There are long-standing racial disparities in the sanctions imposed on drug offenders in the United States. However, the policies and practices pursued under the war on drugs of the 1980s greatly exacerbated these disparities and the punitiveness of drug sanctions generally. These racial disparities do not appear to be attributable to racial differences in the prevalence or frequency of drug use or involvement in drug distribution. Instead, racial disparities appear to be best explained by racial differences in the nature of drug use and drug distribution, place-based differences in drug enforcement that are correlated with race, and racial bias in the administration of drug sanctioning. There is a growing movement to change drug sentencing, and drug enforcement more generally, to reduce their punitiveness and racial disparities in drug sanctioning.
Drug Sanctions in the United States
Drug sanctioning in the United States is currently guided by policies and practices adopted under the war on drugs of the 1980s. The architects of the war on drugs asserted that implementing tough, more punitive policies toward drug law violations would suppress drug use, drug distribution, and drug-related crime. Specifically, proponents of the war on drugs persuaded jurisdictions across the United States to increase the number of drug arrests, even for low-level offenses (e.g., possession of small amounts of illicit drugs), make drug arrests and prosecutions easier by relaxing rules concerning search and seizure, and increase the punitiveness of sanctions imposed on convicted drug offenders (e.g., more prison sentences, longer prison sentences). In fact, long mandatory prison sentences have been one of the hallmarks of the war on drugs.
The clearest manifestations of this shift in drug policy are the number of offenders arrested for drug crimes and serving prison sentences for drug crimes, both of which increased sharply after the launch of the war on drugs in the mid-1980s. For instance, in 1980, prior to the war on drugs, there were approximately 581,000 drug arrests reported to the Federal Bureau of Investigation. Yet, in 1989, that number rose to 1,362,000 and continued to grow in the 1990s and into the new millennium. Furthermore, large shares of these arrests were for possession offenses and offenses involving marijuana, which illustrates that many of those arrested were low-level drug offenders. This increase in drug arrests was achieved by law enforcement adopting a set of drug control tactics aimed at making an abundance of low-level drug arrests, such as place-based drug crackdowns, place-based street sweeps, buy-busts, reverse stings, controlled buys, and the use of drug courier profiles.
Not only did the number of drug offenders arrested increase, but also those arrested were more likely to be sentenced to prison—some to long mandatory terms of imprisonment. For example, for every 100 drug arrests, there were two state prison commitments for a drug offense in 1980, 10 state prison commitments in 1990, and nine state prison commitments in 2010. Similarly, the average time served for state-level drug offenses increased from 1.6 years in 1980 to 1.9 years in 2010. The federal system exhibited similar increases in drug sentencing punitiveness.
The end result of this increased punitiveness was a marked increase in number and proportion of inmates serving time for drug offenses. The proportion of prison inmates serving time in state prisons for a drug offense went from 8% in 1980 to more than 20% in the 1990s, and roughly 17% in 2016—and as of 2016, approximately 50% of inmates in federal correctional facilities are currently serving time due to a drug offense. Perhaps more telling is that state incarceration rates for drug offenses went from 15 per 100,000 in 1980 to more than 150 by 2000 and just below 150 in 2010. In short, drug enforcement and sanctioning practices implemented as part of the war on drugs dramatically increased the punitiveness of drug sanctions, lead to a marked increase in the number of inmates serving time for a drug offense, and are a major contributor to the substantial rise in the U.S. prisoner population.
Ironically, while the number of drug arrests and drug prisoners was growing, drug use was generally declining. In fact, drug use had been declining even before the war on drugs was declared in the mid-1980s. For example, past month illicit drug use for those 12 and over dropped from 14% in 1979 to 12.1% in 1985. Drug use continued to drop after the war on drugs; by 1988, past month drug use was 7.7% of those 12 and over, 5.9% by 1993, before rebounding and then stabilizing at approximately 8.5%. Thus, while there was variation in the illicit drug use over time, the general trend in drug use was downward—even prior to the drug war. This finding suggests that changes in drug enforcement and drug sanctioning produced the growth in drug arrests and drug prisoners— not increases in the number of illicit drug users.
Racial Disparities in Drug Sanctions
The enhanced punitiveness of drug sanctioning has not affected all Americans equally. Politically and socially marginalized groups have been most affected, particularly African Americans. In fact, another hallmark of the war on drugs has been its legacy of exacerbating preexisting racial disparities. For instance, prior to the war on drugs, the drug arrest rate for African Americans was 3 times higher than that of Whites. Yet, at the height of the war on drugs (1989), this disparity in drug arrest rates rose to approximately 6 to 1 and subsequently stabilized at approximately 4 to 1.
