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THE CRACK VERSUS COCAINE SENTENCING
DISPARITY:
A SOCIAL HISTORICAL ANALYSIS OF RACE-BASED
LAWS WITHIN THE UNITED STATES

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Ronald Oreadis Craig

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THE CRACK VERSUS COCAINE SENTENCING DISPARITY:
A SOCIAL HISTORICAL ANALYSIS OF RACE-BASED
LAWS WITHIN THE UNITED STATES
By

Ronald Oreadis Craig

A DISSERTATION

Submitted to
Michigan State University
in partial fulﬁllment of the requirements
for the degree of

DOCTOR OF PHILOSOPHY

Department of Criminal Justice

2004

ABSTRACT
THE CRACK VERSUS COCAINE SENTENCING DISPARITY:
A SOCIAL HISTORICAL ANALYSIS OF RACE-BASED
LAWS WITHIN THE UNITED STATES
By

Ronald Oreadis Craig

This dissertation explores the legal sentencing disparity when using race as a
variable regarding crack versus cocaine laws. Several studies have established that
African Americans are found in possession and convicted of having the crack ‘rock
cocaine’ drug. While more whites are found in possession and convicted of having raw
powder cocaine. According to federal law, a lesser amount of crack equals mandatory
minimum of ﬁve years in prison. Yet, possession of raw cocaine equals ﬁve years of
probation. In order to adequately address the sentencing disparity dilemma, one has to
review the impact of crack on the community, its lethal potency, and the social and
historical aspects of the development of laws concerning it in the United States.

History and sociology will provide the means to cultivate a social historical
perspective on the transition of African-Americans (Blacks) in the United States. History
provides a way to explore the advancement of the plight of African-Americans and the
impact that legislation has on this group. In this approach, the student contends that both
sociology and history are intertwined in the development race based laws. A content

analysis is implemented in order to bring comprehension to this disparity.

Copyright by
RONALD OREADIS CRAIG
2004

This dissertation iS dedicated to my loving wife Juanita and children Makare’ and Jabari

iv

ACKNOWLEDGMENTS

I wish to acknowledge the following who supported the academic endeavor; to the
Creator Almighty God for providing blessings, direction, guidance, and patience; my
wife and children Juanita, Makare’ and Jabari; the extended Craig and Pearson families,
the James family, Atkins family, Meeks family and Richardson family; the dissertation
committee, Chair Dr. Charles Corley, Dr. Vince Hoffman, Dr. Lee June, Dr. Homer
Hawkins; finally, for all the uplift and encouragement to persevere from the brothers of

Omega Psi Phi Fraternity Inc.

TABLE OF CONTENTS

LIST OF TABLES ................................... viii
INTRODUCTION........................... ........ 1
Purpose of the Present Research . ........................ 1
Signiﬁcance of the Problem ............................ 3
The Addictive Potency of Crack .......................... 4
Basic Precepts of Conﬂict Theory ......................... 7
REVIEW OF LITERATURE ............................. 8
The Origin and Evolution of Conﬂict Theory’s Impact on Criminal Justice. . . . 8
Marxism, Conflict, Capitalism, and the Economy of Crime ...... 8
Conflict Theory and the Origins of Law. . .............. 10
Law as an Instrument of Conﬂict Theory ............... 17
Why History is Germane to Conﬂict Theory .............. 19

Criticisms of Conﬂict Theory and its Component Areas of Empiricism,
Objectivity, Tentativeness, Ethical Neutrality, Reliability, Validity,

and Limitations ................................... 22
Empiricism ................................ 23
Objectivity. . . ............................. 23
Tentativeness ............................... 24
Ethical Neutrality ............................ 24
Reliability ................................. 25
Validity .................................. 26
Limitations ................................ 26

METHODS ....................................... 29

Research Design, Selection of Variables, and Data Limitations ......... 29
Research Design . ........................... 29
Selection of Variables . . . ....................... 30

Limitations of the Uniform Crime Report as a General Indicator of Crime

and Critical Analysis of Utilizing Existing Law Enforcement Data ...... 31

Missing Data .................................... 32

Validity of Utilizing Existing Data ......................... 33

vi

FINDINGS ....................................... 34
The History of Conﬂict within the United States for both

African and Chinese Americans . . ...................... 34
Chicago Labor Riots of 1919, Episodes of Law

Supporting Unfair Practices ...................... 35
The Dred Scott Decision-an Argument for Police Regulation ..... 38
Whippings, Floggings, and Beatings Sanctioning Violence ............. 4O
Convict-Lease, Peonage, Creating the Lumpenproletariat ....... 4]
The Chinese Exclusionary Act ..................... 45

The Social Historical Impact of Enforcing the Law as an Instrument
of Conﬂict Theory Within the United States ................... 48
Rockefeller Drug Laws, a Guide for Federal Expansion ............. 48
Legislation and Congressional Response to the Crack Cocaine Epidemic. . . . 50
Equal Protections and the Crack Statutes I: The United States v. Clary . . . . . 53
Equal Protections and the Crack Statutes H: Statistical Analysis ........ 56
The Supply and Demand of Crack Cocaine, A Business Perspective ...... 64
The Demographical Impact of Sentencing .................. 65
Impact of Mandatory Minimum Drug Sentencing ............... 67
The Parallels of Slave Labor, Including Leasing Newborn Babies ....... 69
Acrimonious Blacks, Profiles and Symbolism ................. 74
CONCLUSION ................................... 75
Has The Law Achieved ItS Purpose? ........................ 75
Limitations and Minimizing the Adverse Effects .................. 79
Recommendations for Further Study ......................... 82

REFERENCES ................................... 85

vii

LIST OF TABLES

Table Page
1 Penalties for Crack Versus Cocaine .............. 58
2 Number of persons in custody of State Correctional Authorities

by most serious offense from 1980-2001 ............ 60
3 Mean and Median Length of Imprisonment of Federal Drug

Offenders, 2001 ......................... 61
4 Race/Ethnicity of Federally Sentenced Crack and

Cocaine Offenders, 2001 .................... 62
5 Percent of Crack and Cocaine Offenders Receiving

Mandatory Minimum Sentences, 200] ............. 63
6 Defendants Sentenced for Cocaine Offenses by Circuit, 2001 .66

7 Areas of Each Circuit ...................... 67

viii

INTRODUCTION

Purpose of the Present Research

Criminal deviant behavior is often disproportionately associated with African-
Americans, and Black males in particular. During the early 19805, crack rock cocaine
exploded into the Black communities throughout the country. AS a result, gang
violence escalated, which resulted in law enforcement using tactics including State-
sanctioned, drug-dealer proﬁling. For instance, it was determined in this proﬁling that
Black males between the ages of 15-25 dressed in upscale sweat suits, layered with
gold jewelry around their necks, and driving expensive cars that were beyond their
financial means, were potential dealers (Lusane, 1991). Outcomes of this proﬁling
included a rise in gang activity and an explosion in the Black prison population.

In addition, state and federal governments enacted harsh penalties for drug
trafficking. Gang membership skyrocketed during this period because of a lack of
jobs and economic resources. Therefore, because it is inexpensive to make crack rock
cocaine, poor Black communities became the ideal marketplace for unemployed youth
street gang members to sell this product (Lusane, 1991). At a minimum, income
generated from the sale of crack rock cocaine provided money for the basic quality-Of-
life needs such as rent, food, clothing, and utilities. The drug economy became an
employment agency used by the existing gang network, comprised primarily of Black

males, who ran the drug houses and sell drugs on street corners (Anderson, 1990).

In response to this growing crime of making, distributing, and selling crack
rock cocaine, the United States Congress made a distinction regarding crack cocaine.
They set mandatory minimum sentences for the possession of powder cocaine and
other drugs. This was the only federally mandated penalty for a ﬁrst-time Offense Of
possession of a controlled substance. The new law provided that possession of more
than ﬁve grams of crack cocaine would bring a minimum prison sentence of ﬁve
years. This is in contrast to the law that provides that possession of any quantity of
other illegal substances by a first-time offender—including powder cocaine—is a
misdemeanor offense and punishable by a maximum of one year in prison (Chitwood,
Rivers, & Inciardi, 1996; Cockburn& St. Clair, 1998; Conaboy, 1995; Gray, 2001;
Jacobs, 1999; Mauer, 1999b; Reinarman& Levine, 1997). The statute presented a
100:1 quantity ratio of powder to crack cocaine and so subsequently it takes 100 times
the quantity of powder cocaine, as compared to crack rock cocaine, to bring
mandatory minimum penalties (Appleby, Hunt, & Jacob, 1994; Chitwood et al., 1996;
Cockburn et al., 1998; Conaboy, 1995; Gray, 2001; Jacobs, 1999; Mauer, 1999b;
Reinarman et al., 1997). In essence, the mandatory minimum guidelines
differentiation means that for any given quantity of cocaine, sentences for offenses
involving crack cocaine are much more severe than Similar offenses involving powder
cocaine.

Key in this sentencing disparity debate is that drug trafﬁckers of crack cocaine
are much more likely to be Black, while trafﬁckers of powder cocaine are more likely
to be White (Lusane, 1991; Mauer, 1999b). However, it is true that both forms of

cocaine are a derivative of the same substance. In fact, the Commission deﬁned

powder cocaine and crack cocaine as two forms of the same drug, both containing the
same active ingredient — the cocaine alkaloid (Conaboy, 1995). Simply put, you get
crack rock cocaine when water is added to it and the temperature of this substance
lowered until it becomes hardened, thus creating “ice.”

This dissertation examines the origins and impact of the aforementioned drug
laws on the. African American community. It is the main thesis of this dissertation that
the escalation of arrests among African Americans and the subsequent increase in

incarceration rates are attributed directly to the implementation of mandatory

minimum drug laws.

Significance of the Problem

This dissertation explores the legal sentencing disparity when using race as a
variable regarding crack versus cocaine laws. Research by the United States
Sentencing Commission (USSC) indicates that more African Americans are arrested
and convicted for possession of the crack drug (O'Bryant& Seghetti, 2002; U.S.S.C.,
2001). While according to the Commission’s report more Whites were convicted for
possession of raw powder cocaine, approximately 83% of the federally sentenced
crack cocaine offenders were African American (U.S.S.C., 2001). According to
federal law, 5 grams of crack equals a mandatory minimum sentence of ﬁve years in
prison. Yet, possession of raw cocaine for the same amount equates to a probation
sentence.

In order to adequately address the sentencing disparity dilemma, one has to

review the impact of crack on the community, its lethal potency, and the social and

historical aspects of the development of laws concerning it in the United States. In
this dissertation history and sociology will provide the means to cultivate a social
historical perspective on the transition of African-Americans (Blacks) in the United
States in both the antebellum and post—bellum periods. History provides a way to
explore the advancement Of the plight of African-Americans and the impact that
legislation has on this group.

The literature review section provides two Specific aspects. First, it gives
specific examples of research that examine the creation of laws pursuant to the social
status of ethnic/minority groups. Secondly, it looks at the theoretical framework using
conﬂict theory with a social historical description of the origins of the crack cocaine

law in relationship to the evolving social status of African-Americans.

The Addictive Potency of Crack

Given that the focus of this dissertation is on crack and cocaine it would be
helpful to discuss the addictive nature of crack. The reason for this in that some may
argue that there may be a major factor in the sentencing disparity, a view that I reject.
Crack cocaine is a solid form of freebased powder cocaine hydrochloride mixed with
baking soda or sometimes ammonia. The cOcaine powder mix is heated until it
hardenS, and then broken into small pieces referred to as rocks. This methodological
process increases the potency of crack, rendering it much stronger than when snifﬁng
cocaine. Crack is packaged in small vials, sold, and then smoked in small pipes.
Upon heating and inhaling the vapors, crack travels through the lungs, into the

bloodstream, and reaches the brain within eight to ten seconds (Crack Cocaine - Crack

Cocaine Addiction, 2004). The effect is a ‘high’ of euphoric proportions comparable
to a mental orgasm that is far more intense than achieved by snorting cocaine. The
high is nearly immediate and produces a rapid heartbeat and lasts 15 to 20 minutes,
followed by a depressing crash (coming off the high). Often only one use will entice
an individual into being an addict.

The physical effects of crack addiction include nausea, anxiety, insomnia, and
loss of appetite, damage to nasal cavities, convulsions, possible heart attack, and
violent behavior. Habitual use may lead to cocaine psychosis, causing paranoia,
hallucinations, and a condition known as formication, in which insects or snakes are
perceived to be crawling under the skin (Crack Cocaine - Crack Cocaine Addiction.
2004). Ultimately crack impacts the automatic nervous system that controls the
sympathetic system. The sympathetic system Speeds up the heart and breathing, while
the automatic nervous system, which controls the parasympathetic system, slows
things down. Smoking crack causes the brain to release high levels of dopamine all at
once. This is the chemical the brain releases when feeling pleasure. For example,
laughter causes the brain’s neurotransmitters to release a small amount of dopamine.

Lawmakers have argued that crack is more dangerous than cocaine and
therefore it is justifiable to have a more punitive sentence. However, in May 2002 the
Sentencing Commission submitted a comprehensive report Congress entitled “Cocaine
and Federal Sentencing Policy.” The Commission found:

Current penalties exaggerate the relative harrnfulness of crack cocaine. The

negative effects of prenatal crack cocaine exposure are identical to the negative

effects of prenatal powder cocaine exposure and are Si gnificantly less severe

than previously believed. In fact, the negative effects from prenatal cocaine
exposure are similar to those associated with prenatal tobacco exposure and

less severe than the negative effects of prenatal alcohol exposure (HR. 4026
The Powder-Crack Cocaine Penalty Equalization Act of 2002, 2004).

 

A Study published in the Journal of the American Medical Association by
Dorothy K. Hatsukami, University of Minnesota, and Marian W. Fischman, Columbia
University, shows that the physiological and psychoactive effects of the two different
forms of cocaine are so similar that the 100:1 sentencing disparity is ”excessive”
(Hatsukami& Fischman, 1996) The Study also Shows that the "route" of the cocaine
use, not the form of the cocaine, determines the rate of onset and the intensity and
duration of the drug's effect. "The more immediate and greater the magnitude of
effect, the greater likelihood that the drug will be abused. Intravenous and smoked
cocaine achieve maximal concentration and effect most rapidly," according to the
authors (Hatsukami et al., 1996). However, the authors concede, "to some extent,
form dictates route (i.e., crack cocaine can only be smoked)." The authors propose a
new ratio of as little as 3:1 or 2:1, Stating that some disparity in sentencing might be
justified due to evidence Showing "a greater abuse liability, greater propensity for
dependence, and more severe consequences when cocaine is smoked” (Hatsukami et
al., 1996). The researchers conclude that crack is more dangerous because it is more
available, easier to use, and less expensive than powder cocaine. Concluding their
study, Drs. Fischman and Hatsukami argue that, to a greater extent, although crack'
cocaine has been linked with more crime than cocaine hydrochloride, many of these
crimes are associated with addiction to cocaine. Therefore, those addicted individuals
who are incarcerated for the sale or possession of cocaine are better served by

treatment than prison (Hatsukami et al., 1996).

Basic Precepts of Conﬂict Theog

Conﬂict Theory provides a theoretical framework with the fundamental
premise of law as the primary instrument that maintains the power of the dominant
group in society and control of behaviors of individuals who threaten such power
(Quinney, 2001). This outlines the works of both traditional conﬂict theorists such as
Ralf Dahrendorf and non-traditionalists such as W.E.B. Du Bois.

