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June 5, 2006 - CQ Weekly (US)

Meth Vs. Crack: Different Legislative Approaches

By Seth Stern, Congressional Quarterly Staff

Return to Drug War News: Don't Miss Archive

When Rep. Elijah E. Cummings visits rural communities in the Midwest that have been ravaged by methamphetamine use, he hears stories of despair and damage not unlike those he heard during the crack epidemic of the 1980s. His hometown of Baltimore includes some of the neighborhoods that were devastated the worst by crack, the last drug epidemic to draw an intense response from the federal government and local law enforcement.

The similarities exist despite fundamental differences between the populations affected by the two drugs. Meth is used mostly by white people in rural areas, while the epicenters of the crack epidemic were the African-American communities of the inner cities.

"If you were to close your eyes and listen to how they talk about the effect on communities, how it breaks up families and drives down property values, you would swear they were in any urban community" during crack's heyday, Cummings says.

What's different this time are the solutions that his congressional colleagues are promoting. The first comprehensive federal anti-meth law, enacted this year, focuses on cutting off the supply of the chemical ingredients used to make the drug -- not on toughening punishments for dealers or users.

"There seems to be more of an emphasis on shutting down these meth labs and trying to figure out ways to treat these addicts and then get them back into flow of society," says Cummings, a Maryland Democrat. "We don't get for crack or heroin that kind of support for prevention, treatment and rehabilitation."

Cummings is not alone in pointing out the apparent double standard, in both policy and rhetoric, that Congress is applying to the growing scourge of methamphetamine abuse. Lawmakers in both parties consistently characterize meth addicts in more sympathetic terms than they describe crack addicts, and they are showing far less enthusiasm for imprisoning users than at the height of the crack problem two decades ago.

It's not that meth is generating any less concern in affected areas today than crack did two decades ago. In both instances, members of Congress warned loudly that police in their communities were overwhelmed by a cheap, easy to obtain, highly addictive and almost untreatable menace.

Although lawmakers almost always rebut the notion, their own rhetoric suggests that race is an essential -- albeit, perhaps subconscious -- reason they are treating the two drug epidemics differently. Some sociologists and criminologists say the racial component is obvious.

"The difference is, meth is a white drug," says Daniel F. Wilhelm of the Vera Institute of Justice, a New York nonprofit organization that seeks to reduce racially disparate prosecutions.

"You don't see any pictures of young black men and women described as the face of meth," said Marc Mauer of the Sentencing Project, which advocates for overhauling sentencing law -- a reference to the before-and-after mug shots that sheriffs' offices and lawmakers often display to highlight the physical toll of meth addiction.

Sixty percent of people sent to federal prison for meth crimes were white and just 2 percent were black in fiscal 2004, the last year with complete statistics reported by the U.S. Sentencing Commission. By contrast, 10 percent of the people convicted of crack crimes that year were white and 80 percent were black. (In both cases, Hispanics represent the bulk of the difference.)

Leaders in setting drug policy on Capitol Hill have three principal explanations for why Washington is approaching the meth problem differently from the crack problem. First, manufacturers of methamphetamines -- also known as crank or speed -- are uniquely dependent on a few commercially available chemical ingredients, so targeting them instead of the people involved is the more efficient way to limit the drug. Second, congressional enthusiasm for tough mandatory minimum prison sentences has waned recently among Republicans and Democrats alike. And, finally, the political benefits of waging a war on drugs has declined in recent years, especially as the nation's voters' attention has been shifted more to the war on terrorism since Sept. 11.

Still, listening to the way members of Congress talk about meth users and the images they invoke to portray the problem leaves observers such as Craig Reinarman, a sociology professor at the University of California Santa Cruz convinced that many lawmakers at least talk about drug users differently when they're "drawn from the good old boy segment of our society, the us rather than the them."

The 'Most Virulent' Drug

What hasn't changed is the level of alarm that members of Congress from both parties profess when they decide there's a drug crisis.

Who Gets Convicted

In 1986, they expressed anxiety over the emergence of crack, a cheap cocaine derivative that delivers a quick, powerful but relatively short-lived high when smoked. Then, too, there was a racial subtext to the rhetoric -- particularly after the death of Len Bias, who had been picked first by the Boston Celtics in that year's NBA draft.

