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Smoked Not Snorted: Is Racism Inherent in Our Crack Cocaine Laws?

Publication Title

Washington University Journal of Urban and Contemporary Law

Abstract

This Article uses Russell as a vehicle to critically evaluate the racially discriminatory impact of the war on drugs in general, and federal and state enhanced crack penalties in particular. Part I of this Article surveys what is arguably the most severe indictment of the war on drugs: the over-incarceration of Blacks and Latinos. Part II discusses the potential for bias and discrimination in drug scheduling and penalty setting because it is impossible to base drug laws on objective criteria. Part III focuses on crack cocaine. The discussion begins with a survey of various federal and state crack laws, highlighting the harsher sentences given to violations involving crack than to those involving powder cocaine (cocaine hydrochloride). Finally, Part IV explores the possibility of pursuing an equal protection challenge to enhanced crack penalties, beginning with a review of the federal equal protection doctrine's failure in this area. This Article ultimately argues that state supreme courts should scrutinize enhanced crack penalties under state equal protection doctrines that are or can be more protective than the federal equal protection doctrine, thereby following the successful example of the Minnesota Supreme Court in Russell.

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