Criminal law can be understood as a set of interventions by the government to change the behavior of the public. These interventions are ideally intended to be impartial – as symbolized by Lady Justice’s blindfold – but, as themselves a product of human behavior, laws can be an institutionalization of prejudice. United States’ drug law is a salient example of this. Prior to 2010, the amount of crack cocaine an individual must posess in order to receive mandatory 5-year sentencing was 1/100th of the amount of powdered cocaine required for the same penalty. [1] US Senator Dick Durbin has observed that, “The sentencing disparity between crack and powder cocaine has contributed to the imprisonment of African Americans at six times the rate of whites.” [2] This striking disparity in legal policy and outcome can be explained in terms of Social Dominance Theory.
Social Dominance Theory attempts to explain human behavior as seeking to maintain group-based inequalities, where groups are stratified by factors such as gender, age, ethnicity, nationality, and so on. The injustice of these inequalities is maintained by myths that legitimize them, i.e. by explaining that the injustice does not exist, or is a necessary evil. In the worst case, these injustices can be formalized as institutional discrimination, for example in the form of discriminatory laws.
Social Dominance Theory would identify caucasians as the hegemonic group – i.e. the richer, more powerful, higher-status – and would predict that this group would behave in ways to reinforce and maintain that hegemony. Consistent with this prediction is the fact that the United States’ Congress has historically been primarily white [3]; as is the hypothesis that the legislation created by such a congress would seek to derogate minorites with the purpose of maintaining existing inequalities. The disproportionately-high incarceration rate of African-Americans for cocaine-related crimes supports this hypothesis. In addition, law enforcement shows a similarly striking pattern of bias – despite public health data showing that two-thirds of crack cocaine users are non-black, 80% of people arrested for crack-related crimes are black. [4]
Fortunately, over the last two decades, Congress has recognized the racially-discriminatory dimension to US drug law. However, despite several attempts at reform, the Fair Sentencing Act of 2010 only managed to reduce the disparity between mandatory sentencing for crack vs. powdered cocaine from 100:1 to 18:1, despite the observation by Gil Kerlikowske, Director of the Office of National Drug Control Policy that “there is no scientific basis for the disparity.” [5] One interpretation of this outcome is that even an acknowledgement by the United States government of the scope of this injustice was insufficient to overcome the institutionalized discrimination that it had itself created. To the extent that this is true, we need a reform of our legislation process which takes into account these findings from social psychology – specifically, to prevent the hegemonic groups most likely to attain policial office from using that power to reinforce inequality.
- Crack Cocaine Mandatory Minimum Sentences. (n.d.). Retrieved March 6, 2015, from http://famm.org/projects/federal/us-congress/crack-cocaine-mandatory-minimum-sentences/
- Johnson, C. (2009, October 16). Bill Targets Sentencing Rules For Crack and Powder Cocaine. The Washington Post. Retrieved March 6, 2015.
- Bump, P. (2015, January 5). The New Congress Is 80 Percent White, 80 Percent Male and 92 Percent Christian. The Washington Post. Retrieved March 6, 2015, from http://www.highbeam.com/doc/1P2-37550085.html
- Antoine, M. (2010, July 27). House Could Consider Legislation This Week to Reduce Crack and Cocaine Sentencing Disparity. Retrieved March 6, 2015, from http://www.civilrights.org/archives/2010/07/1029-sentencing-disparity-vote.html
- Congress OKs Fair Sentencing Act. (2010, July 28). Retrieved March 6, 2015, from http://www.upi.com/Top_News/US/2010/07/28/Congress-OKs-Fair-Sentencing-Act/UPI-22641280367802/
Wow, I always thought that the reason a smaller amount of one drug would give you the same sentence as a larger amount of another drug was because of its potency. I never knew or thought about there being a hidden motive behind the drug laws to maintain racial inequality. I asked my husband if he knew about this and apparently he has known about it for some time. It is just another reminder of how easy it is to be misinformed and how important it is to pay attention and not allow yourself to become complacent.
I decided to do some exploring of other examples of laws with hidden agendas to maintain racial inequality and, to my surprise, I learned that the concept of race itself is an example. According to http://www.PBS.org, it was not until the creation of “freedom” in the US that the concept of “race” was created “to explain why some people could be denied the rights and freedoms that others took for granted” (http://www.pbs.org/race/001_WhatIsRace/001_00-home.htm). I found this confusing because slavery, prejudice and discrimination definitely existed long before the European settlement of the Americas. But the site addresses this as it explains that “ancient societies did not divide people according to physical differences, but according to religion, status, class (and) even language”. The site even has a section for you to try your hand at identifying a persons “race” based on their looks, which reveals the ridiculousness of trying to categorize anyone according to their appearance.
Reference
Race – the power of an illusion. (n.d.). Retrieved from http://www.pbs.org/race/000_General/000_00-Home.htm