His high-profile death on the suburban University of Maryland campus exactly 20 years ago this month was initially attributed to an overdose of crack. Though an autopsy later showed cocaine rather than crack caused Bias' death, it nonetheless helped fuel a hysteria that summer about the drug, driven in part by fears that crack would jump "into the suburbs on both coasts," as a Newsweek cover story warned at the time.

In the succeeding months, lawmakers competed to describe crack in dire terms. Peter W. Rodino Jr., the New Jersey Democrat who then chaired the House Judiciary Committee, called it a "plague on our nation." Republican Sen. Paula Hawkins of Florida, warned that it turned people "into walking crime machines." That state's other senator at the time, Democrat Lawton Chiles, said it can "make people into slaves."

Twenty years later, there is a new and bipartisan push to describe meth as an even worse drug plague. While it has been available much longer than crack, its use has grown -- and spread geographically -- much slower. Motorcycle gangs sold meth along the Pacific coast in the 1960s, but only in the last decade has its use spread widely throughout the West and into the Midwest. The drug's popularity has been principally in rural communities, which lack police forces and treatment centers to fight it.

The number of meth addicts more than doubled between 2002 and 2004, the year when the number of people who said they'd used meth in the previous year (1.4 million) for the first time exceeded the number who said they'd used crack (1.3 million), according to the Department of Health and Human Services. By 2005, a National Association of Counties survey of mostly rural and suburban jurisdictions found meth as the biggest drug problem for local law enforcement agencies.

Where The Labs Are

Lawmakers argue that meth -- which can be smoked, snorted, orally ingested or injected -- is even cheaper to purchase, easier to find, more addictive and more harmful to the body than crack. Orrin G. Hatch, the No. 2 Republican on the Senate Judiciary Committee, calls it "the most virulent drug there is." Another Utah Republican, Rep. Chris Cannon, says that while "crack is associated with fast living," meth "is like crashing into a wall."

Rural and suburban lawmakers from the West and Midwest profess shock at the level of addiction that has reached into their parts of the country, which have never before been associated with widespread drug abuse.

Meth "is disturbing the quiet peaceful feelings in rural parts of the country," laments Republican Rep. Mark Kennedy of Minnesota, who represents suburbs north and east of the Twin Cities. "Its use is now also transcending social classes and gender," says Rep. Raul M. Grijalva, a Democrat whose Hispanic-majority district includes most of Arizona's border with Mexico. "There is no common denominator in categorizing a meth user. It could be your neighbor, a family member, a teenager, a mom."

Users As Victims

The lawmakers most vocally concerned about meth reject the notion that they're sympathetic to meth users because they tend to come from a higher-income, less urban and more white demographic than users of other narcotics.

In fact, Republican Mark Souder, who sponsored the House version of the anti-meth legislation enacted this year, says he and his northeastern Indiana constituents have less compassion for meth users than for other addicts. "When you come from areas where you see opportunities exist and you get whacked out on drugs, the sympathy is less than for in urban areas where they have no jobs or may not have fathers," he says.

But when many members talk about meth users, their sympathy often shines through.

"I view many of them as victims," says GOP Rep. Ken Calvert of Southern California.

Kennedy invoked "the tragic story of a young girl named Megan from a beautiful town" in his state when he appeared before a House Judiciary panel last fall to promote his own meth-fighting legislation. She got hooked on meth in seventh grade and turned to prostitution to pay for her habit, he said, and "In the face of so much suffering, we have an obligation to act."

Democrat Rick Larsen, who represents suburban territory north of Seattle, volunteers that he has no particular sympathy for meth users. But when talking about them, the constituent he first invokes by name is Ashley Kerwin, who became addicted at age 15 even though she is from "a good family, solid family" with a father who is "a successful commercial realtor."

And, at a Senate Finance Committee hearing in April on meth's effects on the welfare system, Republican Chairman Charles E. Grassley of Iowa and ranking Democrat Max Baucus of Montana clapped after a pair of recovering meth addicts from suburban St. Louis, Aaronette and Darren Noble, described their recovery. They applauded even though Darren, 34, had described how he served 46 months in prison for manufacturing meth. (Baucus also cooed over the "big blue eyes" of the couple's 15-month-old daughter, Summer, who sat on her mother's lap. The Nobles had only recently regained custody because she was born with meth in her system.)