This review of literature includes a historiography of laws that criminalized the
activities of African—Americans. This methodology accomplishes two purposes: the
first an overall analysis of the basic tenets of conﬂict theory and the second an analysis
of the effects, as seen through the lens of an African-American theorist.

Conﬂict theory is based on the idea that society is made up of groups competing
with each other over scarce resources. Different interests produce conﬂicting deﬁnitions
of crime that are determined by the group in power. For example, a prison sentence for
the distribution of crack cocaine (the form of the drug generally trafﬁcked by African
Americans), is ten to ﬁfteen years longer than it is for the distribution of powder cocaine,
which is favored mainly by the White middle and upper classes, even though it is the
same substance in its raw form.

The purpose of this dissertation is to examine the origins and impact of crack
rock cocaine versus powder cocaine punishment using a social historical analysis
premised with a conﬂict perspective. The primary overarching hypothesis for this
study is that higher arrest and incarceration rates of African Americans can be directly

attributed to enforcement of the aforementioned laws.

into action that make it possible for each group to articulate their ideas. For example,
historically particular forms of property, including slavery, feudal landholding, and
capital, are upheld by the coercive power of the state. AS a result, property divisions,
that is, Slaves and slave-owners, serfs and lords, capitalists and workers, form classes.
These divisions are subsequently opposing agents in the struggle for political power.
Marx contends that material contributions determine the extent to which social classes
can organize effectively to fight for their interests. Such conditions of mobilization
are a set of intervening variables between class and political power (Runciman, 1992).

Bonger (1969) argued that Simple crimes are the results of poverty, while fraud
and embezzlement stem from greed. Social order is perceived as founded on organized
solidarity or coercion. There is an ideological realm of beliefs, such as religion and
law that leads to an underlying theme that perpetuates a struggle for power. Ideas and
morals do not occur prior to interaction, but are socially created, and best serve the
interests of relevant individual parties in the conﬂict. In reference to African
Americans, Bonger noted:

The circumstances in which Negroes live are very different from those of

the whites and are strongly conducive to crime. When they were freed

from slavery after the Civil War (1861-65), the Negroes were left to their

fate under the most difﬁcult conditions. Unadjusted to their entirely new

surroundings, [they were] despised and oppressed by whites. . .. In spite

of the greatest difﬁculties, they have worked themselves a little way up

but are still held back in every respect by whites (Bonger, 19692133).

Expanding on Bonger’s summation, Marable (2000) noted that African
Americans are often prosecuted for the same crimes as Whites but are less likely to be

able to afford adequate legal representation. Blacks more frequently receive prison

sentences, versus probation. Real crimes are a matter of conﬂict between individuals

in a stratified society as a result of capitalist economic distribution. Marable asserts
that American capitalism is preserved for two essential and integral factors: fraud and
force. Fraud is the ideological and cultural hegemony of the capitalist creed; that is,
the belief that enterprise is free and competition exists for all in the marketplace.
Force is generally disguised within a capitalist society with democratic forms of
government (Marable, 2000).

The oppressed Black minority is generally given to violence because it: (1) is
concentrated in the lowest paid, blue collar, unskilled and service sectors of the labor
force; (2) is comprised of a substantial portion of the US. reserve army of labor (the
last hired and the ﬁrst ﬁred during periodic recessions); and (3) is the historic target
for brutality within a racist culture and society, occupying a perceived inferior racial
position which has remained unaffected Since the demise of Slavery (Marable, 2000).

Marable (2000) further argued that property crime is a social creation.
Robbery and theft are deemed crimes because of the component of owning property in
a capitalist society. It is this system that requires those to sell their labor to acquire

goods and for others to exist who have the means of contracting the labor.

Conﬂict Theory and the Origins of Law

The conﬂict perspective is based on the premise that societies are composed of
groups with different interests and values with the dominant economic, political, and
social power groups in control of the organized state. It iS the control of these
resources that generates the major portion of conﬂict in society. Control of these
resources creates a dominant power, and that power is utilized to expand the resources

of one group at the expense of others (Quinney, 1980). Thus, policy and law are

10

formulated and implemented to protect the interests and values of the dominant group.
For that reason, conﬂict establishes a relationship between power relationships, law,
and deﬁning crime. Law, and the creation of laws, are identiﬁed as the instrument that
maintains the power of the dominant group and controls the behavior of individuals
who threaten that power elite (Quinney, 2001). Power relationships are determined by
those with the means to inﬂuence the majority’s public opinion in order to meet their
own personal interests (Siegal, 20001168). Conﬂict is produced by the unequal
distribution of power through a perceived competition for dominance.

The ability of the powerful majority to control people is exempliﬁed by the
relationship between the U. S. justice system and African Americans. The ways the
justice system victimizes Blacks have been well-documented (Georges-Abeyie, 1989).
Under this structure, the powerless were more likely to be deﬁned as criminals. As
such, the most powerful group(s) has the means to deﬁne or legislate behavior that iS
deemed unacceptable and results in the less powerful being criminalized and
experiencing statistically higher crime rates. For example, when law enforcement iS
highly concentrated in predominately Black neighborhoods, it usually results in higher
arrest and crime rates.

Thorsten Sellin (1938) contends that cultural conﬂict is the foundation of
crimes committed by different groups through society’s cultural diversity. These
various groups learn different conduct norms depending on the resources of the
community. Consequently, these norms conﬂict with other groups over time as the
dominant group transitions them into criminal law. Then, because of the availability

of more resources, the dominant group sets the legal standard through its control of the

formulated and implemented to protect the interests and values of the dominant group.
For that reason, conﬂict establishes a relationship between power relationships, law,
and deﬁning crime. Law, and the creation of laws, are identiﬁed as the instrument that
maintains the power of the dominant group and controls the behavior of individuals
who threaten that power elite (Quinney, 2001). Power relationships are determined by
those with the means to inﬂuence the majority’s public opinion in order to meet their
own personal interests (Siegal, 20002168). Conﬂict is produced by the unequal
distribution of power through a perceived competition for dominance.

The ability of the powerful majority to control people is exempliﬁed by the
relationship between the U. S. justice system and African Americans. The ways the
justice system victimizes Blacks have been well-documented (Georges-Abeyie, 1989).
Under this structure, the powerless were more likely to be deﬁned as criminals. AS
such, the most powerful group(s) has the means to deﬁne or legislate behavior that is
deemed unacceptable and results in the less powerful being criminalized and
experiencing statistically higher crime rates. For example, when law enforcement is
highly concentrated in predominately Black neighborhoods, it usually results in higher
arrest and crime rates.

Thorsten Sellin (1938) contends that cultural conﬂict is the foundation of
crimes committed by different groups through society’s cultural diversity. These
various groups learn different conduct norms depending on the resources of the
community. Consequently, these norms conﬂict with other groups over time as the
dominant group transitions them into criminal law. Then, because of the availability

of more resources, the dominant group sets the legal standard through its control of the

legislative, executive, and judicial functions that are external manifestations of
authority resulting in power structures that reﬂect the values and norms of the
dominant group (Lilly, Cullen, & Ball, 2002).

The conduct norms of the less powerful are antithetical to the established crime
norms. This leads to deviant behavior and criminal classifications of the normal
conduct of oppressed groups. Sellin (1938) further contends that as these group
populations grow, they will present a larger threat and the frequency of the conﬂicts
will increase. The conﬂation of blackness and crime in collective representation and
government policy thus reactivates race by giving a legitimate outlet to the expression
of anti-Black animus in the form of public vituperation of criminals (Wacquant,
2002:41). In his article he states:

Throughout the urban criminal justice system, the formula ‘Young +

Black + Male’ is now openly equated with ‘probable cause’ justifying

the arrest, questioning, bodily search and detention of millions of

African American males every day (2002241).

Vold and Bernard (1998) postulated that groups are formed out of Situations in
which members have common interests and needs that can be best furthered through
collective action. The theoretical framework’s foundation supports the view that
humans are fundamentally group-involved beings and are products of group
associations. As new interests continue to form, new groups form around these
interests with the process weakening the existing groups. Groups come into conﬂict
with one another as the interests and purposes they serve overlap, encroach on each

other, and become competitive. Competition between groups promotes individual

loyalty to each respective group.

Legislative politics present the most visible area of conﬂict between groups.
First, conﬂict has to exist before any legislation can be adopted and enacted. Second,
the dominant group utilizes the state for assistance in defending and protecting their
interests. Demand for the creation and implementation of laws helps to maintain the
social order. Once a new law is adopted, those who oppose it are more likely to
violate the law because it defends interests and purposes that are in conﬂict with their
own. Promoters are more likely to obey the law(s) and demand enforcement by police
(Vold& Bernard, 1998). The majority controls the police authority over the state and
it is these law enforcement agents who consequently decide who is most likely to
violate the law. Subsequently, lawmaking, lawbreaking, and law enforcement are the
results of conﬂict between group interests. Groups with lesser political, economic, and
social resources are unable to promote and defend their interests adequately. Vold and
Bernard (1998) argued, that sociological conﬂict is the basis for understanding this
kind of conﬂict, including its limitation in failing to explain impulsive and irrational
criminal acts.

McGarrell and Castellano (1991) propose that there are three levels used in
analyzing the criminal law formulation process. These levels are deﬁned as
(1) structural foundation, (2) enactment of criminal law, and (3) enforcement of
criminal law.

The ﬁrst level describes the structural foundation of crime and conﬂict in
societies. Societies differ in heterogeneity in things such as race, ethnicity, religion,
urbanization, and economic and political inequality, followed by the contention that

greater differentiation (based on the aforementioned) is associated with more

interpersonal and inter-group conﬂict. These higher levels of conﬂict, in turn, lead to
a greater use of criminalization as a method of dealing with conﬂicts between groups.

Certain cultural beliefs in individual responsibility, and the tradition of
vi gilantism, can interact with high social differentiation to produce even greater
criminalization (McGarrell et al., 1991). Complex, highly differentiated societies are
composed of people who live under very different conditions. A person’s values or
beliefs about what is good, right, and just, or at least excusable and his/her interests
(what rewards or benefits the person), are generally Shaped by the.conditions in which
the person lives (McGarrell et al., 1991). Therefore, the more complex and
differentiated that societies are, the more people within the society have different and
conﬂicting values and interests.

With regard to individual action, people tend to act in ways that are consistent
with their values and interests. That is, they tend to act in ways they think are good,
right, and just, or at least excusable. They also tend to act in ways that benefit
themselves personally (McGarrell et al., 1991) . When values and interests come into
conﬂict, people tend to adjust their values to come into line with their interests. Over
time, people tend to believe that the actions that benefit themselves personally are
really good, right, and just, or at least excusable. Because the conditions of one’s life
(and therefore one’s values and interests) tend to be relatively Stable, people tend to
develop relatively stable patterns of actions that beneﬁt themselves.

Law is used as the instrument to maintain the power of the dominant group in
society and to control the behavior of individuals who threaten that power (Quinney,

2001). As such, the dominant group utilizes its ability to criminalize conduct it deems

l4

as unacceptable. In contrast, theories arguing solely on the basis of class fail to
adequately address the actions of racial profiling, police brutality, or suspected
criminal deviance. Race is the determinate variable that designates what phenotypic
characteristics apply to which racial groups. Class affects the process, however, and
racism is incorporated as a component at every stage of capitalism. For examples, one
form of racial proﬁling, that is, “driving while Black” (D.W.B.), or the administration
of capital punishment sanctions, are incorporated as a natural function of capitalism
when arrests result.

Racism, or some degree of it, is considered to be normal. To reject racism and
its facets is symbolically abnormal (Armour, 1997). Racism beneﬁts the bourgeoisie
absolutely and relatively White working class Whites are usually part of the larger
social mechanism of racist accumulation which helps contribute to Black exploitation
(Marable, 2000).

Expanding on the theoretical view of conﬂict theory and its impact
criminologist Samuel Walker (1999) contends:

Conﬂict theory explains racial disparities in the administration of

justice as products of broader patterns of social, economic and political

inequality in US. society. Such inequalities are the result of prejudicial

attitudes on the part of the white majority and discrimination against
minorities in employment, education, and housing (Walker, Spohn, &

Delone, 19992156).

In essence, conﬂict theory attempts to clarify the overrepresentation of African
Americans within the criminal justice system. This includes all aspects of the system,
including arrest, prosecution, conviction, length of incarceration, and capital

punishment. Accordingly, those who dominate the political and legislative majorities

control each of these aspects.

The second level of conﬂict between groups focuses primarily on the
enactment of criminal law. Crime, itself, is produced by factors described within the
first theoretical level. The enactment of criminal laws is part of a conﬂict and
compromise process in which organized groups and, to a much lesser extent, private
individuals attempt to promote and defend their values and interests (Vold et al.,
1998). Speciﬁc criminal laws usually represent a combination of the values and
interests of many different groups, rather than just one particular group. Nevertheless,
the greater a group’s political and economic power, the more criminal law, in general,
tends to represent the values and interests of that group. Therefore, in general, the
greater a group’s political and economic power, the less likely it iS that actions
consistent with the values and interests of group members will violate the criminal
law, and vice versa (McGarrell et al., 1991).

The third level of conﬂict between groups focuses on the enforcement of
criminal law(s). By enacting new legislation, more criminal behavior is deﬁned and
that increases the punitive response by the system. The framework incorporates ideas
of power relationships and the effects of differentiation on crime and criminal justice
by interrelating theory of criminal behavior with theory of criminal law. AS such, this
theoretical perspective generalizes social and structural characteristics and moves
through the processes by which individuals within similar social Structural locations
learn similar patterns of behavior. It concludes by relating those patterns of behavior
to the processes of enacting and enforcing criminal law to explain the distribution of

crime (Vold et al., 1998).

In general, the more political and economic power a person has, the more the
person is able to obtain ofﬁcial intervention from law enforcement agencies when he
or She is victimized by someone else. Additionally, the more political and economic
power a person has, the more difﬁcult it is for official law enforcement agencies to
process the person when he/she victimizes someone else (Vold et al., 1998).
Therefore, law enforcement agencies tend to process individuals with less, rather than
more, political and economic power. Specifically, the greater the power differential
between the victim and the Offender, the more likely an offender will be processed if
the offender is less powerful than the victim, and the less likely the offender will be
processed if the offender is more powerful than the victim. Because of the processes of
criminal law enactment and enforcement, the ofﬁcial crime rates of individuals and
groups will tend to be inversely proportional to their political and economic power.
These processes are independent of any other factors that might also inﬂuence the
distribution of official crime rates (e. g., social, psychological, or biological factors
affecting the behavior of offenders or the behavior of criminal justice agents) (Vold et

al., 1998).

Law as an Instrument of Conﬂict Theory

Donald Black (1980) visualized law as a governmental social control that
posits the normative relationship between a state and its citizens and codiﬁes through
legislation and litigation. Consequently, law is an instrument that measures the
morality of society, that is, a method of determining what is good or bad. It is a
quantitative variable that can be measured in degrees during periods of time or in

particular settings, and determined by reviewing the extent to which it is applied. Just

as there are degrees of freedom, there are degrees of law. A complaint is more law
than no complaint, an indictment is more law, and a conviction is even more law
(Black, 1980). Therefore, the variables of law can be measured historically in various
settings and with different social indicators.

In contrast, law may also be viewed as a qualitative variable in that different
types of laws exist throughout the same social conditions. In this respect different
types of laws are defined as being used for various individual actions. A theory of
law, therefore, would set up predictions Of how the degree and Style of law would
change across social settings and between particular individuals. Black (1980)
contends that law has an inverse relationship with other forms of social control. It
increases at the point of perceived differentiation. Thus, African Americans
historically have constituted a group with various points of differentiation for which
more laws have been created. In this model, the Style of law is also different in that
the greater the relational distance among racial groups, that is, Blacks and Whites, the
more likely the law will involve punishment rather than reconciliation. Strangers are
more likely to see themselves as adversaries, while those who are friends will tend to
try to reestablish harmony (Black, 1980). Accordingly, African Americans do not
create the law, and therefore, they do not embrace any of its harmonious aspects.

