Disparate Justice Imperils a Community

By Marc Mauer
Legal Times
October 16, 1995

A new report just released by The Sentencing Project reveals shocking racial disparities in the criminal justice system. Young Black Americans and the Criminal Justice System: Five Years Later is a follow-up to our 1990 study that found that one in four African-American males in the age group 20-29 was under some form of criminal justice supervision-either in prison or jail, or on probation or parole.

Our new study finds that nearly one in three (32.2 percent) young black men is under criminal justice supervision on any given day. In addition, we have also documented that black women have experienced the greatest increase in criminal justice control of all demographic groups, with their rate of criminal justice supervision rising by 78 percent in the five years from 1989 to 1994.

These dramatic rates of involvement in the criminal justice system are already having a substantial impact on the life prospects of black males in the criminal justice system. Beyond that, we can only speculate on the long-term impact this may have on the African-American community generally. For the next generation of children, though, the vision of massive numbers of black males passing through the prison system clearly cannot be one that inspires a sense of hope for the future.

While current political rhetoric might suggest that rising violent crime rates among blacks are responsible for this situation, in fact the data provide little support for this. Although African-American arrest rates for violent crimes_45 percent of all arrests_are disproportionate to their share of the population, this proportion has not changed substantially for 20 years.

If we look instead at drug policies, we find a more significant explanation for the rise in criminal justice populations. We see this taking place through two overlapping trends: first, a dramatic rise in drug arrests, convictions, and incarcerations, and second, a disproportionate impact of drug policies on African-Americans.

Looking at the 10-year period 1983-1993, the number of incarcerated drug offenders nationally increased by 510 percent, rising from 57,000 to 353,000. Today, about one in every four inmates is either awaiting trial or serving time for a drug offense. At the same time, the black proportion of drug arrests has increased substantially, rising from 24 percent in 1980 to 39 percent by 1993.

These disparities become more pronounced if we focus only on drug possession, not trafficking. All things being equal, drug possession arrests should be somewhat correlated with drug usage among the population. Although national survey data have some limitations, the best indicators are that African-Americans constitute about 13 percent of monthly drug users, just above their 12 percent share of the population. Yet African-Americans make up 35 percent of arrests for drug possession, 55 percent of convictions, and 74 percent of prison sentences. Blacks and Hispanics combined now constitute nearly 90 percent of all offenders sentenced to state prison for drug offenses.

How do these disparities arise? Much evidence in recent years points to decision making by both policymakers and practitioners. This begins with federal priorities that put nearly two-thirds of anti-drug funds into law enforcement and only one-third into prevention and treatment. It then moves to police practices that target inner-city communities for intensive drug enforcement and finally to prosecutorial and sentencing policies that have been found to affect African-Americans disproportionately.

Does this mean that the criminal justice system is fraught with racism? While the Mark Fuhrmans of the system demonstrate racism at its worst, much of these disparities result from more subtle decision making, often representing a combination of race and class effects. Again, this is readily apparent in regard to drug policy. How many middle-class parents, for example, would opt to turn over their drug-abusing teenager to the local prison system rather than avail themselves of a high-quality treatment program? Yet when it comes to low income communities, where blacks and Hispanics are disproportionately represented, national policies emphasize a law enforcement response as the primary means of problem-solving.

These problems have been exacerbated at the national level in recent years. Proposals adopted by or being considered by Congress, such as "three strikes and you're out" and "truth in sentencing," will not only increase prison populations but will quite likely result in increasingly disproportionate racial impacts.

Much of the necessary response for confronting these enormous disparities lies, of course, in addressing long-term social and economic issues. The combination of inner-city economic dislocation, the allure of the drug trade, and the ready availability of guns have taken a great toll on many communities. But there are also a variety of policy and programmatic options to address these problems that could be enacted much more readily. These include:

• Revise national drug spending priorities. Since the mid-1980s, two-thirds of federal anti-drug funding has been devoted to law enforcement and just one-third to prevention and treatment. Funding requests by the Clinton administration to increase treatment in the criminal justice system have been largely denied by Congress. This has taken place despite research by RAND and others documenting that treatment is seven times more cost-effective than supply control programs in reducing cocaine consumption. Failure to increase treatment access for low-income persons ensures that we will maintain a two-tiered system of justice_treatment for the wealthy, incarceration for the poor.

• Eliminate mandatory sentencing and other sentencing policies that have had a disproportionate impact on women and minorities. The injustices caused by mandatory sentencing and its failure to have an impact on crime have been well- documented. In its recent report, the U.S. Sentencing Commission clearly articulated the racial disparities created by the crack/cocaine powder sentencing distinctions. (Unfortunately, that report is meeting stiff opposition from the Clinton administration and Congress.) Many of the problems identified with mandatory sentencing, though, apply equally well to the federal sentencing guidelines and other overly restrictive sentencing policies being adopted in various jurisdictions.

• Sentencing guidelines that are rigidly "neutral," for example, have often worked to the disadvantage of women and minorities. Factors that most people would acknowledge should be considered relevant at sentencing_child care responsibilities, histories of abuse and dependency_are often not considered to be appropriate for consideration, all in the name of reducing sentencing disparity. While the reduction of disparity is a laudable goal, so too is an individualized approach to sentencing that incorporates an analysis of offender responsibility and appropriate sentencing options.

• Adopt legislative racial/ ethnic impact statements. As has been done with fiscal impact statements in recent years, legislative bodies should be required to prepare racial/ethnic impact statements for pending sentencing policy legislation in order to consider any adverse or unanticipated consequences on minorities. If a proposed policy were shown to have such an impact, policymakers would be free to decide if the impact was warranted or if an alternative policy might accomplish the same objective without creating such a disparity. Had this been done prior to the adoption of mandatory penalties for crack cocaine, perhaps Congress would not have enacted such sweeping policies.

• Promote a renewed dialogue on drug policy. Since the heated drug policy debates of the 1980s, there has been little serious discussion regarding the optimal mix of approaches for addressing substance abuse. This is evidenced by the low priority given by the Justice Department to its 1994 report on mandatory sentencing and the disciplining of former Surgeon General Joycelyn Elders for advocating a discussion of drug policy. Given the tragic consequences of current policies, a renewed bipartisan debate is critical if we are to develop a national consensus on a more effective strategy.

(Marc Mauer is assistant director of The Sentencing Project in Washington, D.C., and the author of numerous publications on criminal justice policy issues.)

(Legal Times is an affiliate publication of Court TV.)
Copyright 1995, American Lawyer Media.