Cocaine, Race, and Equal Protection

Abstract

Most agree that equal protection should guard against laws that disproportionately burden members of a disempowered minority group because of majority prejudice. In this essay, Professor Sklansky argues that equal protection doctrine in its current form fails to achieve this objective. Professor Sklansky reaches this conclusion through an examination of the manner in which courts have upheld the constitutionality of the mandatory federal sentences for trafficking in crack cocaine. Those sentences are far harsher than the penalties federal law prescribes for trafficking in powder cocaine, the precursor of crack cocaine. Professor Sklansky argues that current equal protection doctrine leads courts to ignore troubling evidence that the crack cocaine sentences are so severe at least in part because, unlike the powder cocaine penalties, they are imposed almost exclusively on black defendants. He suggests that an excessive insistence on doctrinal consistency and simplicity has blinded equal protection law to important issues of racial injustice, including the danger that the crack cocaine penalties are the product of unconscious racism. In order to foster a gradual, case-by-case improvement of equal protection law, Professor Sklansky calls for greater toleration of doctrinal disorder.

Cite this work

No public copy is stored for this record, so only the metadata is cited.

Stored only when both papers are in the corpus — 89 citations exist upstream.