Black ( 1980) also Speaks of differences in law based on radial position. By
this he means that the degree of integration or importance to the society determines the
position. When considering a circle with its center and periphery, those at the center
are more important than those at the margin, or edges, which is the least important,

and centrifugal law is greater than centripetal law. This means that the offense of a

marginal person or a group against an integrated person will involve more law than
vice versa. While centrifugal law varies directly with radial distance, centripetal law
varies indirectly with radial distance (Black, 1980). Principally those who are
marginal are more deviant because they are more likely to be defined as such, not just
in terms of labeling theory, but also because norms and judgments are more likely to
be exercised outwardly. Therefore, people on the margin are more likely to be
pursued, judged, and punished than those at the center. Punishment will also differ by
typology. White-collar crime near the radial center, for example, would receive a
different punishment than that of blue-collar crime and crimes that cross race and class

tend to benefit those near the center or the top.

Why History iS Germane to Conﬂict Theory

History is a series of epochs. These epochs may be described in terms

of their static aspect, the mode of production, or social structure, which

is represented and defended by the ruling class. The core element of

any social structure, and the basis of class rule, is functioning property,

the economic system of ownership and dependence. Social structures,

and the ruling class, do not change much in the course of an epoch

(Dahrendorf, 1967:20).

A study without a comparative historical analysis would be inadequate and
severely flawed. To understand adequately a historical period of study, one must ﬁrst
have insight into the world of these respective elemental groups. First, changes in
history are because of the interaction of elements within the social structure and are
necessary. Second, measures are Observed over time that allow for introduction and

removal of various social elements. Finally, comparative elements are Blacks as the

subordinate group and Whites as the elite dominant group.

C. Wright Mills (2000) proffers that a researcher must expand the temporal reach
of the analysis. Without the use of history and without an historical sense of
psychological matters, the social scientist cannot adequately state the kinds of Spurious
problems sought in orienting his studies. He contends'that a researcher must have an

6‘

understanding of present day comparative facts: ...you must know the historical
phases and the reasons for varying rates and varying directions of development and
lack of development (2000221 1).”

Mills further asserted that both comparative and historical studies are
intertwined and that a researcher must temporally expand his/her analysis. This is
accomplished by knowing the historical phases and reasons for varying rates and
varying directions of development, as well as lack of development. For the historian,
no aspect of social life is off limits in his/her research. Ultimately, the researcher’s
purview is social science emphasizing the study of changes over time. However,
unlike the social scientist, the historian does not engage in comparative studies when
presenting an organized memory of humankind.

Social science differs in the historical perspective in the way comparative
modes of research are emphasized. Mills asserted that history is indispensable to
social science and that it contains a multitude of resources from which the social
scientist can draw. History is a necessary component for a well-conceived and
developed social science. Subsequently, every well thought-out social science Study
requires an historical scope of conception and a full use of historical materials

(Dahrendorf, 1967220). In order to utilize conﬂict theory as a theoretical basis for this

research, the history component must be included to strengthen its validity.

20

Delinquency in colonized countries is the direct result of the existence of a
lumpenproletariat (Fanon, 1967).

According to Vold and Bernard (1998), crime is a byproduct of a group’s
struggle within society, as opposed to individual law violators. Because people are by
nature social beings, groups are formed from those with shared interests and needs.
Competition is produced in order to maintain and/or expand one position relative to
the group in control of the necessary resources (i.e., money, education, employment),
thereby causing an interaction between these groups. This competition is expressed as
a political struggle/conﬂict with the group most efﬁcient at controlling political
processes as the one that has the authority to pass laws that limit the fulﬁllment of the
needs of the minority group (Vold et al., 1998).

Ralf Dahrendorf (1959) expanded on Marxism's emphasis that social relations
of production is the key to understanding power and focused on the struggle for
institutional authority in a modern industrial society. This is power that is embedded
in the structural relations characteristic of a given society and is legitimate power that
is often divorced from ownership of productive forces. Then this power presents
control in the social institutions that dominate everyday life and leads to the authority
vested in groups that control key positions in religious, educational, governmental, and
even family relations. This authority can be linked to economic position, but it is not
necessarily dependent upon it (Dahrendorf, 1959). For the African American, these
key positions are outlined by and central to the regulation of their existence. In

addition, the idea that dependence is not totally based on economic standards conﬂicts

21

with African Americans and exceeds class arguments, but does not wholly dismiss
them.

Allen Liska (1987238) raised two fundamental questions addressing this
notion: First, under what conditions are authority—subject cultural and behavioral
differences transformed into legal conﬂict? Secondly, under what conditions do those
who violate laws become criminalized (Liska, 1987238). In other words, under what
circumstances are laws enforced? He addressed these questions in his Six propositions

explaining conﬂict:
Proposition 1: Conﬂict between authorities and subjects occurs when behavioral
differences are compounded by cultural differences.

Proposition 2: The occurrence of conﬂict is more probable the more organized the
authority against those who engage in an illegal acts.

Proposition 3: Conﬂict is more probable the less sophisticated the subjects.

Proposition 4: The probability of enforcement of legal norms increases as the
congruence between the cultural and behavioral norms of authorities
increases.

Proposition 5: The lower the power of the resisters i.e., subjects, the higher the
probability of enforcement.

Proposition 6: The lower the realism of norm violators, i.e. resisters, the higher the
probability of enforcement (1987238)

Criticisms of Conﬂict Theory and its Component Areas of Empiricism, Objectivity,
Tentativeness, Ethical NeutralityLReliabilityLValidity, and Limitations

An examination of the social conditions is necessary to determine proper
application of conﬂict theory as it relates to African Americans and race-based laws.
Those who are reluctant to identify with Marxism may ﬁnd the theoretical perspective

beneﬁcial in that it provides the opportunity to digest conﬂict theory on its merits and

22

thus relinquish any bias toward socialism. AS such, Marxian principles are based on a
class, as opposed to racial model, and advocate a capitalist interest in enforcing the
law against certain groups.

In using an investigative research science approach, ethical principles are
required in the design and execution of the research project. Science implies primarily
an attitude of intellect—one that is distinguished by adherence to several principles.
These principles address the process of implementing the scientiﬁc perspectives of
empiricism, objectivity, tentativeness, ethical neutrality, reliability, validity, and

limitations (Cox& Fitzgerald, 2001).

Empiricism

Empiricism emphasizes the role of first-hand observation Of phenomena. In
this case, the targeted area of study is race-based law within the United States. While
it is plausible for a researcher to speculate on what causes conﬂict with African
Americans, a direct approach is required to fully evaluate the level of impact.
Empirical evidence presents commanding support of the validity of social science

research; however, it’s not without its faults as outlined in the following sections.

Objectivity

NO scientiﬁc research is absolutely absent of the researcher’s subjective biases.
In fact, scientists bring their own values, customs, and norms to the research.
Objectivity does not mean that the facts, and only the facts, are unbiased and
undistorted. The best alternative is to outline the social historical impact of African
Americans and the law in degrees by utilizing empirical observations, including

multiple perspectives (Cox et al., 2001). Cox and Fitzgerald argued that this method

23

empirically strengthened the research. However, constant vigil must be maintained
over one’s own values and points of view. Claims of scientiﬁc knowledge should
always be thought of as tentative. Social scientists, as seekers of knowledge, Should
be acutely aware of potential Shortcomings and make a concerted effort to overcome
them whenever possible through the application of well-established procedures and

safeguards (Cox et al., 2001).

Tentativeness

The aspect of tentativeness requires that the researcher not claim their
conclusion(s) as the ﬁnal universal truth, particularly when addressing conﬂict.
Instead, as more evidence becomes available, research outcomes are subject to change
over time. For example, will there be a continuation of race-based laws as the White
population demographics decreases and the Latino and Black populations’ increase?

Good research not only precisely demonstrates the intent of the ﬁndings but
also offers other explanations that don’t support hypothetical conclusions. As cultures
(including the racial identities therein) continue to change, conﬂict theory will
continue to apply. Dahrendorf contends that social reality escapes theory; therefore,
new theories must be continually developed. In order to do so, class, conﬂict, and
change must be addressed from their origins (Dahrendorf, 1959). Under this premise,

the impact of the research may change over time from its original analysis.

Ethical Neutrality

Ethical Neutrality is the process by which a researcher attempts to not permit

moral or ethical beliefs to inﬂuence the research, particularly in gathering and

24

presenting data in the final analysis (Cox et al., 2001). A breach occurs when the
researcher jeopardizes other areas, including objectivity and tentativeness,

subsequently threatening the whole research.

Reliability

Reliability in research depends on the degree to which categorization and
measurements empirically produce identical results following repeated application of
the same procedures. For example, we can assess the number of arrests and
incarceration of African Americans after the federal crack laws were implemented.
Then, over time, we can reassess the numbers and by comparing the two results
establish whether or not conﬂict theory or some other theoretical perspective is
appropriate for this Study.

Vold and Bernard (1998) asserted that there are three major problems with
testing the accuracy of conﬂict theory. First, the theories are far too methodologically
simplistic. Second, they have not been well guided theoretically, including an
inability to distinguish alternative explanations of deviant behavior. Finally, they have
treated all conﬂict theories alike without giving attention to speciﬁc propositions or
different types of theories (Vold et al., 1998). For example while conﬂict may provide
a sound rationale for crimes committed by African Americans, it fails to consider
other variables that may lead to arrest. Also, Blacks may receive harsher sentences

because they are less likely to be able to afford a private attorney.

25

Validity

A categorization is valid if it reﬂects a characteristic or property of the real
empirical world (Cox et al., 2001). This raises the social historical question that laws
may be created as a tool to control the behavior of African Americans. Ultimately a
determination Should be made as to whether the application of law, in comparison to
the dominant racial group, is valid, i.e. arrest, sentencing, and incarceration rates.

The legitimacy of these questions is addressed by determining the external and
internal validity. External validity refers to the legitimacy of applying external
research beyond the group. For example, can conﬂict theory be expanded to other
groups in addition to African Americans, and would it yield Similar results? This
depends on the homogeneity of the group, that is, African Americans. Internal
validity occurs when variables other than those identiﬁed by the researcher become
apparent and contribute to the observed effects. Researchers have an ethical

responsibility to acknowledge these variables and their impact.

Limitations
AS in other areas of social research, the oversimpliﬁcation of the
conﬂict model is due partly to the fact that it is a perspective rather than

a well-formulated theory with a testable hypothesis (Greene&
Gabbidon, 20012212).

In essence, conﬂict theory is a class theory that does not holistically embrace
racial variations but, rather, is utilized to explain the surface level racial disparities.
In his critique of conﬂict theory, Darnell Hawkins raises critical questions regarding a
testable hypothesis and argued that most authors on the subject fail to present a

consistent testable instrument and thereby leave the theory open for major criticism

26

(Greene& Gabbidon, 2001). Conﬂict theory mainly is framed around Marxian social
class as opposed to race stratiﬁcations. One of the theoretical frameworks for
introducing the conﬂict perspective is that it is utilized on the basis of capitalism as the
foundational root that produces crime and criminals.

Class arguments, for instance, fail to adequately address racial proﬁling, police
brutality, or suspected criminal deviance. Race is the determinate variable that
designates what phenotypic characteristics apply to racial groups. Class has an effect
on the process; however, it does not totally exclude membership. For example, racial
profiling such as “driving while Black” (D.W.B.) or the administration of capital
punishment sanctions has nothing to do with class. Walker, Spohn and Delone
(Walker et al., 1999: 156) expanded on his theoretical view of conﬂict explaining that
racial disparities in the administration of justice are products of broader patterns of
social, economic, and political inequality in US. society. Such inequalities are the
result of prejudicial attitudes on the part of the White majority and discrimination
against minorities in employment, education, housing, and other aspects of society
(Walker et al., 19992156).

Conﬂict theory attempts to clarify the overrepresentation of African Americans
within the criminal justice system, in all aspects of the system, including arrests,
prosecutions, convictions, lengths of incarceration, and capital punishment.
Accordingly, those who dominate the political and legislative majorities, control each
of these aspects.

Racial oppression takes on two dimensions, a physical/structural

dimension, wherein the Structural arrangements of social institutions act

to physically control a member’s perceived inferior group through
discriminatory actions. Socio-cultural dimension, whereby the cultural

27

(prejudicial) beliefs and the Statutory (legal) requirements act to
estimate or sanction these physical controls of the subordinate group
(Aguirre& Baker, 19892249).

The above indicates that racial oppression is correlated with the framework of conﬂict
theory. The postulation of a desire to maintain both physical and structural control is
rooted in the historical plight of African Americans. Sellin (1928) argued that in
conﬂict the subordinate group acts outside of the conducted norms. In this instance,
the norms are based on race, and the conﬂuence is the use of law as legislation
develops on a continuum. The dominant group has the means to decide what the
norms are, and to criminalize those who act outside of these norms. Criminologist
Helen Taylor Greene (2001)offers four alternatives to enhance the viability of conﬂict
theory:

0 Criminal punishment must be seen as contingent not only on race of the
offender but race of the victim.

0 Researchers must recognize the theoretical as opposed to the purely
methodological Significance of grouping crime into categories and using such
grouping to assess levels of racial difference to punishment. Use of such
categories iS important for improving our understanding of dynamics of
assigned punishment for crime across racial groups.

- Power-threat considerations must be considered when assessing temporal or
regional variations in Black and White punishment. Power threat is the actual
or perceived potential of a minority group to pose a realistic challenge to White
political or economic control.

0 This includes a historical examination of race and criminal punishment. That
is variations in levels of punishment by race must be more fully analyzed and
explained within the context of the larger structural forces from which they
emanate and their proper temporal perspective. Such a historical-contextual
analysis would allow for more attention to the political economy of criminal
punishment (Greene et al., 2001:212).

28

METHODS

Research Design, Selection, and Data Collection

Research Begin

The primary data used in this dissertation was obtained from the United States
Sentencing Commission. The United States Department of Justice, Federal Bureau of
Investigation (FBI), Uniform Crime Reports (UCR), and the Bureau of Justice
Statistics compile and report data to the Sentencing Commission. All three agencies
annually collect data and are considered reliable sources by researchers in the criminal
justice ﬁeld.

The FBI, through its National Incident-Based Reporting System (NIBRS),
collects UCR data. Guidelines for reporting crime statistic data by city, county, and
state law enforcement agencies are established in the Uniform Crime Reporting
Handbook and include age, race, and gender. Reported crimes are indexed into
typologies such as robbery, assault, drug trafﬁcking, and so forth. The NIBRS has
two primary goals, the ﬁrst of which is to enhance the quantity, quality, and timeliness
of crime statistical data collected by the law enforcement community (state, county,
and local municipalities). The second goal is to improve the methodology used for
compiling, analyzing, auditing, and publishing the collected crime data (FBI, 2003).
Participation by law enforcement entities brings beneﬁts that include:

An indispensable tool in the war against crime is the ability with

precision when and where crime takes place, what form it takes, and
the characteristics of its victims and perpetrators. Armed with such

29

information, law enforcement can better make its case to acquire the

resources it needs to fight crime and, after obtaining those resources,

use them in the most efﬁcient and effective manner. NIBRS provides

law enforcement with that tool because it is capable of producing more

detailed, accurate, and meaningful data (FBI, 2003).
City, county, and state law enforcement agencies from all fifty States report data by
tallying the number of occurrences of crime, as well as arrest data, and by submitting
directly to the FBI, or established state UCR programs, aggregate counts of the
collected data in monthly summary reports. The tallied data include the numbers of
offenses, clearances, types and values of stolen and recovered properties, and also the
ages, gender, and race of those arrested. The information also includes basic crime

indicators of volume, rates, trends, and an explanation of community demographics

(FBI, 2003).

