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Obama's Justice Department Is Sending More People of Color to Prison on Drug Charges

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You would think that Eric Holder, the first African American Attorney General, and Barack Obama, the first African American President, would be vigilant that there was no racial discrimination in the Justice Department of their Administration. You would think.

The press, the Congress, the courts, and the Administration have all recognized that in the 1990s, the 2000s, and the 2010s, the federal crack cocaine laws were being enforced in a racially disparate manner. For much of this time, two-thirds or more of America's crack users have been white. Research by sociologists has demonstrated that generally people buy drugs from people the same race that they are. It was a shock in 1995 when Dan Weikel reported for the Los Angeles Times that in the federal courts in a half dozen major cities no white person had ever been prosecuted for selling crack under a harsh law that Congress hastily passed in 1986.

In June 1986, Len Bias, a star of the championship University of Maryland basketball team died. He was snorting cocaine and drinking the night he signed with the NBA champion Boston Celtics, and inked a multi-million dollar endorsement contract for athletic shoes. He had a cocaine-induced seizure and was pronounced dead in a matter of hours.

I was one of Congress's drug experts. As Congress reacted in July and August, I was the primary committee counsel in the House of Representatives helping the U.S. Congress write the mandatory minimum drug laws over a few days, with no hearings or effective input from anyone else.

As a result of the law that I helped write, the mandatory sentences for selling crack cocaine were triggered by selling much smaller quantities of the drug than for selling powder cocaine. If to be sentenced to a mandatory minimum sentence for 10 years, one had to sell 5 kilos of powder cocaine (5000 grams or about 12 pounds), one would get the same minimum 10 year sentence for selling only 50 grams of crack cocaine (less than two ounces; about the weight of a candy bar).

Note that crack cocaine is easily made from powder cocaine. One simply adds baking soda and water to powder cocaine and heats it on a stove or in a microwave. The very simple chemical reaction converts powder cocaine (cocaine as a salt, cocaine hydrochloride, which is stable, fireproof, water soluble and easily injected) into the base form which when heated is easily vaporized and inhaled, i.e., smoked. Crack is not more dangerous than powder cocaine - inhaling the vapor into the lungs is a much more efficient way to get high than trying to snort the powder into the nose.

Considering that major dealers arrange for shipments of tons of cocaine (one ton equals 1 million grams) every month, 50 grams of cocaine is an insignificant amount. Congress wanted the Justice Department to focus on high-level dealers but made a mistake in choosing this small quantity to be the indicator and I was part of that mistake.

But if Congress had never selected these small quantities, DEA and the leaders of the Justice Department would never have picked 50 grams of crack as the measure of a major trafficker.

What is so baffling is why they continue to go along with it, even after it is clear that the numbers were wrong. Throughout the 1990s and 2000s reports from the U.S. Sentencing Commission pointed to unwarranted disparity in federal cocaine prosecutions. By early 2008, Senators Obama, Biden and Clinton, among others, had cosponsored the Drug Sentencing and Cocaine Kingpin Trafficking Act of 2007 (S. 1711, 110th Congress) to eliminate the lower crack triggers: all cocaine mandatory minimums (powder and crack) would start at 500 and 5000 grams. The Justice Department would be encouraged to prosecute high level traffickers with additional funds, and increased fines that could be obtained from the convicted high level traffickers -- fines as high as $75 million. This bill was based on model legislation I drafted in 2005 called the Cocaine Kingpin Punishment Act.

Congress passed a version of the act in 2010, but it only modified the crack quantity triggers slightly -- 28 grams replaced 5 grams to trigger a 5 year minimum; 280 grams replaced 50 grams to trigger a 10-year minimum. President Obama signed the law at the White House.

But looking at the latest data, the racial disparity in federal crack cocaine cases is even worse! In FY 2009, Blacks were 79.0 percent of all federal crack cocaine defendants. By FY 2012, that percentage had gone UP to 82.6 percent. In FY 2009, whites were only 9.8 percent of all federal crack cocaine defendants. But FY 2012, that percentage had gone DOWN to 6.7 percent. Under Holder and Obama, the racial disparity has gotten significantly worse.

This post is part of a series produced by The Huffington Post to mark the theatrical and on-demand release of "How To Make Money Selling Drugs," a new documentary by Matthew Cooke that examines the drug trade from a variety of angles. For more info on the film, click here.