In an interview later, Baucus said he was "quite certain" he would have reacted the same way to similar testimony by crack addicts. But, minutes later, he conceded that he feels more sympathy for meth users because "there are more kids involved, it's harder to solve, addictiveness is higher than crack or heroin."

The greater sympathy expressed by members of Congress, such as Baucus, is not much different than how African-American members responded to crack: Lawmakers are most concerned with problems that affect their constituents most directly. The problem is how little overlap there is between those two groups of lawmakers. Of the 138 members of the Congressional Meth Caucus, 127 are white.

Law enforcement officers on the front lines view the issue quite differently. Jim Tilley, who runs the Drug Enforcement Administration (DEA) field office in Baucus' home state and worked as an agent in New York City during the peak of the crack epidemic, rejects the idea that meth users are "just our neighbors or just people with some problems."

"The same people who use meth also sell meth, or cook it and sell it, and it ends up in our schools, your neighborhood," Tilley said. "Most people realize that, whether it's meth or crack, people have problems, but it doesn't get into our schools by itself."

Mark A.R. Kleiman, a UCLA public policy professor who studies drug addiction, says such lack of sympathy among law enforcement is typical: "If you talk to rural deputy sheriffs about meth users and urban cops about crackheads, you're going to hear exactly the same thing: These are bad scary people."

Tough on Crack

Concern about crack infused the writing of the anti-drug statutes of both 1986 and 1988 -- the statutes that continue to dominate the way federal lawbooks address narcotics, and the baseline from which Congress starts in reshaping drug laws.

The 1980s laws did everything from mandating drug testing to funding domestic drug treatment and education and international interdiction. And buried in each were provisions subjecting people connected with crack to more stringent punishments than those connected to any other drug.

Without any legislative hearing and little controversy at the time, Congress in the 1986 law created the first mandatory minimum prison sentences for traffickers in different types of narcotics. For every drug except crack, the amount required to subject a person to the mandatory minimum appeared to approximate the quantity that a mid-level dealer might have in his possession for resale and was far above the amount someone would normally obtain for personal use.

For crack, however, the trigger was set much lower. And so there is a 100-to-1 differential between what subjects a powder cocaine dealer versus a crack cocaine dealer to a mandatory minimum stay in federal prison. Trafficking in 500 grams of powder -- which can yield 10,000 or more "lines," or doses -- draws the same five-year sentence as trafficking in five grams of crack, which yields no more than 50 "hits" off a pipe. Trafficking in 5,000 grams (or 11 pounds) of powder or 50 grams of crack triggers yields an identical a 10-year mandatory minimum.

The disparity was motivated partly by crack's perceived role at the time in spawning particularly violent crime and partly by the nature of the drug's distribution: Generally street dealers, not wholesaler "kingpins," put cocaine, baking powder and water in a microwave oven to create crack rocks for retail sale.

The 100-to-1 differential has contributed to the incarceration of huge numbers of African-Americans, who commit more than 80 percent of crack crimes. The average sentence for someone convicted of a crack crime in fiscal 2004 was 118 months, 38 months longer than for a cocaine crime and 26 months longer than for a meth crime.

The differential was determined not by any objective determinations of crack's more serious impact on society, said law professor David Alan Sklansky of the University of California at Berkeley, but instead was the result of a drive among lawmakers to come up with the toughest possible response. The differential "was driven by this hysteria about crack cocaine and by a lack of concern about who would be receiving these sentences," Sklansky said. "That lack of concern was related to the fact that everybody understood that crack dealers were black men."

That view is echoed by Eleanor Holmes Norton, Washington's non-voting Democratic delegate in the House: "Nobody in the African- American community will think it's not racially connected," she says of the differential. "It has to do with being unsympathetic towards drug dealers in the ghetto."

Those sentiments hardly surfaced in the congressional debate. In fact, such influential black lawmakers as Democrat Charles B. Rangel of New York, who at the time chaired a House Select Committee on Narcotics Abuse, initially supported the differential as a way to curb what that they viewed as a dangerous and potent drug devastating their constituents.