Selection of Variables

 

AS of April 2, 2001, the total population of the United States was estimated to
be 281,421,906, according to the United States Census Bureau. The breakdown in
races was White (75.1%), followed by Black/African Americans (12.3%), Asian
(3.6%) American Indian/Alaska Natives (0.9%), and Native Hawaiian/other Paciﬁc
Islanders (0.1%). The remaining 12.5% of the population was of Hispanic origin, with
no race Specified.

During 2001, there was a total of 1,586,902 state and local arrests for drug
abuse violations in the United States. Race information was available on 1,089,900 of
these drug abuse violations and 64.2% of those arrested were White, 34.5% were
Black, 0.7% was Asian or Pacific Islanders, and 0.6% was Native American. There

were a total of 24,255 federal defendants charged with a drug offense in 2001. More

30

than a quarter of the defendants were White (26%), nearly one third were Black
(30.5%), and the majority was Hispanic (43.1%). The most common drug type arrests
for Hispanic defendants were for heroin and/or marijuana possession; for Black
defendants it was crack cocaine; and for White defendants, it was metamphetamine
and/or other drugs.

Of the total reported drug offenders convicted in State courts during 1998, 42%
were Black and 29% were White. During 2000, there were a total of 1,206,400
defendants sentenced to State prisons, 251,100 of which were incarcerated for drug
offenses. The majority of drug offenders held in State prisons were Black ( 145,300),

followed by Whites (58,200), and Hispanics (43,300).

Researchers acknowledge that most crimes, particularly drug offenses, have a
higher rate of occurrences in certain jurisdictions. These variables directly impact the
actual number of reported offenses. The FBI Standardized its gross index crime
statistics comparatively by using the US. Census Bureau population data and dividing
the total population by 100,000. The gross number of crimes is standardized using the
resultant denominator (FBI, 2003). Using a regression analysis of the population
would Standardize crime rates so that the size of the African American population

would not produce spurious results when examining certain independent variables.

Limitations of the Uniform Crime Report as a General Indicator of Crime and Critical
Analysis of Utilizing Existing Law Enforcement Dag

Ofﬁcial crime data, that is, the Uniform Crime Report (UCR) has not been

immune to criticism. For more than three decades, one of the most prominent

31

disparagements was that the FBI’S method Of measuring crime lacks substantive
validity. Some criticisms are:
0 NO federal crimes are reported
0 Reports are voluntary and vary in accuracy and completeness
- Not all police departments submit reports
0 The FBI uses estimates in its total crime projections
- If an offender commits multiple crimes, only the most serious is recorded.
Thus, if a narcotics addict rapes, robs, and murders a victim, only the
murder is recorded. Consequently, many lesser crimes go unreported
- Each act is listed as a Single offense for some crimes, but not for others. If a
man robs six people in a bar, the offense is listed as one robbery, but if he
assaults or murders them, it would be listed as six assaults or six murders
- Incomplete acts are lumped together with complete ones
0 Important differences exist between the FBI’S deﬁnition of certain crimes

and those used in a number of states (Siegal, 20002168)

Missing or Unclean Data

Human error, such as poor record keeping and invalid coding or processing of
collected data, can contribute to spurious results because of the resultant unclean data
set. The most minute data errors can impact the data, particularly when the set was
examined for another purpose other than its initial intention (Cox et al., 2001). A
poorly constructed data set can require reassessing the entire research. The
presumption is that potential errors are held to a minimum because of the longevity of
the agency that first collected the data. Data sets developed by research agencies are
given more credibility than those produced by non-researchers (Maxﬁeld& Babbie,

2001).

32

Validity of Utilizing Existing Data

Finding a suitable data set compatible to the research question of determining a
social historical analysis of race-based laws within the United States has always been a
dilemma for the researcher. The contention is that the positives of reinterpretation of
existing data pertaining to the crack versus powder cocaine outweigh the negatives.
Secondary analysts must frequently make do with measures that are not precisely
those desired (Chambliss& Nagawasa, 1969). In social science, there has been an
ongoing debate regarding the use of existing statistical data. Use of such data sets has
become commonplace in criminal justice research and this only contributes to the
debate. A redefinition of key concepts Of existing data could result in a reduction in

the validity Of the research.

33

FINDINGS

The History of Conﬂict within the United States for African and Chinese Americans

The histiography in this research focuses on events that impact the responses of
African Americans today and how these events have contributed to the development of in
sentencing disparity in treatment between the races. I Will began by outlining the history
of conﬂict within the United States between African and Chinese Americans. Then I
will explore their contact with the police, as well as the government’s acrimonious
relationship with Blacks, and the reactionary policies and major court decisions that gave
legal deﬁnitions of the rights of both the African and Chinese American groups. This
section further explores the legality of control methods through conﬂict. Primarily, I will
emphasize the focus on law and the mechanisms of the enforcement of law as the ﬁnal
component justifying conﬂict theory. The intent is not to rehash existing research
concerning Blacks and the criminal justice system, but to construct a framework from
which the process originated and evolved to a form of “reasonable racism” (Armour,
1997).

In the years of Slavery, various control tactics were used on a daily basis,
including whippings; beatings and selling of the unruly or ungovernable enslaved
Blacks. For petty crimes, such as Stealing, disciplinary action was most likely
implemented by the owner of the Slaves, and not the local peace ofﬁcer. Thus,
punishment never went beyond the owner’s method of discipline, no matter how

draconian it was. As such, there is no record of any criminal activity made by

34

bondsmen. Enslaved Blacks were considered as property and therefore had no rights
whatsoever. Given this legal deﬁnition, slaves were subjected to any type of
inhumane discipline, including death. Under such circumstances, unlimited
disciplinary acts created an on-going conﬂict between the oppressed and the

oppressor.

Chicago Labor Riots of 1919, Episodes of Law Supporting Unfair Practices

The Chicago Riot of 1919 was, for the time, one of the most violent riots that
ever occurred, with a death toll of 23 African Americans, 15 whites, and more than
500 injured. The riot extended over a three-day period, from July 27-30 and caused
some $38,000 in property damage. The Governor of Illinois appointed a study
commission, called the Chicago Commission on Race Relations. The Governor
charged the commission to determine the underlying cause of the racial violence and
to suggest remedies to prevent a recurrence of riots. Its ﬁndings included the
following themes as the variables contributing to the insurgence, racial prejudice,
economic competition, political corruption, exploitation of the Black vote, police
inefficiency, newspaper embellishment on Black crime, the failure of law enforcement
to protect African Americans from crime, inadequate housing conditions, and racial
reactions from mistreatment during World War I.

A background of strained race relations brought to a head more rapidly

through political corruption, economic competition and clashes due to the

overﬂow of the greatly increased colored population into sections outside

of the so-called "Black Belt," embracing the Second and Third Wards, all

of these contributed, aided by magnifying of Negro crime by newspapers,

to the formation of a situation where only a spark was needed to ignite the

ﬂames of racial antagonism. That spark was contributed by a white youth

when he knocked a colored lad off a raft at the 29th Street bathing beach
and the colored boy was drowned (White, 1919225).

35

African Americans were used to drive a wedge between capitalism and labor
unions. Subsequently, large numbers of African Americans were recruited from the
South for economic competition. Because Blacks were generally denied admittance to
labor unions, they had minimal support during strikes. For example, after a labor dispute
was settled, Blacks found themselves out of a job. This fomented White resentment for
Black labor.

The Race Relations Commission found that there was woeful inefﬁciency and
criminal negligence on the part of the police authorities of Chicago, both prior to and
during the riots. This was evidenced by the preponderance of prostitution, gambling, and
the illicit sale of whisky that ﬂourished openly and apparently with minimal or no fear
whatsoever of police interference (White, 1919225). All of these activities contributed to
an open disregard for and contempt for the law. Because of either political pulPor
reciprocal arrangements, many notorious organizations were in operation, or policemen
were afraid to arrest the proprietors. During the riots, the conduct of the police force as a
whole was open to criticism. While the police showed a willingness to arrest Black
rioters, they were unwilling to arrest White rioters. Those who were arrested were
released almost at once. In one case, a Black man, who was light-skinned enough to
appear to be White was arrested for carrying concealed weapons, together with ﬁve
White men and one Black man. In a few minutes, the light-colored man and the ﬁve
Whites were released and their ammunition given back to them with the remark, “You’ll
probably need this before the night is over” (White, 1919225).

Additionally, for a long period prior to the riots, organized gangs of White

hoodlums had been perpetratin g crimes against Blacks for which no arrests had been

36

made. In many instances, these gangs masqueraded under the guise of athletic and social
clubs, but later it was revealed that there was a direct connection between them and
incendiary ﬁres started during the riots. Black men, women, and children were beaten in
the parks. In a number of cases during the period from January 1918 to August 1919,
there were bombings of homes that were occupied by Blacks living outside of the so-
called "Black Belt." Also during this period, as many as 20 bombings took place, yet
only two people were arrested and neither of the two was convicted (White, 1919225).

The ﬁndings in this study by White demonstrate a pattern of behavior wherein the
police engage in selectively protecting citizens who they deem more valuable to society.
Thus, the police ignored the existence of organized mobs, under the pretense of them
being social clubs, even while terrorizing Blacks, while at the same time using their
authority to enforce the law to its fullest extent against African Americans.

Glaring, prejudicial headlines in the Chicago newspapers played up or outlined
every crime, or suspected crime, committed by an African American. Headlines such as
"NEGRO BRUTALLY MURDERS PROMINENT CITIZEN," "NEGRO ROBS
HOUSE," and the like, appeared with alarming frequency and the news articles beneath
such headlines had the same sort of inﬂammatory verse (White, 1919225). These media-
induced embellishments assisted in inducing White fear of Black criminal deviant
behavior. The media also noted that Black war veterans refused to submit to this abuse.
One of the greatest surprises to many of those who came down to "clean out the niggers"
is that these same "niggers" fought back (1919225).

The level of panic continued and discrimination in housing was one way that

demonstrated this fear. Much has been written and said concerning the housing Situation

37

in Chicago and its effects on the racial climate. The problem is a Simple one. Between
1915 and 1919 the Black population of Chicago more than doubled. In four years it
increased from just over 50,000 to and 150,000. An already overcrowded ‘Black Belt’
could not possibly accommodate this doubling of the Black population. As a result, the
Property Owners Association was created for the purpose of keeping White
neighborhoods intact. Various plans were put in place to keep the Blacks entrenched in
their part of the town. One way to accomplish this objective was to discharge Black
people from employment positions they held at the time they attempted to move into
White neighborhoods (White, 1919225). Thus one can readily see in the above the

disparate treatment of Blacks and how they were more frequently criminalized.

The Dred Scott Decision An Argument for Police Regulation

Back in the days of slavery, Dred Scott and his wife, Harriet, were the property of
Dr. John Emerson and traveled with him through the northern territories of Illinois, 1
Wisconsin, and Iowa while he was in the military service. At one posting, Slavery was
not legal because it had not extended to Wisconsin under the Missouri Compromise.
They also traveled South to Louisiana for a brief period. One of Scott’s daughters was
born in the free Wisconsin territory. In 1843 Emerson moved to Davenport, Iowa, where
he later died. Subsequently Scott was loaned to a brother-in-law who traveled back to
Louisiana. He later returned Scott to Emerson’s widow Irene who was living in St.
Louis.

On April 6, 1846, Dred and Harriet Scott petitioned the Missouri circuit court
seeking permission to sue Irene Emerson for holding them in false imprisonment. The

petition alleged that they “ﬁled declarations of initiating actions of trespass for assault

38

and false imprisonment ("Dred Scott v. Sanford," 1857). The case made its way
through the State court system. In a prelude to the Supreme Court ruling, the Missouri
Supreme Court wrote that slavery was a civilizing force that had raised the American
Negro far above the miserable African. As such, the court concluded, “[T]he
introduction of slavery amongst us was the providence of God, who makes the evil
passions of men subservient to his own glory, a means of placing the race within a pale
of civilized nations” (Taney in Higginbotham, 1978). During this period, Emerson sold
Scott and his family to her brother John Sanford. Ultimately the United State Supreme
Court, with Chief Justice Taney writing for the majority, heard the case:

The question is simply this: Can the Negro, whose ancestors were

imported into this country, and sold as slaves, become a member of the

political community formed and brought into existence by the

Constitution of the United States, and as such become entitled to all the

rights, and privileges, and immunities, guarantied by that instrument to

the citizens? [O]n the contrary, they were at that time considered as a

subordinate and inferior class of beings, who had been subjugated by the

dominant race, and, had no rights or privileges but such as those who held

the power and the Government might choose to grant them. They had,

for more than century before [the Declaration of Independence and the

Constitution of the United States], been regarded as beings of inferior

order, and altogether unﬁt to associate with the white race, either in social

or political relations; and so far inferior, that they had no rights which a

white man was bound to respect; and that the Negro might justly and

lawfully be reduced to Slavery for his beneﬁt ("Dred Scott v. Sanford,"

1857).
Clearly Taney outlined the very theoretical basis of conﬂict theory when he made
reference to Blacks having been “subjugated by the dominant race.” The Court’s
intention was to ﬁnd closure on the question of Slavery with Taney’s written

conﬁrmation of the inferiority of Blacks. He never even made reference to Blacks as

human beings, instead declaring:

39

...that if they (Blacks) were entitled to the privileges and immunities of
citizens, it would exempt them from the operation of Special laws and
from “police regulations” which they consider to be necessary for their
own safety... if they were accorded the same rights as whites, it would
endanger the safety of the state ("Dred Scott v. Sanford," 1857).
The idea that he advocated, “policing” for enslaved Blacks demonstrates a social
historical pattern of police as an instrument for regulating the occupation of African-
Americans. With this judgment, the Nation’s most powerful Court not only legally

justiﬁed slavery, but it also campaigned for police occupation of Blacks as a designated

subordinate group. This is another clear example of disparate treatment under the ‘law.’

Whippings, Floggings, and Beatings Sanctioning Violence

Whippings were a form of discipline administered to slaves, depending on the
severity of the crime or the individual plantation’s violation. This treatment was
administered on bare ﬂesh and served as a form of deterrence to others considering
committing the violation. Often after receiving Whippings, red pepper, salt, or other
saline solutions were rubbed into the open ﬂesh to increase the level of pain. Tragically,
it was not uncommon for slaves to be whipped or beaten to death. The chief reason for
the Whippings was usually attitude toward work. Others reasons included absconding,
insubordinate language toward Whites, and selling liquor. Some planters formulated
scales designating the degree of wrongdoing for their wide assortment of "crimes." For
example:

The following is the order in which Offenses must be estimated &

punished--lst Running Away. 2nd Getting drunk or having spirits. 3rd

Stealing Hogs. 4th Stealing. 5th Leaving Plantation without permission.

6th Absence after horn blow. 7th Unclean House or Person. 8th Neglect

of mule. 9th Neglect of tools. 10th neglect of work. The highest
punishment must not exceed ﬁfty lashes in one day (Jones, 1990:71-72).

