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Culture War Roundup for the week of May 15, 2023

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I meant re the nonpolicing issues you mentioned.

That other things are bad because they disproportionately include or exclude black people. Surely you're aware of the idea as applied to schools, jobs, or even national parks.

That's where your argument breaks down. I know many people who are left of center who are skeptical of hiring processes that disproportionately affect black people for, arguably, no good reason (eg: jobs that require a college degree for no apparent reason) or spending on state parks in the wilderness instead of local parks, etc, but who have little problem with enforcing criminal law, because there is good reason. (And of course there is a distinction between enforcing criminal law and particular practices of the criminal justice, some of which might have disparate impact [possible example: the crack versus powder cocaine sentencing disparity]).

So, yes, it is perfectly possible to update re criminal enforcement without updating re schools, jobs, parks, etc.

This would be more reassuring if people seemed genuinely curious about the reasons and whether they are good. The crack sentencing disparity is a case in point. In left of center spaces, the standard explanation is white supremacy.

In the 1980s the number of people who admitted on surveys to using cocaine increased over 40%. The homicide rate was climbing and climbing. The headlines were full of overdoses, violence, and birth defects from prenatal drug exposure. It was mistaken but common knowledge that crack was more potent, addictive, and/or dangerous than powder cocaine. The media declared crack an “epidemic.”

In June of 1986, college basketball player Len Bias died of a cocaine overdose two days after being drafted by the Celtics. Eight days later Don Rogers, safety for the Cleveland Browns, died of an overdose the day before his wedding. They were 22 and 23 years old, both promising and popular black athletes.

The news made it to Tip O’Neill (D), Speaker of the House, just before midterm elections. Here’s how Eric Sterling, then counsel to the U.S. House Committee on the Judiciary, describes what happened next: “That's all his constituents are talking to him about. And he has the insight, ‘Drugs, it's drugs. I can take this issue into the election.’ He calls the Democratic leadership together in the House of Representatives and says, ‘I want a drug bill, I want it in four weeks.’ And it set off kind of a stampede.” The Anti-Drug Abuse Act of 1986 went before Congress with Democrats and Republicans tripping over each other to vote for it.

A coalition of influential black pastors wrote to the Congressional Black Caucus in support of the bill. Charles Rangel, founding member of the caucus, had already spent a decade fighting the heroin epidemic in his Harlem district. He considered drugs a “genocidal poison,” and he had been pressuring Presidents Nixon and Reagan to launch an all-out offensive. Under his leadership, many members of the Black Caucus voted in favor.

The law included funding for substance abuse education, counseling, and treatment, as well as AIDS research. It also included mandatory minimum sentences. To show how deeply they cared, Congress set the same minimum, 5 years, for 500 grams of cocaine and only 5 grams of crack. That is a 100:1 ratio.

Nine years later, the US Sentencing Commission pointed out to Congress that 80% of crack users were black, and the resulting sentencing disparities were holy shit. But homicide had only just started coming down from its absolute peak. To lower penalties on crack would look “soft on crime," so Congress did nothing. It took another ten years for them to start reducing the harsh sentences and bring the ratio down to its current 18:1.

Rangel believed in his vote. In the early '90s, he engaged in a televised debate with William F. Buckley, who argued the drug war was a costly and racially divisive failure. Rangel insisted that, "We should not allow people to be able to distribute this poison without fear that they might be arrested and put in jail." In the early 2000s he did acknowledge that tough drug laws were hurting many black families. But in a memoir published in 2007, he maintained that, because of those well-intentioned policies, “a lot of the drug-related bleeding was staunched."

You could call Rangel an unwitting pawn of white supremacy, but then you would have to explain the other 95% of his career. He was savvy enough to chair the House Ways and Means Committee, and throughout his 46 years in Congress, he averaged 90 - 100% ratings from the ACLU and the NAACP.

None of this background seems to be common knowledge, even though it's well within living memory. It plays no role in the current discourse about drug policy, even though it can teach us important lessons about media-driven moral panics, well-intentioned policy mistakes, and misguided bipartisan consensus. Those with the strongest moral views on disparate impact are, in my experience, the least likely to know how we got here. Are they really updating their stance on other issues with well-researched nuance?

It was mistaken but common knowledge that crack was more potent, addictive, and/or dangerous than powder cocaine.

Uh, crack is definitely more potent than powder cocaine. (as commonly used I guess -- you could shoot up the powder coke for an even more potent experience than crack, but most people doing that are kind of beyond the reach of anything in the space of "drug policy".

Does this make increasing the severity of sentences for selling crack a good idea? IDK, I don't think there should be sentences for either. But this wasn't a policy based on bad information per se.

You’re absolutely right; I misremembered and mangled some reading on fetal cocaine exposure and fearmongering about “crack babies” and an emerging “biological underclass.” Crack’s dangers in this this specific respect were overstated in the 80s panic, and this overstatement was the basis for policies like hospitals drug testing pregnant women and reporting them to the police.

I don’t mean to downplay the dangers or damage, and I do understand the impulse to criminalize. The Temperance Movement was responding to genuine suffering. In the 1830s, the average American man was drinking over 7 gallons of alcohol a year, and rates of domestic violence, accidents, brawls, and cirrhosis reflected this. Some studies indicate that Prohibition did actually make a dent in those problems. It also resulted in millions of questionable prescriptions for medicinal liquor, popularized more potent beverages, fueled corruption and organized crime, and likely spiked the homicide rate. This was the perception at the time. See this little 1931 ditty:

Prohibition is an awful flop.

We like it.

It can’t stop what it’s meant to stop.

We like it.

It’s left a trail of graft and slime,

It don’t prohibit worth a dime,

It’s filled our land with vice and crime.

Nevertheless, we’re for it.

My feeling that 1980s law- and policymakers should have known better is based more on this historical example, which was very much available to them, than on how dangerous crack turned out to be.

the standard explanation is white supremacy.

But that has nothing to do with what I said, which is that the sentencing disparity 1) has a disparate impact; and 2) there is no good reason for the policy. As you say, there was a "mistaken but common knowledge that crack was more potent." In contrast, punishing murderers has a disparate impact, but DOES have a good reason behind it. Hence, OP is wrong to state that supporting the latter REQUIRES supporting the former. Whether some on the left are ignorant of the history does not change that. OP made a logical claim, not an empirical one.

It just seems unlikely that people ignorant of the history and misdiagnosing the causes of the disparities are going to correctly identify the good reason ones and the no good reason ones. Given the place in the discourse held by thinkers like Ibram Kendi, who deny that there can be good reasons for disparities, I think this is a reasonable concern.

Edit: To expand - from a practical point of view, it's difficult to say out loud and explicitly, "This policy has a racially disparate impact, but I want to do it anyway because of good reasons." That's a difficult place to stand. It's extremely vulnerable to accusations of bad faith.

Then there's the trouble with accurately identifying the good reasons and the bad reasons, in an environment where white supremacy (a bad reason) is the default explanation for disparate impact.

In practice, in order to arrest murderers without regard to ethnicity, you probably have to lessen the rhetorical (and possibly legal?) power of "disparate impact." This is what I interpreted OP to be saying.