In 1988, Congress went on to create the first -- and still only -- mandatory minimum federal sentence for simple possession of a drug: Conviction for holding five grams of crack (three grams, if it's a second offense) draws a required five-year term. Simple possession of any amount of cocaine, by contrast, is a misdemeanor punishable by a year in jail.

Crack possession is rarely prosecuted on its own and accounts for less than 1 percent of crack offenders sentenced in federal court. But former federal prosecutors say that having the option to prosecute such an offense can provide them leverage in obtaining plea agreements.

Targeting the Labs

While lawmakers of today describe meth as a scourge as severe as crack, if not worse, there has been no concerted legislative effort to create a mandatory minimum sentence for its possession. And this winter, congressional negotiators rejected an effort to make the mandatory minimum sentence for meth traffickers even stiffer than for crack traffickers -- at least five years for peddling as few as three grams, and 10 years for selling as few as 30 grams.

Who Takes Speed

With almost no notice, Congress, in the omnibus appropriations package of 1998, lowered the drug volume thresholds for applying the mandatory minimums to meth dealers to be the same as those for crack dealers. But the law continues to treat the two drugs unequally in this sense: Measure for measure, speed provides at least three times - -- and perhaps 10 times as many "hits" as crack.

While the negotiators rebuffed proposals to make the sentences for meth traffickers the stiffest in the federal system, they did include some anti-meth measures in the extension of the 2001 law known as the Patriot Act that provides law enforcement with particularly broad powers to combat terrorism. Principally, the language focused on limiting backyard "mom and pop" meth production.

The DEA estimates the operators of such small-time meth labs produce about one-fifth of the drug distributed in the United States. But they are a disproportionately large concern to rural law enforcement agents because the highly flammable toxic stews used to make the drug can injure innocent bystanders and put police and firefighters at severe health risk.

Recipes for meth are readily available on the Internet, and the required equipment -- coffee filters, a pressure cooker and gas cans - -- can be purchased at the hardware store for about $50. The key ingredient is pseudoephedrine, which is a principal ingredient of many cough and allergy medicines, such as Sudafed, on the shelves of pharmacies and convenience stores. The new law seeks to limit the supply of pseudoephedrine available to meth makers by limiting consumer purchases of medicines containing that chemical and requiring sales of those medicines from behind the counter as a means of curbing theft.

To address international production, the law authorizes funds to halt speed production in Mexico and requires major exporters and importers of drugs containing pseudoephedrine report their transactions. The rationale for focusing the campaign against meth on its ingredients is simple: It's much easier to enlist the corporate manufacturers and retailers of its precursor chemicals than to shut down the thousands of heroin poppy and coca fields spread all over the world.

Beyond Mandatory Minimums

In the two decades since the crack epidemic peaked, much has changed in Congress' view of how best to fight drugs and punish those at the bottom of the supply chain.

In 1986, mandatory minimums and the entire federal sentencing guideline system were new innovations. "It was still a moment in time that sentences were still relatively low and there was a na??ve belief that severe sentences could be the solution to this problem," said Douglas Berman, a criminal law professor at Ohio State University. "It's a radically different historical moment. We're at a time that we've got a greater realization that severe sentences cannot alone be the answer."

Souder says this year's anti-meth law reflects that lesson. "We're not abandoning possession, but we're being more sophisticated about the networks," he said. "Ultimately, we understand if we're going to beat meth, it's going to be international, it's got to be along the borders, it's got to be at the distribution systems. As long as they're there, you will have possession."

With the exception of child sex crimes, there is little enthusiasm in Congress for writing new mandatory minimum sentences. This winter, for example, the chairman of the House Judiciary Committee, Republican F. James Sensenbrenner Jr. of Wisconsin, stripped a collection of proposed mandatory minimum sentences from legislation aimed at curbing both street gangs and violence against judges. He did so, he said, to ease the bill's passage.

Rather than toughening punishment, Baucus says, "people are more concerned about prevention and rehabilitation and getting the bad actors." And such a sentiment comes not only from Democrats. "My focus has not been on punishing users," says Kennedy, who is the GOP candidate for the Senate in Minnesota this year. "I'm focused on those who are preying on those who may ultimately become meth users."