40

Other barbaric sanctions of enslaved Africans were nose slitting and branding
with a hot iron. For example the letter “,”T which stood for “theft,” was branded into the
forehead of the Slave charged with this crime. Such action was meant to be a warning of
the type Black bondsmen would receive. Methods of conﬁnement, such as prison and
plantation stockades were also used. Both public and private prison facilities existed
during slavery. Wealthier Slave-owners usually owned a private stockade, or had a
building Structure conducive to conﬁning the slave. The public conﬁnement facilities
were referred to as ”workhouse" or "sugar-house."

Torture was another form of disciplinary action taken against Slaves. Often
bondsman were stabbed in the shoulders and male Slaves were castrated. Piercing with
forks, burning with tar, skinning with knives, and killing outright with whips and pistols
are documented methods of torture. Hands, arms, or legs were tied in awkward ways for
several hours in order not to cause visible physical damage. Mental cruelty included
withholding food from slaves or the entire Slave family. Burning alive was the ultimate
form of torture. As with other measures, this was done to deter others who might fail to

comply with given directives.

Convict-Lease, Peonage, Creating the Lumpenproletariat

It will be seen that Negro Slavery, while preserving the community
from an excess of technical pauperism, naturally furnished the same
atmosphere of vice and crime, when the strong hand of slave labor was
removed by general emancipation. A Similar result followed the
emancipation of the serfs in the middle ages, and explains the outbreaks
of crime and disease that marked the 14th and 15th centuries on Europe
(Bonger, 1969:133).

Sociologist W.E.B. Du Bois expanded on this thematic analogy in his work on

African Americans. He made a significant contribution toward deﬁning the cause of

41

Black crime in relation to conﬂict theory while it was being virtually ignored by
mainstream academics within the criminal justice academe. His thesis asserted that
signiﬁcant variables regarding crimes were framed around unjust, unwise laws and
customs of society. African Americans were caught in a web that allowed for limited
mobility and minimal resistance. The newly manumitted status of Blacks evolved to
serfdom by state sanctioned free labor to the highest bidder (Du Bois, 1904).

Du Bois outlined the importance of reviewing historical laws and court
decisions beginning in the 1600’s. His intent was to provide documentation to support
the proposition that the state plays a role in the criminality of African Americans.
Beginning with the State of Georgia, Du Bois research concluded that there were four
central causes of African American crime. First, and the most damaging, was the
state’s interest in generating revenue by legally exploiting the free labor of Blacks.
The establishment of the convict-lease system secured the state’s intent. The system,
the equivalent of legalized Slavery, was convicting Blacks and turning them over to
private citizens for their use. They were not allowed to serve on juries and, in many
cases, were only seen by a magistrate in county courts. Thus African Americans
found themselves criminalized through vagrancy laws, subsequently and easily
reducing them from freedmen to serfdom.

State courts sought to do by judicial decisions what the legislature had

formerly sought to do by Speciﬁc law. AS a result the sudden mass

increase in arrest, prosecution, and conviction of Blacks overwhelmed

courts-an increase so large that the state prison systems was unable to

and had no intention of housing the Black criminal offspring.

Immediately state legislatures passed laws authorizing public ofﬁcials

to lease the labor of convicts to the highest bidder on a contractual

basis. The lessee, business owner, or company representative exercised
legalized control over the convict (Du Bois, 1904215).

42

AS with the system of Slavery,,the lives of Black men, women, and children were
placed in the hands of those whose only intention was to maximize the largest proﬁt
margin. The Justice of the Peace’s position was originally a small salaried position
that was enhanced by the revenue generated by fees from every conviction.
Subsequently, it was incumbent to gain a conviction for as many cases as possible.
Collusion occurred frequently as a result. Oddly, the convicts’ living conditions and
treatment were worse than even for Slavery. Slave owners had an interest in keeping
their “property” alive to maximize profit. However, if injury or loss of life occurred
through the convict-lease system, there was no ﬁnancial loss to the lessee, therefore
they had no vested interest.

In politics the relationships between southern and northern democrats were
forged mainly through economic ties. The Cotton Triangle existed between Europe,
the South, and New York. Cotton from the South that left the US. ﬂowed through
New York clocks to Europe. In essence the North had an economic interest in
maintaining the oppressive condition of Black Americans even after abolishment of
the slavery system. States profited from this arrangement as well. Consequently,
working-class Blacks existed only for the proﬁt of Whites; therefore those were the
only rights to be considered. While the overall numbers of Blacks subjected to an
organized system of bondage was reduced through the Emancipation Proclamation,
the harsh vestiges of Slavery remained intact for this select group of African
Americans. In consequence, you have the origin of what is commonly referred to

today as the Prison Industrial Complex (PIC) (Donzinger, 1996).

43

According to Du Bois (1904b), the impact of the convict-lease system had a
devastating impact on Blacks and resulted in a link between crime and slavery as a
form of oppression. The same methods to control Blacks during the enslavement
period were exercised. Black convicts were routinely subjected to torture, beatings,
poor and overcrowded housing, and given minimal food. Sexual assault/abuse of
Black women and girls by guards (or those employed by the private proprietor,) were
commonplace (Du Bois, 1904215).

As a final comparison to the Slavery system, once the services of leased
convicts was exhausted, the private proprietors were back into court for a fresh body
to replenish their labor force. More than a half-century after the Civil War, John
Williams and his Black overseer were convicted Of murdering 1 1 Slaves through
peonage. Wealthy landowners, such as Williams, visited local jails and paid the ﬁnes
owed by Black inmates. Those Blacks, in turn, were released to the custody of the '
person paying the fine for use as free labor. The FBI launched an investigation into
the matter. Concerned he would be caught, Williams ordered his overseer to murder
the 1 1 Blacks to conceal any proof of Slavery. He discerned this method would shield
him from prosecution. In Spite of this Strategy, both Williams and the overseer were
eventually convicted. This was largely the result of the testimony of a Black
witness—an event rarely allowed in court (Freeman, 1999).

The second cause of African American criminality was the racial dualism that
went on in courts in sentencing. It was commonplace for Whites to receive lenient
sentences, while Blacks, on the other hand, received harsher penalties for the same

crimes. Courts herded African Americans through the system and awarded them jail

44

terms, which in turn made them eligible for the convict-lease system. In contrast,
Whites were given no jail time or very light sentences regardless of their recidivism
rates. During this postbellum period, it was rare for Whites to send fellow Whites to
prison. “To deny a man his liberty was to treat him like a Slave” (Du Bois in
Oshinsky, 1996).

Du Bois contended that the third cause of crime was the high number of Blacks
being lynched. He believed this violent act caused the death of countless law-abiding
Black citizens, many of who were innocent. AS a result, many African Americans lost
trust in the criminal justice system and began to harbor Blacks who were targeted for
lynching, despite their being suspected in a crime, no matter whether guilty or
innocent. In Short, the lawlessness encouraged crime (Du Bois, 1999).

Finally, Du Bois noted that sentencing bias occurred along racial lines. He
reviewed court records in Philadelphia, including prison data and noted:

In convictions by human courts, the rich always are favored somewhat

at the expense of the poor, the upper class at the expense of the

unfortunate classes, and whites at the expense of Negroes (1904217).

Although this work partially laid the groundwork for today’s conﬂict theory, it also
exposed one Of the main criticisms, that is that in the justice system race supercedes

class (Du Bois, 1989).

The Chinese Exclusionary Act

The discovery of gold in 1848 set in motion the large-scale immigration of
primarily Chinese males to the United States. During this period of expansion of the

early American West, the Chinese found jobs in gold mining, agriculture, irrigation,

45

and the transcontinental railroad. However, xenophobic fear exacerbated the idea that
the Chinese were an inferior race who took jobs away from Whites. The labor unions
also opposed their being employed as a means for a cheaper labor force. Chinese were
not allowed tojoin labor unions. This led to the establishment of the 1886 Chinese
Exclusionary Act, an act to criminalize and prohibit Chinese laborers from coming
into the United States. Further, it penalized any person found to assist in the
immigration of anyone Chinese, despite the fact that at the time only less than 1% of
the United States population was Chinese. This act was the ﬁrst major restriction of a
non-White racial group by the federal government following the emancipation of
enslaved African Americans. The Chinese Exclusionary Act entailed:

Therefore

Be it enacted by the Senate and House of Representatives of the United

States of America in Congress assembled, that from and after the

expiration of ninety days next after the passage of this act, and until the

expiration often years next after the passage of this act, the coming of

Chinese laborers to the United States be, and the same is hereby,

suspended; and during such suspension it shall not be lawful for any

Chinese laborer to come, or, having so come after the expiration of said
ninety days, to remain within the United States.

SEC. 2. That the master of any vessel who shall knowingly bring within
the United States on such vessel, and land or permit to be landed, and
Chinese laborer, from any foreign port of place, Shall be deemed guilty of
a misdemeanor, and on conviction thereof Shall be punished by a ﬁne of
not more than ﬁve hundred dollars for each and every such Chinese
laborer so brought, and may be also imprisoned for a term not exceeding
one year (Congress, 1882).

However, there were loopholes in the Act that allowed for a minimal
continuance of immigration despite an already overall reduction in the numbers of

immigrants. A provision in the Act allowed for the exemption of merchants, students,

46

teachers, and designated visitors. This presented a problem of interpretation and
enforcement of the Act because of a lack of consensus. Passed by the 47th Congress,
this law suspended immigration of Chinese laborers for ten years. Those already here
as of November 17, 1880, were permitted to stay, travel abroad, and return, but no
Chinese were allowed to become naturalized citizens.

Two years later, in 1882, Congress passed the next Signiﬁcant exclusionary
legislation, the Act to Prohibit the Coming of Chinese Persons into the United States,
referred to as the Geary Act to resolve complications (Greene et al., 20012212). This
act proposed that any person of Chinese dissent that was arrested would be deported
unless he/she could prove his/her right to stay in US. Even American-born Chinese
found to be engaging in some form of labor, could be sent to China unless afﬁrmative
proof of exception could be presented at the time of inquiry or imprisonment. Exempt
classes could be admitted upon presentation of a certificate from the Chinese
government.

During World War II, the United States shifted its focus toward the Japanese
after the 1941 attack on Pearl Harbor. The alliance between the United States and
China led to repeal of the Geary Act in 1943. This Act to Repeal the Chinese
Exclusion Acts, to Establish Quotas, and for Other Purposes also lifted restrictions on
naturalization of Chinese (Congress, 1943). Thus, in the above, one can see how the

Chinese were treated in a disparate fashion similar to Blacks.

47

The Social Historical Impact of Enforcing the Law as an Instrument of Conﬂict
Theory Within the United States
Rockefeller Dmﬂsaws, a Guide for Federal Expansion

Under the leadership of New York Governor Nelson Rockefeller, the
Rockefeller Drug Laws were enacted in 1973. He contended that rehabilitation efforts
had failed and only harsh prison sentences would adequately address the drug
problem. Violation of the law occurred regardless of the circumstances whether ﬁrst-
time or repeat offender. The level of guilt was determined by the amount or weight of
drugs in possession at the time of arrest and, not by his/her role (buyer or seller) in the
drug transaction. Under those statutes, being caught with one pound of heroin or
cocaine equaled life in prison, while a lS-year sentence was given for possession of an
ounce of marijuana (Lusane, 1991).

The above policy created an incentive for law enforcement to concentrate
primarily on poor, lower class Black and Latino neighborhoods. In these
communities, drug transactions were more likely to occur in public view, which made
an arrest easier. The Rockefeller drug laws were the foundation for every regressive
criminal justice policy adopted by what was several states and the subsequent federal
expansion of drug laws. For example, stop-and-frisk, zero tolerance police sweeps,
three strikes laws, and mandatory minimums sentencing were instigated. The policy
also adopted a means of voter disenfranchisement in that it removed the right to
recommend that convicted felons be given probation or parole. Rockefeller pushed for
an expansion of laws mandating life imprisonment for assorted crimes. If the

perpetrator ingested an illicit drug within twenty-four hours of committing a crime,

48

Rockefeller contended that made the Offender an addict who would eventually be
convicted of a crime punishable by life sentence (Miller R. L., 1996). The legislation
required a minimum of 15 years to life for possession, sale, or use of illegal drugs and
thereby, permanently and potentially removed an offender as a threatening burden to
society. Additionally, a minimum ﬁve-year civil prison term given to drug users
criminalized them and also paved the way for life imprisonment of these drug users if
convicted of a crime. Civil commitment could last up to twenty years, depending on
the state’s evaluation. Failure to comply would result in a potential criminal
conviction.

In an attempt to further make his policy on dealing with drugs and users of
drugs even harsher, Rockefeller, during his tenure as governor, advocated the
establishment of concentration camps for offenders. Also, by declaring a state of
emergency, New York could seek federal assistance in dealing with drug trafficking.
Had the President declared such an emergency, authorization of neighborhood sweeps
of innocent people could be undertaken even though several people that were searched
and arrested had not been accused of any crime. This action could have been carried
out legally and without congressional approval. Sweeps of this nature can be ordered
under the threat of national security or in time of war, as demonstrated by the Japanese
internment camps during World War II. In 1988, concern over crack cocaine led to a
lowering of the weight threshold for possession to enable the arrest and prosecution of
people possessing small amounts Of the drug.

The Rockefeller Drug Laws have remained essentially unchanged since then.

In 1996, Blacks and Latinos comprised approximately 23% of New York’s general

49

population. At the same time, more than 85% of the people indicted for drug felonies,
and were incarcerated, are Black or Latino and constitute more than 85% of the overall
prison population ("Cruel and Usual Punishment: DisprOportionate Sentences for New

York Drug Offenders," 1997).

Legislation and Congressional Response to the Crack Cocaine Epidemic

The focus on the nation’s drug epidemic reached its peak in the 19803. In
response, Congress created the United States Sentencing Commission to act as an
independent agency within the judicial government branch. At the time, the political
climate necessitated a redress on criminal sentencing and politicians argued that
judges had too much ﬂexibility in sentencing criminal offenders. Consequently,
Congress established the Sentencing Reform Act with provisions of the
Comprehensive Crime Control Act of 1984. The Commission was established as an
outgrowth of the Act and it is an ongoing, independent agency within the judicial
branch. The seven voting members on the Commission are appointed by the President
of the United States, confirmed by the Senate, and serve Six-year terms. At least three
of the commissioners must be federal judges and no more than four may belong to the
same political party. The Attorney General is an ex oﬁ‘icio member of the
Commission, as is the chair of the US. Parole Commission (U.S.S.C., 1990). The
sentencing guidelines established by the Commission are designed to incorporate the
purposes of sentencing (that is, just punishment, deterrence, incapacitation, and
rehabilitation). They are also meant to provide certainty and fairness by avoiding
unwarranted sentencing disparity among offenders with similar characteristics

convicted of Similar crimes, while at the same time permitting sufﬁcient judicial

50

ﬂexibility when relevant aggravating and mitigating factors exist. The guidelines are
also designed to reﬂect, to the extent practicable, advancement in the knowledge of
human behavior as it relates to the criminal justice process. Further, Congress created
the Commission to serve as an expert agency in federal sentencing matters. The
Commission:
0 Advises Congress and the executive branch on crime and sentencing policy
0 Maintains the nation’s most comprehensive database on federal sentencing

- Trains thousands of judges, probation ofﬁcers, prosecutors, defense
attorneys, and others involved in the sentencing process

0 Analyzes and researches crime and sentencing-related issues
0 Collects and disseminates information on federal sentencing practices

0 Assesses the guidelines’ effectiveness in achieving the sentencing purposes
of just punishment, deterrence, incapacitation, and rehabilitation

- Provides reports and technical assistance to Congress and the judiciary on
sentencing issues

0 Amends the guidelines as necessary

0 Operates a telephone help line to assist judges, probation ofﬁcers, and
prosecuting and defense attorneys with application of the guidelines

0 Provides sentencing information to the courts, inmates, the general public,
the defense bar, students, professors, the business community, and
congressional ofﬁces

The Commission’s primary duties and authority are to establish sentencing

policies and practices through a detailed framework of sentencing guidelines for the
federal criminal justice system as outlined in Chapter 58 of Title 28 of the United States

Code. Additionally, they are to monitor, research, and report periodically on the

operational effectiveness of the sentencing guidelines. Before guidelines were

51

developed, judges could give a defendant a sentence that ranged anywhere from
probation to the maximum penalty for the offense (U.S.S.C., 1990). Ultimately, the
Commission has the authority to submit guideline amendments each year to Congress
between the beginning of a regular congressional session and May ﬁrst. Such
amendments automatically take effect 180 days after submission, unless a law is
enacted to the contrary (O'Bryant et al., 2002).

