1979 to 1989, and participated in the passage of the mandatory minimum sentencing laws. He joins us by phone.

Nice to have you with us as well.

Ms. ERIC STERLING (President, Criminal Justice Policy Foundation): Hi, Tony.

COX: Let's begin here. I'd like to come to you, Jesselyn, first to talk about - in the 20 years since this law has been enacted, what does your report say has been the conclusive finding, and can you draw a correlation for us between how many people of color abuse crack cocaine versus how many whites abuse powder cocaine and the correlation to the jail time each one gets?

Ms. MCCURDY: Well, what we try to do in our report is tell a story of what has happened over the past 20 years. And we think it's a compelling story. The story starts with the death of Len Bias back in 1986 from what initially was thought to be a crack and alcohol - cocaine overdose.

But ultimately, what we found out after the trial of the person accused of supplying the cocaine to Len Bias was that he actually died of a powder cocaine overdose. Unfortunately, we didn't find that out until long after this harsh, 1986 Anti-Drug Abuse Act was passed.

So what we tried to do in our report is tell a story of 20 years where we have now been able to calm down from the media frenzy that was associated with Len Bias' death. We've been able to dispel the myths that were associated with crack 20 years ago. And we also, very importantly, have the U.S. Sentencing Commission that has sat and research and studied this issue, and found that there's really no justification for 100:1 crack to powder cocaine disparity that exists in federal law today.

What we know is that while over 80 percent of the people who are incarcerated for federal crack cocaine offenses are African-American, in fact, 66 percent of the crack users in this country are white. And so there is obviously a disconnect between who are - the people that are using crack cocaine in this country and the people that are being convicted for distributing crack cocaine in this country.

COX: Let me bring…

Ms. MCCURDY: And we think…

COX: Let me bring Eric in, excuse me. As we mentioned, you were counsel for the U.S. House Committee on the Judiciary and helped craft this anti-drug law, which resulted in the passage of mandatory minimum sentencing. What strikes you most, sir, even today about the enactment of the measure?

Mr. STERLING: Here's the story, Tony. Congress passed the thing in haste. It made a tremendous mistake in sort of how it tried to identify high-level traffickers. The Justice Department has completely misused the law that Congress passed and has focused overwhelmingly on low-level traffickers and not on high-level traffickers.

The result of that is that the cocaine problem has gotten worse over the last 20 years. The price of cocaine has gone down steadily. The quality of cocaine has gone up. The number of crack users today is almost the same it was 20 years ago.

The other kicker is that it's overwhelmingly been targeted at people of color. For every white crack federal defendant, there are 10 black federal defendants. All over - almost all overwhelmingly the lowest level offenders. So the federal government is not using the statue properly. It's going after local offenders, the ones that local police can prosecute. It's going after lookouts, bodyguards, street-level dealers and ignoring the high-level international traffickers who keep the cocaine flowing into America.

COX: Now here's a question I have for the both of you - because on one hand, as I listen to you, it sounds as if you are trying to get fairness, if you will, for people who are involved in using crack cocaine. So, some would say that it makes more sense to raise the penalties for powder cocaine instead of trying to lower the penalties for crack. What's your response to that? First you Eric, and then Jesselyn.

Mr. STERLING: It's not about tinkering with the penalties. It's about changing what the Justice Department does and who they prosecute. Congress made the mistake of identifying high-level traffickers with tiny quantities. Fifty grams of crack cocaine is the weight of a candy bar. No one would think that the guy who sells 50 grams of crack cocaine is a high-level trafficker. But that's the - two-thirds of all the crack cases involved only 50 grams.

The federal government is not focusing on high-level traffickers. It's focusing on black, Hispanic, low-level traffickers, people who are couriers. They're misusing the statue, and therefore they're ignoring their job, which is to focus on high-level traffickers.

It's not simply about fairness. Fairness - unfairness is the - maybe it's the motive, but it's certainly the consequence of what they're doing. But the mistake is they're doing the wrong cases. They're misusing the statue. It's not about the penalties. It's about the incompetence of the Justice Department.

COX: Well, Jesselyn, is that how you see it?

