5 Grams: Crack Cocaine, Rap Music, and the War on Drugs

1. Crack, Rap, and the Punitive Turn

 l l 1 Crack, Rap, and the Punitive Turn The crack epidemic had rap representing the rules. —Nas, “The Last Real Nigga Alive,” God’s Son, 2002 In Kimbrough v. United States, one in a string of recent landmark decisions that, in effect, have made the United States Sentencing Commission ’s guidelines nonbinding, the Supreme Court upheld a trial court judge’s decision to address the former 100-to-1 sentencing disparity between crack cocaine and powder by reducing Derrick Kimbrough’s crack-related sentence by over four years.1 Kimbrough—an Operation Desert Storm veteran with no prior felonies—had pleaded guilty to a number of drugs and weapons charges and was sentenced to fifteen years instead of the 19-to-22.5-year range that strict adherence to the sentencing guidelines would have required. Had Kimbrough been caught with an equivalent amount of powder, he would have faced eight or nine years, less than half the time he faced for crack possession. In the trial judge’s view, the additional four-plus years mandated by the guidelines were “greater than necessary” to assure deterrence and public safety, and he responded by going lower than what was required. Arguing that the trial court had abused its discretion in going below the guidelines, the court of appeals increased Kimbrough’s sentence to the higher number. In disagreeing with the appellate decision, therefore, the highest court in the country officially recognized what researchers, scientists, and advocates have been arguing for years: the punishment structure for crack cocaine has always been radically disproportionate to the interests of justice. Created by Congress as an independent agency through the Sentencing Reform Act in 1984,2 the Sentencing Commission’s primary purpose  x Crack, Rap, and the Punitive Turn was to “rationalize the federal sentencing process” by using an “empirical approach” to develop guidelines that federal courts would be required to follow.3 The guidelines, hence, were to be followed as law. While Kimbrough is important on many levels, with future implications yet to be seen, its significance so far has been to uphold the excision of the guidelines ’ status as law.4 The guidelines are now just that: advisory, instead of mandatory. While Kimbrough and the cases that led up to it have been technically concerned with the issue of due process at sentencing,5 Kimbrough is significant in that both the trial judge and the Supreme Court explicitly drew on a series of the commission’s own in-depth studies that have, in no uncertain terms, consistently challenged the federal government ’s punishment of crack cocaine.6 In 1995, 1997, 2002, and, again, in 2007, the Sentencing Commission—the very body created by Congress to implement rational, empirically based sentencing guidelines—has detailed the irrational punishment of crack, stating, in the words of the 2007 report, that “the 100-to-1 drug quantity ratio significantly undermines the various congressional objectives set forth in the Sentencing Reform Act.”7 While President Obama’s repeal of the mandatory minimum for the simple possession of crack cocaine is a significant move toward evidence-based drug policy, for over twenty years Congress clung to a sentencing structure that punished minority populations at an overwhelmingly disproportionate rate despite near-unanimous condemnation .8 Both the Court’s decision in Kimbrough and the repeal of the mandatory minimum for simple possession, then, have underlined the profound irrationality at the heart of the federal government’s punishment of crack cocaine. For one thing, in destatutizing the guidelines, the Court, paradoxically, allowed the commission’s recommendations concerning crack to be followed in its advisory role, the way it never was followed in its mandatory role. The irrationality of crack’s punishment, therefore, is at the forefront of renewed efforts at both the state and federal levels to reform a criminal justice system that has long been perceived by a broad range of critics, researchers, and politicians as being overly harsh and fundamentally counterproductive. In the words of Senator Jim Webb, whose recently proposed legislation—the National Criminal Justice Act of 2009—aims at “nothing less than a complete restructuring” of punishment in the United States, “America’s criminal justice system is broken,” and “[o]ur failure to address these problems cuts against the notion that we are a society founded on fundamental fairness.”9 Crack, Rap, and the Punitive Turn x  In fact, by many accounts, we are at a...