Based on the Commission’s recommendation, Congress passed the
Comprehensive Crime Control Act (CCCA) of 1984. The CCCA, and its subsequent
amendments, was the prerequisite for providing the 100:1 ratio between powder cocaine
and crack cocaine. On October 17, 1986, under the Anti-Drug Abuse Act, Congress
expanded the CCCA by adding an amendment to create a mandatory minimum penalty
for possession with the intent to distribute cocaine hydrochloride (cocaine powder) and
cocaine base with a radical hydroxyl element in its chemical compound known as crack
cocaine. Penalties differed for various drugs and for different forms of the same drugs.
Penalty seven of the Act provides that a defendant who is convicted of possessing with
the intent to distribute 453.6 grams (one pound) of powdered cocaine would serve
signiﬁcantly less prison time than a defendant convicted of possession with the intent to
distribute only ﬁve grams of crack cocaine. The sentencing disparity found in the
sentencing guidelines is derived directly from 21 U.S.C.A 841 (b), which mandates the
same minimum sentences for crimes involving ﬁfty grams or more of a substance
containing cocaine base as it does for crimes involving 5,000 grams or more of powder

cocaine ("Comprehensive Crime Control Act," 1984)

52

The Commission in 1987 used the 100:1 quantity in establishing drug penalties
under the sentencing guidelines. Mandatory minimum statues listing only two
quantities for each form of the drug, with crack, ﬁve and ﬁve hundred grams, with a
corresponding five- and ten-year mandatory minimum sentences for first offenders. In
1988, by creating a mandatory minimum penalty for a ﬁrst offense of simple
possession of crack cocaine, Congress made a clear distinction between crack and
powder cocaine. This is the only federal mandatory minimum penalty for a ﬁrst
offense of simple possession of a controlled substance. Under this statute, possession
of more than ﬁve grams of cocaine is punishable by a minimum of ﬁve years in
prison. Simple possession of any quantity—including powder cocaine-by ﬁrst-time
offenders is a misdemeanor offense and punishable with probation or a maximum of a
one-year prison sentence (Gray, 2001; U.S.S.C., 2001). In January 1989, the Supreme
Court upheld the constitutionality of the Sentencing Commission and the guidelines in
Mistretta v. United States, 488 US. 361 (1989), and full nationwide implementation

of the federal sentencing guidelines followed.

Equal Protections and the Crack Statutes I: The United States v. CIZﬂ

The crack versus cocaine sentencing disparity has not gone without legal
challenge. Under a State of Missouri statute, Edward Clary was convicted for intent to
distribute 66.7 grams of crack cocaine. At the time, he was an 18-year-old Black male
with no prior criminal convictions. Under federal law, Clary received the mandatory
minimum sentence of 10 years for intent to distribute over 50 grams of crack. He

alleged that the mandatory minimum sentence was discriminatory towards him and

53

other African Americans because they were more likely than Whites to engage in
trafﬁcking the drug crack ("United States v. Clary," 1994). Further, he pointed out the
disparity by highlighting the 100:1 ratio in crack sentencing in that a minimum of
possession of 5,000 grams of cocaine powder was necessary to qualify for the same
ten—year sentence. The court noted the background of racism in America generally,
and speciﬁcally, noted the history of racism inherent in AmeriCa's attempt to control
crime. However, the court was constrained by prior Eighth Circuit precedent and
found no overt racial discrimination on the part of Congress in adopting the 100:1
penalty ratio for crack cocaine.

Judge Clyde S. Cahill refused to invoke the mandatory sentence for Clary,
since he had a comprehension of the disparity of fairness in sentencing. In writing his
opinion, Judge Cahill lamented on the discriminatory practices of the justice system.
He pointed out that the ﬁrst federal laws criminalizing the possession and sale of
marijuana, heroin, and cocaine were enacted because these actions targeted the
precarious nature of African Americans. Cahill found that “equal protection analysis
must consider unconscious racism by legislators and found that a crack sentencing law
that burdens Blacks disproportionately is a ‘defacto suspect classiﬁcation’ that could
be traced to unconscious racism ("United States v. Clary," 1994).” Finding an
unconsciously discriminatory classiﬁcation, the court applied strict scrutiny, which
required a compelling government interest and a law narrowly tailored to address that
interest. Under this higher level of scrutiny, it found the statute violated federal equal
protection guarantees citing that the Harrison Act of 1914 became federal law as a

result of this alleged behavior (Cahill in Kennedy, 1998).

54

Almost every major drug has been at various times in America’s

history treated as a threat to the survival of America by some minority

segment of society. Panic based upon media reports that incited racial

fears has been used historically in this country as a catalyst for

generating racially based legislation (Kennedy, 1998:385-86)

Cahill further argued that Congress had no substantive basis to distinguish between
crack rock cocaine and powder cocaine and Congress had engaged in a form of
subconscious racism when drafting this legislation since there is no reasonable basis
for this distinction (Cahill in Gillmer, 1995). Cahill clearly pointed out that Congress
never would have enacted legislation had the perception been that young White males
were the major proprietors in trafficking crack powder. In closing, Judge Cahill
suggested:

It would be far more fair and just, in keeping with the “get tough”

rhetoric. . .to require that both Black and White violators serve the same

10 years imprisonment, be it crack or powder cocaine. Cocaine is

really cocaine. No crack would exist without cocaine powder.

Eliminate cocaine and crack disappears! This would be Simple and fair

to eliminate racial injustice. Of paramount value it would enhance the

respect of the judiciary and the nation by bringing equal justice for all-

not merely punishment for JUST US (Kennedy, 1998:385-86).

The US. Court of Appeals overturned the ruling citing that defendants must
demonstrate that the government acted with the intention of racial consequences and
held that the court ﬁnding of unconscious racism Simply did "not address the question
whether Congress acted with a discriminatory purpose” (Gray, 2001). However, the
Appeals Court acknowledged the government’s role in contributing to the sentencing
disparity, but that there was no demonstration of the application of sentencing as being
malicious and racially biased (1995). Further, there iS no substantial evidence that

Congress acted with the intent of racial bias when adopting legislation. The U. S.

Supreme Court upheld the Appeals Court decision. The government acknowledged

55

contributing to and creating an environment of conﬂict in the Cahill ruling, but also
showed an unwillingness to address the issue because of the high Standard of proof
required. Simply put, yes there was racial disparity, but that it would not be redressed,
Since there was no malicious intent by the government. While some states, such as
Michigan, New York, and Illinois, are reconsidering drug legislation, the Clary ruling
currently stands unchallenged. The Justice Department under George W. Bush’s
Presidential Administration recently affirmed its position on the Crack versus Cocaine
sentencing disparity. The Administration doesn’t favor reducing the 10021 ratio
because they deem that crack is a more deadly drug than is cocaine in the powder
form. Furthermore the Bush Administration is attempting to protect the minority

communities from the devastation of the use of crack (Lewis, 2002).

I

Equal Protections and the Crack Statutes 11: Statistical Analysis

The 19803 saw a dramatic increase in the use of crack rock cocaine in Black
communities throughout the country. As a result, gang violence escalated, and it
became common practice for law enforcement personnel to create State-sanctioned
drug dealer proﬁles. The proﬁle deﬁned the subject to be a Black male between the
ages of 15 and 25 years of age, who dresses in an upscale sweat suit, wears expensive
gold jewelry around his neck, and possibly drives an automobile priced beyond his
financial means (Lusane, 1991). Subsequently, state and federal governments enacted
harsh penalties for drug trafficking in rock cocaine and that led to an explosion in the
Black prison population in particular. In 1984, Congress enacted the Sentencing
Reform Act of 1984, which established the US. States Sentencing Commission

(Sentencing Commission). The Sentencing Commission was given the authority to

56

promulgate sentencing guidelines for federal courts. In 1987 the Sentencing
Commission developed Sentencing Guidelines that, in part, eliminated racial disparity
in sentencing. To accomplish this goal of fair sentencing, sentencing discretion was
removed from judges who once had full autonomy in application. Mandatory
minimum sentences, particularly for drug offenses, then replaced the judges’
sentencing discretion.

Approximately five years later, the US. General Accounting Ofﬁce (GAO)
issued a report indicating that because of "data limitation, [it is] impossible to know
how effective the Federal Sentencing Guidelines had been in reducing racial, as well
as other disparities, in the sentences given to similar offenders for Similar crimes”
(Conaboy, 1995). The GAO'S report, however, indicates that in some areas of the
Sentencing Guidelines, there are still disparities in sentencing between Blacks and
Whites for the same offenses. Further, the GAO'S report suggests that the way
prosecutors traditionally plea-bargain with defendants may adversely impact Blacks
and interfere with the Sentencing Commission's mission of eliminating disparity based
on race.

In the Anti—Drug Abuse Act of 1988, Congress further distinguished crack
cocaine from both powder cocaine and other drugs by creating a mandatory minimum
penalty for possession of crack cocaine. It was the only such federal penalty for a
first-time offense of possession of a controlled substance. Under this statute,
possession of more than five grams of crack Cocaine has a minimum sentence of ﬁve

years in prison. Possession of any quantity of any other substance—including

57

powder—by a ﬁrst-time offender is a misdemeanor offense punishable by a maximum
of one year in prison.

Initially in August 1991, the Commission acknowledged the sentencing
disparity of a mandatory minimum as incompatible with the sentencing guidelines.
However, they failed to launch a full investigation until a few years later. In 1995 a
report and proposal was filed with Congress. The following table represents the
findings on sentencing disparity. Key to this debate was that drug trafﬁckers of crack
cocaine are more likely to be Black, while traffickers of powder cocaine are more
likely to be White. However, it was undisputed that both are a derivative of the same
substance. In fact, the Commission defined that powder cocaine and crack cocaine are
two forms of the same drug, containing the same active ingredient—the cocaine
alkaloid (Conaboy, 1995). Simply put, HzO is a form of water, yet when one lowers
the temperature of cocaine powder added to H20, it becomes hardened that creates the

ice called rock cocaine.

Table One

5 grams or more of crack cocaine equals 5-year mandatory minimum penalty
500 grams of powder cocaine equals 5-year mandatory minimum penalty

50 grams or more of crack cocaine equals lO-year mandatory minimum penalty
5,000 grams of powder cocaine equals lO-year mandatory minimum penalty

Adopted from the Special Report to the US. Congress. (U.S. Sentencing Commission. 1995)

 

58

Table two is a data composition of index crimes from 1980 to 2001 complied
be the Federal Bureau of Justice Statistics (See Number of Person in of State
Correctional Authorities by Most Serious Offense. 1980-2001, 2004). The years 1980
through 1986 are prior to the creation of the federal mandatory minimum sentencing
for crack cocaine. Drug crimes during this period had the second lowest percentage
next to public order offenses. However the years after 1986 reveal a sharp increase in
drug offenses. The other listed crimes are as follows; violent offenses include
murder, negligent and non-negligent manslaughter, rape, sexual assault, robbery,
assault, extortion, intimidation, criminal endangerment, and other violent offenses.
Property offenses include burglary, larceny, motor vehicle theft, fraud, possession and
selling of stolen property, destruction of property, trespassing, vandalism, criminal

tampering, and other property Offenses.

Drug offenses include possession, manufacturing, trafficking, and other drug
offenses. Public-order offenses include weapons, drunk driving, escape/ﬂight to avoid
prosecution, court offenses, obstruction, commercialized vice, morals and decency

charges, liquor law violations, and other public-order offenses.

59

Table Two

Number of persons in custody of State correctional authorities by most serious offense
from 1980-2001

Violent Property Drug Public order
1980 173,300 89,300 19,000 12,400
1981 193,300 100,500 21,700 14,600
1982 215,300 1 14,400 25,300 17,800
1983 214,600 127,100 26,600 24,400
1984 227,300 133,100 31,700 21,900
1985 246,200 140,100 38,900 23,000
1986 258,600 150,200 45,400 28,800
1987 271,300 155,500 57,900 31,300
1988 282,700 161,600 79,100 35,000
1989 293,900 172,700 120,100 39,500
1990 313,600 173,700 148,600 45,500
1991 339,500 180,700 155,200 49,500
1992 369,100 181,600 168,100 56,300
1993 393,500 189,600 177,000 64,000
1994 425,700 207,000 193,500 74,400
1995 459,600 226,600 212,800 86,500
1996 484,800 231,700 216,900 96,000
1997 507,800 236,400 222,100 106,200
1998 545,200 242,900 236,800 1 13,900
1999 570,000 245,000 251,200 120,600
2000 589,100 238,500 251,100 124,600
2001 596,100 233,000 246,100 129,900

Source: Correctional Populations in the United States. 1997, and Prisoners in 2002

The following information was downloaded from the United States Sentencing

Commission’s website drawn form the 2001 Sourcebook of Federal Sentencing

60

Statistics. Table three indicates that during 2001, the average length of imprisonment

received for Federal crack cocaine offenders was 1 15 months.

Table Three

Mean and Median Length of Imprisonment, Federal Drug Offenders, 2001

 

 

Type of Drug Mean (in months) Median (in months)
Powder cocaine 77.0 60
Crack cocaine 1 15.0 95
Heroin . 63.4 46
Marijuana 38.0 24
Methamphetamine 88.5 70
Other 41.1 30

 

(See ﬁgure L of http://www.ussc.gov/ANNRPT/200l/Fig-IPDF)

As of 2001, approximately 83% of the federally sentenced crack cocaine
offenders were Black. The statistical data presents a 100:1 quantity ratio of powder
cocaine to crack cocaine, that is, it takes 100 times as much powder cocaine, as
compared to crack, to bring the mandatory minimum penalties. In essence, the
mandatory minimum guideline’s differentiation means that, for any given quantity of
cocaine, sentences for offenses involving crack cocaine are much more severe than

similar offenses involving powder cocaine as indicated in table four.

61

Table Four

Race/Ethnicity of Federally Sentenced Crack and Cocaine Offenders, 2001

 

 

Race/Ethnicity Powder Cocaine (%) Crack Cocaine (%)
White 18.1 7.0
Black 30.5 82.8
Hispanic , 50.2 9.3
Other 1.2 0.9

 

(See ﬁgure] of http://www.ussc.gov/ANNRPT/200l/ﬁg-jpdl)

Table five indicates there are no Si gniﬁcant difference in the 5-year mandatory
minimum sentencing for powder cocaine, crack cocaine, and all other drugs.
However, when reviewing the 10-year mandatory minimum, the sentencing for crack
cocaine is Si gnificantly higher than powder cocaine and other drugs. This is because
crack cocaine trafﬁckers are more likely to be arrested with more than the minimal
five grams that triggers the sentencing. Additionally when adding both ﬁve and ten»
year mandatory minimums, the highest percentages receiving mandatory minimum

penalties were crack cases, with 76.0%.

