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Derrick Z. Jackson

Easing the drug laws

Mandatory minimum sentencing has been a form of American apartheid

Tyson Schroeder for the Boston Globe

Attorney General Eric Holder speaks in measured, even tones, which understates his message even on momentous occasions. Such was the case Monday when he announced that federal prosecutors would no longer use mandatory minimum laws for low-level, nonviolent drug offenders.

“Let’s be honest,” Holder told the American Bar Association. “Some of the enforcement priorities that we have set have had a destabilizing effect on . . . particular communities, largely poor and of color. And applied inappropriately, they are ultimately counterproductive.”

To be truly honest, the nation’s drug laws have been a form of American apartheid for the last quarter century. They have been more than counterproductive and destabilizing. They have destroyed too many lives in communities of color.

Even though illegal drug use is similar across racial lines, and white Americans are 63 percent of the nation’s population, African-Americans and Latinos make up 61 percent of those in state prisons for drug offenses and 70 percent of those convicted under mandatory minimums. The wildly disparate arrest rates occur whether the drug is cocaine or marijuana, in both red states and blue states.


In Massachusetts, a state with a black governor, African-Americans and Hispanics are imprisoned respectively at 8-to-1 and 6-to-1 ratios compared to whites, according to the Sentencing Project, a national think tank that has long advocated for alternatives to incarceration. That is a higher ratio than any state in the Deep South.

The damage since the 1980s is incalculable, ranging from multiple generations of single-parent families to ex-felons severely limited in job options. Indeed, these laws have destroyed a piece of democracy itself, as more than a third of people disenfranchised by a felony are African-American. The 2.2 million black people who are barred from voting could clearly affect the outcome of narrowly contested elections.

But only recently has this mattered, because politicians of all stripes feared being seen as soft on crime. In 1997, I was in a group of African-American newspaper columnists who asked President Clinton about the 1986 cocaine laws that meted out the same mandatory minimum sentence for only 5 grams of crack as for 500 grams of powder.


He said, “The situation that exists is unfair, unjustifiable, and should be changed.” Nothing changed under him or President George W. Bush. In 2007, I asked candidate Barack Obama about these laws and he seemed torn between calling them “unjust” and questioning the worth of spending “all our political capital on a very difficult issue.”

Since then, with prisons bursting beyond capacity in the depth of a recession, political capital is being spent in the right direction. Congress narrowed the old 100-to-1 crack-to-powder ratio to 18-to-1. Based on science, there should be no discrepancy at all, but it is still a bipartisan improvement. California and many conservative states are scrambling for long-proposed alternatives to prison, such as drug treatment, re-entry assistance, and incentives for early release.

Of his state’s efforts, Republican Governor Nathan Deal of Georgia said that while the use of alternative sentences would save some taxpayer dollars, first and foremost they are aimed at “attacking the human cost of a society with too much crime, too many people behind bars, too many children growing up without a much needed parent, and too many wasted lives.”

Holder says he will now try to rectify at the federal level one of the nation’s biggest modern mistakes. Vanita Gupta, deputy legal director of the American Civil Liberties Union, said over the telephone that Holder’s announcement is not a “silver bullet” that replaces a congressional overhaul of discriminatory laws. Nonetheless, she hailed it as a call for “rational criminal justice policy.”


Marc Mauer, head of the Sentencing Project, said he hopes that Holder’s announcement is the beginning of a questioning of all sentencing policies. The United States, with 5 percent of the world’s population, has 25 percent of its prisoners, “with no proven relation to crime rates.”

Holder’s intervention is crucial. “When the top of the system speaks like this,” Mauer said. “It’s important.” Any crack in the wall of American apartheid is more than important. It is cause for celebration.

Derrick Z. Jackson can be reached at jackson@globe.com.