Term Paper on "Disparity in Sentencing for Crack vs. Powder Cocaine"

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Disparity in sentencing for crack vs. powder cocaine

Sentencing Disparities: Crack vs. Powder Cocaine - a Literature Review

Sentencing Disparities

Sentencing disparities are very prevalent when one examines crack vs. powder cocaine, but it is also important here to understand that this is not the only issue where this type of disparity is concerned. In other words, there are sentencing disparities in many different aspects of the legal system, and it is necessary to address this overall issue as well, in order to fully see the magnitude of the concern over this type of disparity. Quite a large number of blacks have been arrested for drug violations involving both crack and powder cocaine (Pope, 1976). Men and women are both included in this issue and it appears to have no specific gender identity or difficulties (Pope, 1976).

There are more African-American individuals on death row than white individuals and most of these individuals awaiting execution have committed drug crimes, many of which involved crack, and less that involved powder cocaine (Pope, 1976). Even the Attorney General of the United States is willing to admit that drug laws are the main reason that there are so many African-Americans on death row today and that African-Americans are arrested at a higher rate for these types of crimes than Caucasian individuals (Pope, 1976). While this may seem irrelevant to a discussion of crack vs. powder cocaine specifically, the issue of minority status is actually somewhat important in sentencing guidelines for all crimes, although it is not an issue that judges are legally allowed to use.

Race is, of course, not the only issue that can affect sentencing disparity. Someone's age, their blood alcohol content, the drugs that were found or not found in their system, whether they have previous offenses for the same or similar crime, whether they have ever been charged with other crimes before, and other factors all play into the equation, and all will be discussed. However, it does appear that race, while being only one variable, tends to be the largest one where sentencing disparity is concerned, regardless of the type of drug or type of cocaine that is seen in the particular case (Banks, 2004). Since it is such a large factor, this literature review will discuss it more than the other variables, simply because of the amount of literature that has been written on the subject. However, it should be stressed that race cannot legally be used by judges as a reason for giving someone either a harsher or lighter sentence, and it is by far not the only variable that appears to relate to the apparent sentencing disparity in this country. It is also not the only variable that affects disparity where crack vs. powder cocaine is concerned, but it does appear to play a factor, which is the reason for addressing it here.

Also important to discuss here is the issue regarding the courts and their burden of proof (Pope, 1976). They do not look kindly on individuals who want to make a case that their race or other illegal factors have been what has caused them to be treated unfairly (Pope, 1976). The bar is so high for the burden of proof that very few individuals are able to meet it and it is important to discuss whether this bar is set too high and why it is so vitally important (Pope, 1976). This becomes extremely difficult due to the idea of being similarly situated (Pope, 1976). Individuals who believe that they have been mistreated either by officers or by the courts, in either arrest or sentencing, must prove to the judge that they have been treated in a way that is different from individuals who were similarly situated (Pope, 1976).

For the issue of crack vs. powder cocaine, this might not seem as difficult to prove, but for drug crimes and other crimes it is exceedingly difficult because similarly situated can been so many different things (Pope, 1976). This is also true of DUI issues as even a change that is relatively minor in the content of someone's blood alcohol could be ruled by a judge as not being similarly situated (Pope, 1976). Unless the circumstances are virtually exact with the exception that one variable is slightly different judges will rarely find that an individual was similarly situated and therefore rarely agree that this individual had been treated wrongly based solely on one small issue (Pope, 1976). This stops many individuals from using this issue as an excuse for 'unfair treatment,' and it cuts down on the lawsuits that are often seen and some of the convictions that are being thrown out because the individual successfully argued that he or she was treated improperly.

While it is important not to be too lenient on crime and to ensure that all individuals who have committed crimes are punished, the issue of being similarly situated is somewhat subjective and therefore the courts do not have much tolerance for this type of issue (Payne, 1997). They often find that an individual was in fact not similarly situated even if the circumstances were very close (Payne, 1997). There are also difficulties with the prosecution in this in that sometimes the prosecutor is the only individual who has information available as to whether anyone else has been similarly situated to this individual (Payne, 1997).

There are also quite often no individuals whom the courts can draw upon to show that there was either a similar or dissimilar situation (Payne, 1997). That is not to say that no individuals who are basically similarly situated to the client have been arrested for crack or powder cocaine, but only that gender, age, amount of the drug, prior convictions, and thousands of other reasons can be related to why a court would say that someone was not similarly situated and therefore the idea that an individual was mistreated based on race or another illegal factor would be thrown out for lack of information regarding those who were similarly situated (Payne, 1997). Naturally, much of this is done to avoid the unnecessary claims that often clog court systems and cause difficulties.

However, because the standard of proof is set as high as it is now those who were honestly unfairly treated are unable to do anything about this and this causes them a great deal of stress and anxiety that could have been avoided (Payne, 1997). Discrimination is much easier to prove then whether someone is similarly situated or whether someone else has been wronged (Payne, 1997). It would appear to make more sense if the burden of proof was the same for these types of cases as it is for discrimination cases, as it would make mistreatment by law enforcement much easier to prove (Payne, 1997). This would potentially stop individuals in law enforcement from mistreating individuals based on race, age, or gender in this way due to the fact that they would be aware of the dangers of getting caught for this issue and finding themselves in a great deal of trouble (Payne, 1997).

However, it is quite likely also that there are many good officers out there who would not mistreat someone or treat them differently based on any of these issues and that there also might be individuals out there who will claim they have been mistreated simply because they wish to cause difficulties (Payne, 1997). However, while this may very well be the case there are also statistically significant studies that indicate that there is sentencing disparity and therefore mistreatment based on illegal reasons, such as the race of an individual (Payne, 1997). Discussing these issues and the possible solutions to them is important because it would seem that solutions could be found if the subject was approached from the right way.

Even if solutions are not able to be found for this issue discussing it makes individuals in this country aware of the problems that the criminal justice system is facing and the difficulties that many are dealing with when it comes to arrest and convictions (Payne, 1997). Looking toward different ways of addressing these types of issues helps to make problems that were previously unsolvable much more solvable and this makes for a great deal of help for many people who are currently having difficulties with the criminal justice system and how it treats them (Payne, 1997).

For example, consider the fact that most of the drug crimes committed by gangs have a large percentage of African-American individuals in them (Payne, 1997). This would make it appear that these individuals are being targeted simply because of their race, but those of the criminal justice system argue that this is simply not true (Payne, 1997). Instead, these individuals state that the gangs are being targeted because they commit more crimes and cause more drug offenses than other individuals (Payne, 1997). The fact that these gangs are largely African-American is irrelevant, and they would be targeted regardless of… READ MORE

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