62

Table Five ,

Percent of Crack and Cocaine Offenders Receiving Mandatory Minimum Sentences,
2001

 

 

Type of Provision Received Powder Crack All Drugs
No mandatory minimum 27.6 24.0 40.6
5-year mandatory minimum 34.2 29.4 29.1
10-year mandatory minimum 38.2 46.6 30.3

 

(See table 43 of http://www.ussc.gov/ANNRPT/200l/table43.pdf)

Despite the racial disparities in sentencing, the Sentencing Commission has
taken two Steps to lower crack penalties. Initially the Commission contended that
“[T]here is no evidence that Congress or the Sentencing Commission acted with any
discriminatory intent in setting different statutory guideline penalties for different
forms of cocaine (Conaboy, 1995)." However, in June of 1995, the House Judiciary
Committee’s Crime Subcommittee held a hearing to examine the Commission’s
recommended changes to the Sentencing Guidelines. First, the Commission
recommended that Congress eliminate the differential treatment of crack and cocaine
powder in the mandatory minimum penalties currently provided by Statute. In
addition, the Commission submitted an amendment of the sentencing guidelines to
make the punishment for crack and cocaine powder possession and/or sale the same
under the guidelines, regardless of whether or not Congress first revised the Statutory
minimum penalties. The US. House of Representative in September of 1995 voted

332 to 83 to reject the Sentencing Commission’s proposal to reduce the disparity

63

caused by federal sentencing, including equalizing the crack and cocaine sentencing
statues. Instead, the majority decided to perpetuate these discriminatory laws by
passing and reporting out HR. 2259, which disapproved the recommendations of the
US. Sentencing Commission to eliminate the disparities in federal sentencing for
crack cocaine and powder cocaine offenses. It Should be noted that the proposal
would have gone into affect without calling for a Congressional vote. However, for the
first time in history, the Commission’s recommendations were summarily dismissed
without adopting any portion of their recommendation. The rejection also received the
support of President Clinton, who in 1993 Sponsored the most punitive crime bill in
history. The former President’s bill increased the number of criminalized laws and

expanded the application of capital punishment.

The Supply and Demand of Crack Cocaine, A Business Perspective

Because of the relatively low production cost of making crack, it is relatively
cheap even when including baking soda or ammonia. As such, crack cocaine is the
drug of choice for poor Americans, many of whom are African Americans and live in
the nation’s inner cities. Conversely, powder cocaine is much more expensive, and it
tends to be used by more afﬂuent White Americans. As of 1993 the cost per dose, in
comparison, places this disparity into perspective. That is, 500 grams of powder
cocaine produces 2,500 to 5,000 closes with a street value of between $32,500 and
$50,000. In contrast, 5 grams of crack cocaine produces 10 to 50 doses and has a
street value of between $225 and $750. Thus, at the high end of the scale, a defendant

convicted of trafﬁcking $750 worth of crack cocaine would receive the same

mandatory minimum five-year sentence as a defendant who trafficked $50,000 worth

Of powder cocaine (U.S.S.C., 1993).

The Demographical Impact of Sentencing

In 1993 the US. Attorney assigned to Los Angeles publicly acknowledged that
federal agents focused their resources in predominantly African American and Latino
communities. As a result in 1993, not a single White had been convicted of a crack
cocaine related offense in the federal courts surrounding Los Angeles Since Congress
enacted its mandatory sentences. The data supported that practically all White
offenders had been prosecuted in the state courts. A 1992 survey by the Commission
found a Similar pattern in major metropolitan cities that prosecuted crack cocaine
cases (U.S.S.C., 1993). No Whites were federally prosecuted in 17 various States or in
many cities, including Boston, Denver, Chicago, Miami, Dallas, and Los Angeles.
Only one White was convicted in California, two in Texas, three in New York, and
two in Pennsylvania (U.S.S.C., 1993).

This evidence as indicated in table six supports the premise of this dissertation
that US. Attorneys use racial discretion in prosecuting potential defendants. AS of
2001, approximately 48% of the federally sentenced drug defendants in the US.
Fourth Circuit were charged with committing a crack cocaine offense. The Fourth
Circuit encompasses Maryland, North Carolina, South Carolina, Virginia, and West

Virginia.

65

Table Six

Defendants Sentenced for Cocaine Offenses, by Circuit, 2001

 

Crack Cocaine Powder Cocaine

 

 

Circuit # of Offenders % of Total Drug # of Offenders % of Total Drug

 

First 190 21.7 409 46.7
Second 428 24.2 567 32.0
Third 254 27.9 284 31.1
Fourth 1,080 47 .8 847 16.4
Fifth 713 13.8 847 16.4
Sixth 464 25.1 470 25.4
Seventh 425 39.7 295 27.6
Eighth 344 20.4 257 15.2
Ninth 193 4.3 594 13.4
Tenth 151 11.7 188 14.6
Eleventh 641 22.9 967 34.5
DC. 58 55.8 17 16.3

 

From USSC FY 2(X)l Federal Sentencing Statistics by State. District, and Circuit http://www.ussc.gov/.lUDPACK/JPZOOI.htm

66

Table Seven provides the state territory composition within the 1 1 federal

circuits and additionally the District of Columbia.

Table Seven

Areas of Each Circuit

 

 

Circuit State Territories

First ME, MA, NH, Puerto Rico, RI

Second CT, NY, VT

Third DE, NJ, PA, Virgin Islands

Fourth MD, NC, SC, VA, WV

Fifth LA, MS, TX

Sixth KY, MI, OH, TN

Seventh IL, IN, WI

Eighth AR, IA, MN, MO, NE, ND, SD

Ninth AK, AZ, CA, Guam, HI, ID, MT, NV, Northern Mariana Islands, OR,
WA

Tenth CO, KS, NM, OK, UT, WY

Eleventh AL, FL, GA

DC. Washington

 

From USSC FY 2001 Federal Sentencing Statistics by State. District, and Circuit http://www.ussc.gov/JUDPACK/JPZOOI.htm

Impact of Mandatory Minimum Drug Sentencing
A Study conducted by the Federal Judicial Center found that mandatory
minimum sentencing has an alarmingly larger impact on African Americans than it

does on Whites (Meiehoefer, 1992). In 1986 the average sentence was 6% higher for

67

African Americans than for Whites before the mandatory minimum sentences for
crack offenses became effective. However, only four years later, in 1990, the average
sentence was 93% higher for African Americans. This trend also includes a shift for
transactions of other drugs of 1 1% to 49% for offenses related to cocaine, opiates, and
marijuana (Meiehoefer, 1992).

Three factors contributed to the statistical patterns: first, increased
participation by Black male gang members in street sales in the new underground
economy; second, selective enforcement of drug laws as they pertain to street dealers;
third, harsher mandatory sentencing guidelines aimed at crack cocaine versus powder
cocaine users/sellers (Meiehoefer, 1992). This Sentencing Project Study followed on
the heels of the 1990 findings that nearly one-fourth of all Black males 20 to 29 years
of age were in prison, jail, or on probation or parole (U.S.S.C., 1990). By 1993, Black
males were incarcerated at a rate more than four times that of Black males in South
Africa with 3,109 Black prisoners per 100,000 people, compared to South Africa’s
729 per 100,000 (Reinarman et al., 1997).

In contrast, by turning back the clock to just more than a half-century ago, the
incarceration rates were remarkably different. Approximately 77% of all prisoners
within the United States were White, while only 22% were Black. In 1933, Blacks
were incarcerated at a rate almost three times that of Whites. In 1950, the ratio had
increased to approximately four times; in 1960 it was almost five times; in 1970 it was
Six times; and in 1989, it was seven times that of Whites (Hacker, 1992). Continued
expansion has lead to the current incarceration of more than one million Black males

in prisons throughout the United States (Miller L., 2002).

68

The Parallels of Slave Labor, Including Leasing Newborn Babies

1 will now outlines the parallels that exist in the modem-day criminal justice
system and the exploitation of Black Africans as free labor through the capitalistic
Slavery system. AS mentioned earlier, former President Clinton Signed the largest crime
bill in US. history. Funding dissemination required that federal, State, and municipal
localities actively demonstrate an aggressive approach to combating crime. For example,
higher arrest numbers would meet the qualiﬁcation standards. Targeting Black males
who, in fact, had been proﬁled, processed through the justice system, and whose labor
then became available, was the target of the Crime Bill. The similarities are much like a
Slave targeted for capture, and then exploited with the intent to proﬁt by using race as a
variable. Just as the original bondage system initially did not conceive of race as the
primary motive to enslave Blacks, the prison explosion did not either. However, the new
system paved the way for a subsequent return to a reformulated convict-lease program.

The 19805 marked a Signiﬁcant time in world history. It brought the end of the
cold war and the fall of the Soviet Union. Prior to this time, the economy was fueled by
the arms’ race. When it ended, crime began to escalate within the United States and
there was an onslaught of crack cocaine that invaded inner-city communities. As a
result, the prison population doubled in capacity. Subsequently, former President Ronald
Reagan declared a war on drugs in an effort to combat the epidemic that was targeting
African Americans.

Assuming racism is still a tool to the proletarian, that is, those who do not have

extra capital, and that stereotypical labels are ingrained in the psyche of America after

69

some four centuries, one could argue that African Americans are contributing to the
economic expansion and labor exploitation of the penal industry. In 1989, in Kalamazoo,
Michigan, a law was enacted that stated: “No person shall knowingly loiter about,
frequent or live in any building, house, vacant lot, street, curb, lawn, alley, yard,
apartment, store, automobile, boat, boathouse, airplane, or other place where controlled
substances or drug paraphernalia are sold, dispensed, given away, or stored” (Reinarman
et al., 1997). Anyone convicted of this offense found him/herself with a $500 ﬁne and up
to 90 days in jail. Several other cities throughout the country adapted similar policies.
Another current popular tend is to build more prisons as a way to combat crime.
Prison expansion is one of the Nation’s fastest growing industries, with a proﬁtable
enough margin to inject a boost to the economy. The annual expenditure averages $165
billion by both public and private agencies. Prisoners are the raw material central to
guaranteeing continued growth. Nearly 70% of the prison population is African
American. On any given day, one out of ten African American males is incarcerated in
the United States, Black men 18 and over have a one in 17 chance of getting arrested and
Black men 18 to 34 have a one in ten chance of getting arrested (Donzinger, 1996). The
warehousing of these Black individuals is referred to as the Prison Industrial Complex

(PIC).
According to Donzinger (1996), a 1994 article, the Wall Street Journal asserted

that the private corrections industry used the war against crime as a lucrative business
market much in the same way the defense industry used the threat of Communism during

the Cold War. The fear of crime drives investment potential, and crime control is a

70

source of proﬁt. For example, the high volume of sales of the ‘club’ is centered on the
fear of theft of your automobile and the fear that Black males perpetuate this crime.

Some of the largest private corporations have restructured their divisions to
facilitate entry into the competitive prison industry market. This includes some of the
largest investment houses on Wall Street. Two such examples, Goldman Sachs and Co.
and Smith & Barney, compete to underwrite jail and prison construction with private,
tax-exempt bonds that do not require voter approval. Former titans of the defense
industry such as Westinghouse Electric and Alliant Techsystems, Inc., have created
special divisions to re-tool their products for law enforcement needs (Donzinger, 1996).

As in the days of the slave system and the post bellum (Jim Crow) era, the
government played a Si gniﬁcant role in the exploitation of labor. Dubois referred to this
process where the incentive was to criminalize Blacks and contract their services to the
highest bidder as “convict leasing” nearly a century ago. Currently, the three—Strikes
policy in states such as California maintains the same methodological supply of human
labor as by enacting this policy. This entails a 25—years-to-life prison sentence with no
chance of parole for any adult convicted for a third felony. California also has the
provision that if the third crime is a misdemeanor, it can be increased to a felony in order
for the State to obtain the three-strike provision.

Both the federal and state governments have elected to have their inmate
populations placed in private prison facilities owned by corporations, such as Wackenhut.
These corporations receive tax incentives and other perks to assume the government’s
cost to house a prisoner. Some states actually send prisoners to corporate facilities in

other states. They can require inmates to work without receiving at least minimum wage,

71

thus a large return on the product. The condition of these facilities and the need to
protect prisoners’ rights as citizens has occasionally come into question, particularly
when injury or death occurs.

Melonie Green, an African American women resident of Rockford, Illinois, was
arrested in 1989 when her infant son died of oxygen depravation days after he was born
(Roberts, 1997). The State’s attorney, Paul Logli, charged Green with involuntary
manslaughter based on the fact that the baby’s death was linked to the mother’s drug
addiction, that is she used crack cocaine while She was pregnant. This was a ﬁrst of its
kind, precedent-setting case as never beforehand has a woman been charged with
manslaughter in connection with a drug addiction and this case received national
attention. Green was demonized as an irresponsible, uneducated crack mother on
welfare, who was a liability to the state. Further, She was depicted as a woman who
chose crack cocaine over the health of her unborn child.

Logli stated publicly that his intention was to send a message that would deter
other pregnant women/mothers from using drugs, or, if they did, this action was to make
it clear that they would go to prison. He even went so far as to have a 24-hour police
guard at Green’s hospital door (Roberts, 1997). This was not for her protection, but
rather was intended to prevent Green, who had just given birth, from leaving the hospital
to go and feed her addiction. Apparently he believed that this woman would somehow
ﬁnd the strength to ﬁnd drugs immediately after she delivered a child. It was no
coincidence that Logli chose a Black women. She was less likely to have public support
for her addiction and was more likely to lose her child. The state was prepared to take

custody of the child had it survived. A jury refused to convict Green of the manslaughter

72

charge. However, this prompted the Illinois legislature to adopt the Infant Neglect
Control Substance Act of 1989 (Illinois Criminal Law and Procedures, 1993). This law
expanded existing child-abuse laws to include passing drugs to newborn babies in
childbirth to be a felony.

National opinion polls during and after the case indicated that the majority of
those responding supported the state criminally charging a crack drug-abusing mother
who passed on the addiction to the child by using drugs during her pregnancy.
Ultimately, crack took on its own identity as a drug. Crack mother meant Black
mother. These mothers are portrayed as having no maternal instinct for their children.

The media hypes this when, in the rare instance, a Black women sells/trades
her child for crack. However, it Should be noted that since the Green case, the use of
leasing babies (paying to use a baby as a cover for a drug trip) in drug trafﬁcking has
become more commonplace. At present, several members of Sisters in Struggle, a
female component of the Gangster Disciples Chicago street gang have been arrested
and indicted on operating an international drug smuggling ring. The smugglers routes
include Panama City, Montego Bay, and Kingston, Jamaica; also to Chicago, New
York, London, and Birmingham, England (Cohen, 2004). Drug addicted parents lease
their newborn children to trafﬁckers in exchange for drugs or $200-$400 dollars, while
couriers make up to $4,000 per trip. Scoring a transaction entails purchasing liquid
cocaine and placing it the baby’s formula cans. A women traveling with a baby and
baby formula was thought to draw the least amount of suspicion. A kilo of cocaine
(the equivalent of approximately three formula cans) that costs $5,000 in Panama can

reap $20,000 or more if turned into crack in the United States(Cohen, 2004).

73

One legitimate concern that has arisen is what if the child is accidentally given
the formula that is laced with the cocaine? A trafficker who is not the actual parent is
less likely to have these concerns. Custom agents had cases where a three-week-old
baby had been left alone in an empty bathtub during a drug transaction and in another
case, where the baby was left alone in a slum hotel while the trafﬁcker sought alcohol

and drugs.