Souder, too, concluded that securing the new restrictions on pseudoephedrine was more important in the fight against meth than toughening the sentencing of the dealers -- especially given the resistance from pharmaceutical companies and retailers to the notion of restricting access to cough syrup. In the end, Souder urged Sensenbrenner to drop the mandatory minimums in a bid to boost support for the restrictions on the medicines. "We decided moving ahead in a bipartisan way was more important than arguing over the minimums," he said. "For some Democrats, it was a non-starter. It was simply not the most important thing we wanted to do."

The broader political context of the fight against crime has also changed significantly in the last two decades. Polling during the 1986 and 1988 campaigns found that combating drugs was the nation's top priority. President Ronald Reagan and Democrats in Congress competed to come up with the most aggressive solutions.

"The Democrats were finally figuring out they couldn't afford to be portrayed as soft on crime, and Republicans figured out running on crime and justice issues served their interests very well," Berman said.

Now, crime and drugs have clearly become second-tier issues; in their nationwide polls during the past six weeks that sought to gauge which issues will matter the most to voters this fall, neither CNN, CBS, Harris, Fox or NBC even suggested those issues as an option. Instead, they have been supplanted as the principal political litmus test for judging lawmakers' toughness. "Terrorism has sort of superseded it," Hatch said. "People are more concerned about terrorism now."

Ships in the Night

Another reason for the emerging double standard is that few lawmakers notice it. Those in Congress most engaged in the fight against meth are almost completely different from the set of lawmakers most concerned about crack. In general, members of each group focus on a drug problem that affects their own constituents and ignore the one that doesn't.

Only five of the 44 members of the Congressional Black Caucus, which has taken the unofficial lead at the Capitol on the crack issue, also belong to the Meth Caucus. Several members of the Black Caucus describe themselves as not paying any attention to the meth issue.

Cummings stands out as an exception. But his interest has little to do with parochial concerns. Instead, it has grown from his assignment as the top Democrat on a House Government Reform subcommittee assigned to oversee federal criminal justice and drug policy. Cummings has accompanied Souder, the panel's chairman, to field hearings on meth in rural Ohio, Kentucky and Indiana.

With the area of intersection so small, few lawmakers are working to make federal policy treat crimes connected to the two drugs more consistently. That could most readily be accomplished by eliminating the unique mandatory minimum for crack possession and by increasing the quantity of crack required to draw a mandatory minimum for trafficking, as the U.S. Sentencing Commission recommended four years ago.

A bill by Roscoe G. Bartlett, a Maryland Republican, to narrow the sentencing differential has drawn just three cosponsors. There is no companion bill in the Senate, where Hatch last proposed similar legislation in 2001. Making punishments for crack crimes closer to that of other drug crimes is a matter of "decency and fairness," Hatch says, but there is minimal interest in the idea among his colleagues.

"Political realities make it too dangerous," Berman said, because advocates of lessening the crack penalties would inevitably be portrayed by their opponents as soft on crime. "Nobody sees the political benefits of this. It's very hard for anyone to see the political pros of this and extraordinarily easy to see the cons."

With the law to limit access to meth ingredients on the books, members of the House Meth Caucus and the Senate's leading voices against the drug, Democrat Dianne Feinstein of California and Republican Jim Talent of Missouri, say their top priority is providing more money for treatment.

Law-and-order Republicans' experience with meth may lead them to rethink harsh prison sentences for drug crimes across the board. Or they could buttress their contention that race plays no role in their policy making by instituting mandatory minimums that sweep in as many users and low-level dealers of meth as of crack.

Even supporters of this year's law acknowledge that, while putting cold medicines behind the counter may help curb local meth labs, it's unlikely to significantly reduce meth use.

If the focus on interdiction and treatment fails, Congress could turn to tougher criminal sentences as a way to show their constituents they are doing something about the problem. Or it might focus its ire on Mexico, the main location of the "super labs" that will supply almost all meth to the United States even if the mom and pop labs shut down.

In the coming years, said Daniel Richman, a Fordham University law professor and former federal prosecutor, "I could imagine a legislative response to meth that wouldn't look much different than the legislative response to crack."

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