The Supreme Court decided on Monday that federal sentencing guidelines, a kind of back seat judging considered by many to be racist, should be treated as “advisory” and not at all mandatory. Justices Alito and Thomas, to no one’s great surprise, were the only dissenters.

One of a number of issues with mandatory guidelines is that they tend to punish African Americans more harshly than other Americans. While crack and powder cocaine have, as Justice Ginsburg wrote for the majority, “the same physiological and psychotropic effects,” the guidelines require 100 times the possession of powder cocaine for the same minimum prison term required for the possession of crack cocaine.

And because crack cocaine tends to disproportionately affect African American communities, the guidelines can be seen as a way of targeting African Americans without having to admit it.

New York Times:

The disparities between prison terms for dealing in crack and for peddling powdered cocaine have for years angered some lawyers and civil rights advocates, who have argued that the crack-cocaine penalties unfairly punish black defendants more severely than they do whites. Crack is much more common in poor urban areas than the powder favored by white users, and black people make up 80 percent of those sentenced for crack-dealing.

Two decades ago, when the effects of the two forms of cocaine were less well understood, there was a collective assumption that crack cocaine was far deadlier, although subsequent studies have shown that they “have the same physiological and psychotropic effects,” as Justice Ginsburg put it.

But the United States Sentencing Commission, created in the mid-1980’s to recommend appropriate federal prison terms and lessen wildly disparate sentences in cases of similar circumstances, provided punishments for crack cocaine that were far more severe than those associated with the powder — the same five-year minimum for possessing 5 grams of crack as for 100 times as much powdered cocaine, for instance.

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