Acrimonious Blacks, Proﬁles and Symbolism

The power of the dominant group is also advocated by symbolism. For
example I have personally seen a mural inside the federal building in Jackson,
Mississippi, depicting Blacks in inferior positions, likened to a happy Slave stereotype,
and notably justice is Shown as a White character. This mural can be viewed in the late
Judge Leon A. Hi gginbotham last work entitled ‘Shades of Freedom: Racial Politics
and the Presumption of the American Legal Process’ (See Higginbotham, 1996). A
more modern-day example is a photo that was captured and Shown nationally of
former New Jersey Governor Christine Todd Whitman engaging in a stop and frisk of
an African American male. In it, Sherron Rolax, a 17-year-old Black male, is shown
with his legs spread and his hands leaning against a wall. Ironically, police who were
conducting a drug sweep of the Camden area had already subjected Rolax to a search.
He was then handed over to the Governor who searched him again. Despite both
searches taking place, Rolax was not arrested. The legality of the search questions the
constitutionality of invading his individual rights of protection from illegal search and

seizures.

74

CONCLUSION

Has The Law Achieved Its Purpose?

The following steps were necessary in order to properly create a methodology
that adequately addresses the premise of this study. First, a social histiography was
established that ineludes a literature review on the introduction of Africans/African
Americans to the United States and how criminalization of their behavior occurred.
Then, a search for materials that affected interaction, that is, a description of law as a
social control, followed. Then there was a discussion of how the creation and
application of law is the key instrument in establishing conﬂict (Moyer, 2001). Also,
the review demonstrated the importance of solidarity among the dominant group, and
why it is a necessary tactic to maintain control of subordinate groups. Lastly, a
comparison of empirical evidence of the conditions under which conﬂict produced
certain outcomes occurred.

The United States Sentencing Commission’s recommendation of statutes for
crack cocaine, adapted and passed by Congress, was the Comprehensive Crime Control
Act (CCCA) of 1984 as already demonstrated it was the prerequisite for providing the
100:1 ratio between powder cocaine and crack cocaine and, therefore, Should come as
no surprise regarding the racial impact on sentencing for crack cocaine. This is not to
be considered as a conspiracy indictment against the majority; however, it is a
construct to comprehend the social historical impact of law, and subsequently, the

impact on race or racial bias and how it plays a major role. Given this, the question

75

remains: Have the laws achieved their purpose in deterring the use, sale, and distribution
of crack cocaine for the purpose of protecting the health and well being of the
population? The short response would be an emphatic ‘no;’ however an adequate answer
is provided only after reviewing the relevance of the social historical regulatory methods
of control of African Americans since that is the population that trafﬁcs in crack the
most. The abolishment of Slavery through emancipation, the constitutional
amendments, and civil rights movement act(s) ideally should have created a race-
neutral society, as well as a neutral criminal justice system (McIntyre, 1993). Hence
in a putative context, ideally, justice being blind exercises race neutrality for all.

The impact of race varies, depending on one’s identiﬁed status in American
society, that is, racial group Status. Under the current Structure, crack laws and
mandatory minimums have ended up placing a large number of an entire generation of
Blacks behind bars. In 1989 a study by the Sentencing Project found that one in four
Black men between the ages of 20—29 is under some form of criminal justice
supervision, either in jail or prison, or on probation or parole. Thus, half of the prison
population is now African American, compared to the 13% of the entire population of
the United States (Mauer, 1999a).

The recent court challenges to the sentencing disparity follows a social
historical pattern established in the Dred Scott ruling. As noted in the Clary case,
federal court rulings support the notion that no discrimination existed in the
conception of the drug laws. Another example of this conduct by the Courts is the
1991 case of the United States v. Armstrong. This entails four defendants charged

with trafﬁcking crack cocaine who ﬁled a motion for discovery or dismissal, alleging

76

that they were victims of “selective prosecution.” The Supreme Court ruled that the
defendants did not meet the required threshold showing that similarly situated suspects
of other races were not prosecuted (Mauer, 1999b). Prior to reaching the Supreme
Court, the US. Court of Appeals ruled that Congress had not acted with a
discriminatory purpose in setting greater penalties for cocaine-based crimes than for
powder cocaine offenses. Thus regardless of the intent, the Courts have ignored the
racial impact on its citizens.

In 2002 the Sentencing Commission reported to Congress that the current
penalties on crack are based on beliefs about the association of crack offenses with
violence that have been Shown to be inaccurate (Coyle, 2004). The Commission
found that violence associated with crack is primarily related to the drug trade, not the
drug itself. In data from a 2000 Study of federally prosecuted cocaine cases, the
Commission found weapon involvement for powder cocaine offenses to be 25.4% and
35.2% for crack cocaine offenses. For powder cocaine, the frequency rate with which
weapons are actually used is 1.2% and for crack offenders it iS 2.3%, not a signiﬁcant
difference to justify the 100:1 quantity disparity (Coyle, 2004). Additionally the
Commission’s research showed that the median amount of crack found on the majority
of low-level offenders is 52 grams, which is enough to trigger a ten—year mandatory
sentence because of current laws. The average for holding powder cocaine is 340
grams, which does not even trigger the five-year sentence (Coyle, 2004).

The long-term cost of incarceration from mandatory minimum sentencing drug
laws has created a ﬁnancial burden for states, such as Michigan, which in 2002

subsequently repealed the laws. The Violent Crime Control and Law Enforcement

77

Act of 1994 authorized funding for state and local law enforcement and crime
prevention measures, including increasing the number of crimes punishable by death
and establishing a "three-strikes" provision for violent offenders. Law-enforcement
agencies were given an additional one billion dollars to assist with the increased
workload expected from the mandates of the Act (O'Bryant et al., 2002).

For some states, however, the ﬁnancial incentive from the federal government
is no longer cost efﬁcient. On December 12, 2002, a bipartisan majority of the
Michigan Senate passed an historic package of three sentencing reform bills—HB
5394 (H—3), HB 5395 (H-2) and HB 6510 (H-1)—that eliminated most of the state’s
draconian mandatory minimum sentences for drug offenses. The reform allows judges
to impose sentences based on a range of factors in each case, rather than solely on
drug weight, and replaces lifetime probation for the low-level offenders with a ﬁve-
year probationary period ("Michigan Repeals Mandatory Minimum Drug Sentence,"
2002). The repealed legislation also allows parole boards the discretion to permit
early parole for prisoners. Advocacy groups, such as the Families Against Mandatory
Minimums (FAMM), argue that the previous mandatory minimums warehoused low-
level nonviolent Offenders that became a high expense to taxpayers.

This will save taxpayers millions as judges can now use guidelines to impose
sentences that more accurately reﬂect the individual factors in each drug case. In an
article published December 22, 2002, the Detroit News estimated that Michigan could
save as much as $41 million in 2003 between the earlier parole eligibility dates for
certain prisoners and discharges from lifetime probation (See Heinlein, 2002).

Taxpayers will also save millions in the future, as judges use sentencing guidelines to

78

impose sentences that more accurately reﬂect the individual factors in each case
(Heinlein, 2002). In addition, overall drug-related crimes rates are down. By 1997,
the US. Justice Department's National Institute of Justice was reporting that crack
cocaine use by both adults and youths has dropped dramatically. For example, the
institute reported that the proportion of young people arrested in Detroit who tested
positive for cocaine dropped from 45% in 1987 to only 5% in 1996, (Heinlein, 2002).
According to the Sentencing Commission, since 1980, the number of drug offenders in
state prisons has increased thirteen-fold, and drug offenders now comprise one-ﬁfth of
all state prisoners (U.S.S.C., 1990). The drug laws have achieved their purpose in
incarcerating low-level nonviolent offenders with most having no prior criminal
record. However, there is scant empirical evidence that suggests that this "get tough"
policy has had any appreciable effect on stemming the ﬂow of drugs into the country

or decreasing the use of illicit narcotics (Reinarman et al., 1997).

Limitations and Minimizing the Adverse Effects

As noted, the Federal Courts have concertedly ruled that there is no evidence
that Congress acted racially malicious (discriminatory) in enacting the different
statutory guidelines for different forms of cocaine. However, this failure to amend the
sentencing disparity feeds into cultural misconceptions about trafficking in crack
cocaine and the following draconian sentencing. It suppresses a racist and classicist
undertone of society’s power structure of conﬂict through a political, legal, and law-
enforcement structure. Rather, those in power use these mechanisms as methods to
control subordinate groups, such as African Americans. In 2002 the Commission

reported to Congress that patterns of drug purchases and use demonstrate that, overall,

79

drug users reported their main drug providers are sellers of the same racial or ethnic
background as they are. Yet, research shows that in the year 2000 of all of the federal
crack defendants, 84% were Black (Coyle, 2004). Access to this information is
nothing new for Congress. Ironically, the Commission included this in its reports for
more than a decade.

Jury nulliﬁcation is a radical approach to addressing the sentencing disparity in
crack cocaine cases. Paul Butler published an article entitled “Racially based jury
nullification: Black power in the criminal justice system” in the Yale Law Review
(Butler 1995). In this article, he advocated that Black jurors have a moral
responsibility to consider ignoring the facts of the case and voting their consciousness
in nonviolent, victimless crimes. Consequently, he contended that "the race of a black
defendant is sometimes a legally and morally appropriate factor for jurors to consider
in reaching a verdict" because: "The decision as to what kind of conduct by African-
Americans ought to be punished is better made by African-Americans themselves,
based on the costs and beneﬁts to their community, than by the traditional criminal
justice process, which is controlled by White lawmakers and White law enforcers
(Butler, 1995)”. For serious violent crimes, Butler contends juries should consider a
case strictly on the evidence presented.

To support his perspective, Butler (1995) presented the history Of jury
nullification as part of English and American law, citing examples such as abolitionist
juries refusing to find escaped enslaved Blacks guilty of violating the Fugitive Slave
Law. Historical precedent governing this issue of jury nulliﬁcation expressly forbids

judges and attorneys from notifying juries of such an avenue in the courtroom. Thus,

80

juries Should be informed on Strategies about the possibility and tradition of
nulliﬁcation. To construct a moral case for jury nulliﬁcation, Butler (1995) endorsed a
radical critique of criminal law as racist (because it, along with most of the rest of our
legal system, functions as an instrument of White supremacy), and conjoins this with a
critique of democracy-based arguments against nulliﬁcation (Butler, 1995).

Butler’s goal was the subversion of the American criminal justice system, at
least, as it now exists, but in the form of constructive and carefully targeted civil
disobedience. This strategy was meant to apply pressure to government authorities to
get them to consider non-criminal methods of addressing some types of antisocial
conduct (Butler, 1995). Expanding on Butler’s framework, it is the moral
responsibility of all jurors to take a radical step, as long as the overwhelming disparity
in sentencing for crack cocaine exists. Utilizing his same example of jury nulliﬁcation
by White juries during the period of Fugitive Slave Laws, one Should not assume that,
with proper insight to the clear-cut disparity that exists, that the outcome would not
change. In a society where racism is woven into its very fabric, the impact would be
effective if it involved and was supported by White jurist.

In addition to this radical approach, the following steps are recommended:
First, since the crack cocaine laws were originally designed to encapsulate high-level
drug offenders, then penalties for powder cocaine should be higher since more people
are involved in trafﬁcking at levels much higher than the street dealer. Second,
penalties for powder cocaine Should be higher than crack cocaine since the latter
substance cannot be made without the former. Simply put, ice cubes cannot be made

unless you have water. Third, increase the mandatory minimums for all other drugs

81

equal to crack possession. Currently, the maximum sentence for simple possession of
any other drug is a one-year prison term. Fourth, reduce the weight minimums to
within a range suggested by the Sentencing Commission—the current
recommendation is a range of 2:1 to 15:1 (U.S.S.C., 1997). Fifth, provide sentence
enhancements for drug crimes that involve a firearm or some other type of dangerous
weapon, which results in death or serious injury, and/or trafﬁcking in locations or to
individuals considered to be protected.

A primary limitation to this study is the statistical data utilized from Uniform
Crime Reports. Since reporting is voluntary, some law-enforcement agencies may
have ulterior motives for not submitting data. For example, Atlanta’s Police Chief
Richard Pennington referred to his city as the most dangerous in the nation.
After conducting an internal audit Pennington found that ofﬁcers intentionally and
routinely underreported crime(s), by discarding crime records and improperly closing
open cases. He argued that city ofﬁcials were more concerned with the city’s image
as a tourist destination. The report found that Atlanta has a murder rate 52% higher
than the national average and residents, particularly African Americans, were more
likely to be victims of a violent crime then residents of Washington, DC, Detroit,

Chicago, or Los Angeles (Barry, 2004).

Recommendations for Further Study

For future studies, this research Should expand on to include the impact of
science and religion (Christianity) as it relates to the inﬂuence and establishment of
law. Christianity has traditionally been primarily utilized to justify the bondage

system in the United States. According to Inciardi, the Mosaic code (also known to as

82

the Ten Commandments) is the basis from which United States laws were established
(Inciardi, 1996).

With regard to science, Charles Darwin’s “Origin of Species” laid the
groundwork for what is now referred to as “biological assumptions on crime.” A
component of his theory of natural selection evolved to include “Social Darwinism,”
positing that the stronger species survive and dominate the weaker ones. Crime and
genetic theories developed as a subsequent outgrowth of Darwin’s original thesis.
Caesar Lombroso’s work on “biological crime” is the genesis of the Italian School of
Criminality. The theory hypothesizes variant Strains within the human family with
some having a higher genetic predisposition to crime than others. It also theorizes that
those who engage in criminal activity can be identified through the physical
characteristics of biological determinism; that is, the premise is that there are members
of the human family who have characteristics, which when placed in a certain
environmental framework, were predisposed not only to commit a crime, but also to
commit certain types of crime as well. As such, “free-will” disappeared under
determinacy, equality bowed before natural differences, and expert knowledge and
human laws were created and became scientiﬁc laws that were discovered (Lanier&
Henry, 1998).

In the 1927 case of Buck versus Bell, Justice Oliver Wendell Holmes of the
US. Supreme Court wrote: “It is better for all the world if instead of waiting to
execute degenerate Offspring for crime, or let them starve for their imbecility, society
can prevent those who are manifestly unfit from continuing their kind ("Buck v Bell,"

1927).” Following the Court’s ruling, 30 states enacted laws allowing for the

83

sterilization of convicted criminals in the interest of protecting the community from
generations of criminals.

Religion, science, and law present a symbiotic relationship in which one cannot
exist without the merits of the other. Viewing within a historical context, I would argue
that through the premise of conﬂict there developed a cultural dualism that imposes its
conscious and unconscious will on Blacks. Subsequently, either of the methodologies
was created as a reaction to the conduct of the subordinated group, or in order to
regulate their conduct. The intent remained the same; that is, to control the activities
of the subordinate groups.

Additional recommended research include how has the disenfranchisement of
African Americans created the development of an industry referred to as the “prison
industrial complex?” The expansion of prison building has boomed throughout the
country. Municipalities are competing through tax incentives to have the next prison
facility built in their community. The most important variable for the PIC is housing
the inmates and present research demonstrates they are more likely to be Black
inmates.

Finally conduct a survey analysis to assess if the perception of Black
criminality (particularly Black males) is embedded within the white society as a
cultural norm. This survey should not only include the common variables of gender
and demographics but also age e. g. Whites who were born after the Civil Rights era,
the Reagan era, and during the Hip Hop Era. Then also include non-White racial

groups who self-identify with Whiteness.

84

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