Crack as Proxy: Aggressive Federal Drug Prosecutions and the Production of Black–White Racial Inequality

DOIhttp://doi.org/10.1111/lasr.12348
Published date01 September 2018
Date01 September 2018
Crack as Proxy: Aggressive Federal Drug
Prosecutions and the Production of Black–White
Racial Inequality
Mona Lynch Marisa Omori
In this article, we empirically examine jurisdictional variations in federal
crack prosecutions to measure whether aggressive crack prosecutorial prac-
tices are associated with racial inequality in federal caseload characteristics
and outcomes. Building on theories that address the production of inequal-
ity in institutional settings, we hypothesize that U.S. Attorneys’ offices that
are more proactive in charging defendants with crack, relative to other kinds
of drugs, and relative to case strength and seriousness, will demonstrate
higher rates of black–white racial inequality in case outcomes across the
entire criminal caseload. Consistent with theories of institutional racism, our
findings demonstrate that aggressive crack prosecutions at the district level
are a strong predictor of black–white inequality in conviction rates across the
entire criminal caseload, and a much more modest predictor of inequality in
final sentence outcomes. We conclude by discussing the importance of
organizational-level empirical analyses for more effectively uncovering the
conditions under which inequality can and does flourish in legal settings,
and suggest possible future lines of inquiry along these lines.
Crack cocaine first appeared in the major urban areas of
New York, Miami, San Diego, and Los Angeles in the early
1980s, setting in motion a wave of new legislation and law
enforcement practices that spread throughout the nation (Fagan
and Chin 1989). Although the emergence of crack was associated
with a number of social harms (Fryer et al. 2013), the political
and legal response to its threat was disproportionately punitive,
particularly at the federal level (Provine 2007; Reinarman and
Levine 1997; Sklansky 1995). Most infamously, Congress passed
the Anti-Drug Abuse Act of 1986, a provision of which incorpo-
rated a 100–1 powder–crack cocaine disparity whereby, for
We would like to thank Anjuli Verma, the LSR editors, and the anonymous reviewers
for their thoughts, suggestions and advice. This project was supported by Grant No. 2010-
IJ-CX-0010 awarded by the National Institute of Justice, Office of Justice Programs, U.S.
Department of Justice and by Grant No. 1251700, awarded by the National Science Foun-
dation to the first author. Points of view in this document are those of the authors and do
not necessarily represent the official position or policies of the U.S. Department of Justice
or the National Science Foundation.
Please direct all correspondence to Mona Lynch, Criminology, Law and Society,
2340 Social Ecology II, UC Irvine, Irvine, CA 92697-7080; e-mail: lynchm@uci.edu.
Law & Society Review, Volume 52, Number 3 (2018)
©2018 Law and Society Association. All rights reserved.
773
instance, offenses involving just 5 g of crack cocaine were subject
to the same 5-year mandatory minimum sentence as offenses
involving 500 g of powder cocaine. Two years later, it made pos-
session of crack cocaine subject to a 5-year mandatory minimum
prison sentence. No other simple drug possession offense man-
dated a prison sentence at all under the federal code (Pub.
L. No. 100–690 1988).
A number of scholars have argued that the federal war on
crack, including the on-the-ground deployment of crack laws, has
functioned as a tool of racial subjugation while justified through
the logics of public safety and crime control (Alexander 2010;
Dvorak 2000; Lynch 2013; Provine 2007; Tonry and Melewski
2008). Congressional debates about crack reiterated racially coded
media narratives about the dangerous “urban” poor addicted to
crack (Dvorak 2000; Provine 2007), unfit black mothers raising
crack babies (Roberts 1997), and other threats posed by crack-
related criminality. These narratives were in direct contrast to
how whites’ cocaine and freebase use, which predated crack
cocaine but received little media and political attention, was both
portrayed and sanctioned. In short, the federal reaction to crack
was “not merely a rational response to a new threat to public
health and public order” (Reinarman and Levine 1997: 19); it was
also racially “coded” in its over-reliance on punitive criminal law
to address the problem of crack (Dvorak 2000).
Yet, while the 1980s’ federal drug statutes mandated harsh
penalties for crack defendants across all the U.S. federal districts,
those statutes have not been uniformly deployed. Rather, prosecu-
tors in some districts have been much more proactive in pursuing
crack cases, and their attendant lengthy sentences, than in others.
Moreover, as the crack panic subsided, and public health and pol-
icy experts pointedly criticized the purely punitive approach to
crack as ineffectual and even counterproductive, federal law
enforcement’s imperative to pursue crack convictions, especially
in lower-level cases, became harder to justify (Sklansky 1995; U.S.
Sentencing Commission 2002). Thus, over time, the prosecutorial
choice—at the federal district level—to continue to aggressively
pursue crack cases seemed increasingly driven by factors other
than public safety concerns.
In this article, we assess the racial legacy effects of the 1980s’ fed-
eral crack “war.” Specifically, we examine jurisdictional variations in
federal crack prosecutions from 2002–2012 to measure whether
aggressive crack prosecutorial practices are associated with institu-
tionally patterned inequality. We posit that, in the wake of the crack
panic, those federal districts that have been more proactive in prose-
cuting crack offenses, relative to other kinds of drugs, and relative to
case strength and seriousness, will demonstrate higher rates of black–
774 Crack as Proxy
white racial inequality in case outcomes across the entire criminal
caseload. In this sense, we ask whether prosecutorial practices related
to crack function as a proxy indicator—a metaphorical “miner’s
canary” (Guinier and Torres 2002)—of racial discrimination in the
federal criminal justice system. Using data from the U.S. Sentencing
CommissionandtheexecutiveofceoftheU.S.Attorneys,wepre-
sent novel group-level variable specifications to better capture the
key mechanisms that may contribute to racial inequality in the federal
criminal justice system.
In the next section, we provide a background sketch of the
1980s crack “frenzy” and its role in federal drug legislation. We
then detail developments in federal crack policy and adjudication
practices over time to provide context for our underlying
research question that asks whether and how the post-crack
panic deployment of federal crack laws is associated with racial
disparities in federal criminal caseload outcomes. Following that,
we describe our conceptual and theoretical approach, which
foregrounds organizational-level production of inequality. Then,
we present our methods and results, which examine whether
federal crack-related prosecutorial practices are associated with
broader racial inequality in criminal justice outcomes. We con-
clude by discussing the implications of our findings for under-
standing institutionalized bias in complex organizations such as
federal courts.
Racial Targeting and the Federal Regulation of Crack
An “extraordinary antidrug frenzy” was unleashed with the
emergence of crack cocaine (Reinarman and Levine 1997: 1),
1
triggering intensified policing and penal responses in both state
and federal jurisdictions across the country. Urban police depart-
ments nationwide devoted more and more resources to street-
level drug law enforcement, and crack markets became the pri-
mary targets of those enforcement efforts (Beckett et al. 2005;
Beckett et al. 2006; Fagan and Chin 1989; Lynch 2011). By the
1990s, those convicted for crack cocaine offenses made up the
largest share of drug defendants who were sentenced to prison by
state courts, which produce the majority of imprisoned drug
defendants (Sevigny and Caulkins 2004).
Although the bulk of crack-related law enforcement occurred at
the state level, the federal system’s innovation of treating crack
1
Despite the political rhetoric elevating crack to the level of national emergency, it
never achieved dominance as a drug of choice, or even as a form of choice among those
who used cocaine (Reinarman and Levine 1997).
Lynch & Omori 775

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