Stepping at least part way into the debate over the federal government’s prosecution of crack cocaine offenses, the Supreme Court agreed Monday to decide whether the government must explain why nearly all those prosecuted for federal crimes involving crack are black.
The justices accepted an appeal by the Clinton administration of a ruling last March by the federal appeals court in San Francisco, which upheld a federal district judge’s order requiring federal prosecutors to explain statistics showing a racial disparity in prosecutions for crack offenses.
When the prosecution refused to comply with the order, Judge Consuela B. Marshall of U.S. District Court in Los Angeles dismissed the indictments of five black defendants on conspiring to distribute crack. Judge Marshall had issued the order in response to the defendants’ claim that they had been selected for federal prosecution because of their race.
In its Supreme Court appeal, the administration argues that Judge Marshall’s order, and the appellate ruling upholding it, was erroneous and will “fundamentally change the legal principles that have governed selective prosecution claims.”
The administration maintains that it is not sufficient to show that most of those prosecuted were black; an essential part of a selective prosecution claim is evidence that there were also white offenders who avoided prosecution at the same time, Solicitor General Drew S. Days 3rd told the justices in the administration’s brief.
“Black individuals dominate large-scale dealing in crack,” the brief said, adding that the statistics simply reflect that fact.
The case, U.S. vs. Armstrong, No. 95-157, does not directly raise the question of whether federal prison sentences for offenses involving crack and powdered cocaine should be the same. Under current law, there is a mandatory minimum sentence of five years for possession of 5 grams of crack or 500 grams of powdered cocaine.
The 100-to-1 ratio applies to possession of larger amounts, too. The result has been long sentences for black men from the inner cities, where crack is common, and correspondingly lenient treatment for white suburban residents, who are more likely to use powdered cocaine.
According to the U.S. Sentencing Commission, 90 percent of those convicted last year for federal crack offenses were black and 3.5 percent were white. For powdered cocaine, 25.9 percent were white, 29.7 percent were black and the rest were Hispanic drug users.
Earlier this year the Sentencing Commission proposed removing the disparity in sentencing for drug possession. But the Justice Department opposed the change, and Congress passed a bill rejecting the proposal.
Disturbances in five federal prisons earlier this month were widely attributed to prisoners’ anger over the votes in Congress. President Clinton signed the bill Monday.
Clinton, while critical of the “disproportionate percentage” of young black men going to prison, said he signed the bill retaining severe sentences for crack because “I am not going to let anyone who peddles drugs get the idea that the cost of doing business is going down.”