Ms. MCCURDY: Well, I mean, definitely that's part of it. But the other part of it is that we're not being true to what Congress intended initially when they passed this law 20 years ago. Congress, clearly in the little bit of legislative history that's available around the 1986 act, clearly intended to focus on high-level traffickers.

And when we tinker around the edges and we deal with 5-gram crack cases, street-level dealers, we are not cutting off the supply of cocaine in this country. And so we're not being true to Congress' intent when they passed this law.

COX: One of the things that was mentioned in the executive summary to the report that I read suggests that there is no rational medical reason for the 100:1 disparity between crack and powder cocaine. And yet at the same time, people who live in and around low income and particularly African-American communities, know of the harm that crack cocaine has caused and it doesn't seem - I want to underline doesn't seem - that it's the same with regard to the harm that was caused by the use of powder cocaine. Can you speak to that, Jesselyn?

Ms. MCCURDY: Yes. Well, what we have found out over the past 20 years is that there is no difference between the pharmacological effects of crack cocaine and powder cocaine. And while 20 years ago, there seemed to be a kind of frenzy around the fact that there was this myth around -prevalent myth around crack babies, that mothers that take crack will give birth to crack babies that will have developmental difficulties. While that may be true, but there is no difference between a mother that takes crack and a mother that takes powder cocaine.

So in other words, there is no difference between the ingredients of these drugs. And so the effects are not more pronounced in terms of women that take crack. And that's - those are the myths that we're trying to dispel in our report.

COX: So, is it also a myth that crack cocaine is not as - is no more addictive than powder cocaine? Is that what you're saying?

Ms. MCCURDY: Yes. That is - that also has been dispelled. The situation is really, is not so much that it's crack - that crack is more addictive or more instantly addictive. That was seem to be the myth 20 years ago, that crack was instantly addictive. But the reality is that it's really about the method of ingestion for cocaine, period.

So if you smoke crack cocaine, like most people do, there is a quicker high that you get. But if you inject powder cocaine, you would get the same quick high that you would from smoking crack cocaine. So it's not the drugs themselves, it's the method of ingestion.

COX: Eric, let me ask you, because you were involved in the initial bringing together to his law 20 years ago. Is there any reason, do you think, to believe that any of this will change anytime soon with regard to the enactment of a revised law or new law?

Mr. STERLING: Yes. We're seeing Republican legislators recognizing the unfairness of this. And they want to do something about. A former prosecutor like Senator Jeff Sessions recognizes that the federal government is not doing the right job here, and has introduced legislation to try to fix it.

The thing that they need to understand is it's not about changing five grams to 50 or 50 to 500 to 5,000. It's about focusing on much higher levels, like 50 kilos, 100 pounds or more of cocaine to get the federal government focused on high-level cases.

Senator Sessions' bill goes from like five grams to 20 grams. Or, you know, and this is all at the lowest level. That's not what the feds are supposed to be working on.

COX: Do you think that there is any reason to believe that the law would have any better chance if the House - if Congress changes hands in the upcoming election? Will that change anything?

Ms. MCCURDY: I honestly think that - as Eric has indicated - that people on both sides are recognizing, after 20 years again, that there is a problem, that this law's unjust and something needs to be done. So I think that people on both sides of the aisle quite frankly are trying to look at the law, reevaluate it, figure out what can be done to at least give some semblance of fairness in terms of federal crack and powder cocaine cases.

COX: I've got about 15 seconds left. Eric, do you share that view, that it doesn't matter whether the Republicans or the Democrats are in charge of Congress?

Mr. STERLING: I don't think it makes a difference in the passage of this legislation, getting the problem fixed. I think both parties want an effective federal anti-drug effort, and that's what we need to focus on here. That's what's politically salable. That's more political powerful, unfortunately, than appeals to racial justice.

COX: I understand. I appreciate both of you coming on. Jesselyn McCurdy is legislative counsel with the American Civil Liberties Union in Washington, D.C. Eric Sterling is president of the Criminal Justice Policy Foundation, also in Washington. Thank you both for coming on.

Mr. STERLING: Thank you, Tony.

Ms. MCCURDY: Thank you, Tony.

(Soundbite of laughter)

COX: Coming up, the Red Cross gets reorganized again, but will it help the agency do better with disaster aid? And sex sells, but votes? We'll look at sexy campaign ads. That and more on our Roundtable, next.

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