In turn, the growth in racial disparities in drug arrests has produced differential effects on incarceration across racial groups. African Americans’ rates of imprisonment have been considerably higher than those of Whites, even prior to the previously discussed policy changes. In 1980, the imprisonment rate of African Americans was 6.5 times higher than that of Whites. By 1990, this ratio grew to 6.8 before declining to 6.3 in 2000. The growth in racial disparities in imprisonment rates that occurred in the 1980s and 1990s is directly attributable to the differential effect of drug policy changes by race. As evidence, in 1999, Alfred Blumstein and Allen Beck estimated that 17% of the total growth in the number of Whites imprisoned in the United States between 1980 and 1996 was attributable to changes in drug sanctioning. By contrast, 36% of the total growth in the number of African American prisoners was the result of such changes. This finding illustrates that the increasing punitiveness of drug sanctions affected all drug offenders, yet African Americans were most affected by the enhanced punitiveness of drug sanctions.
Explaining Racial Disparities in Drug Sanctions
The available evidence indicates that racial disparities in drug sanctions are not attributable to racial differences in the extent of drug use or involvement in drug distribution (i.e., drug sales, drug manufacturing). Surveys measuring drug use reveal that White youth are more likely to use illicit drugs, and White youth use illicit drugs more frequently than Blacks youth. Among adults, Blacks are more likely than Whites to use marijuana but not other drugs. Race differences in drug use generally have been converged over time. Survey data assessing involvement in drug distribution are relatively rare. Yet, here again, the available evidence indicates that Whites are more likely to be involved in this kind of drug offending than are Blacks.
Three factors appear to be most salient in explaining racial disparities in drug sanctions: (1) racial differences in the nature of drug offending, (2) place-based differences in drug enforcement, and (3) racial bias in drug policy making and law enforcement. In regard to racial differences in the nature of drug offending, Blacks are more likely to use and sell drugs in public places and sell drugs to strangers than are Whites. These differences in the nature of drug offending are products of racial inequality; Blacks are more likely to live in urban, high-poverty areas with limited access to private space, leading to illicit drug activity taking place in public places, which in turn leads to violent disputes among drug sellers over access to these public spaces. Furthermore, public, open-air drug markets are often associated with other kinds of crime such as robbery, prostitution, and general disorder. By contrast, Whites’ more privileged social status increases access to private spaces, and as a result, Whites’ illicit drug activities are more likely to take place behind closed doors and in the company of acquaintances. The end result is that Whites’ drug activities are less vulnerable to police surveillance and apprehension.
Common drug enforcement tactics focus on public drug activities and drug activity associated with violence. Police drug enforcement strategies, such as street sweeps, buy-busts, drug market crackdowns, and drug courier profiling, often combined with consent searches, are most often employed in minority neighborhoods or places minorities frequent (e.g., bus and train stations). The greater utilization of such police tactics in minority neighborhoods leads to White and Black drug offenders having markedly different likelihoods of apprehension.
Racial bias in policy making and the administration of drug sanctions also contribute to racial disparities in drug sanctions. Some of the policies adopted as part of the war on drugs were not race neutral. Most notoriously, federal sentencing laws punished offenses involving crack cocaine, a drug associated with Black drug offenders, more harshly than offenses involving powder cocaine, a drug associated with White drug offenders. The policy makers responsible for these laws note that crack cocaine was associated with violent crime, disorder, and high addiction risks. Critics of these laws counter that the punishment gap between crack and powder cocaine offenses was too large to be justified by these factors.
In regard to the administration of sanctions for drug offenses, the relatively few empirical studies examining racial disparities in drug arrest find that these disparities cannot be completely explained by racial differences in drug offending. For example, in a 2015 study, Ojmarrh Mitchell and Michael Caudy found that there are large racial differences in the likelihood of drug arrest for African American and White drug offenders. After statistically controlling for racial differences in prior drug use, drug sales, nondrug offending, and living in high-crime neighborhoods, these racial disparities are still large, with African American drug offenders being more likely to be arrested for a drug offense than White drug offenders. Likewise, another study by these authors found that Black drug dealers had odds of arrest for drug distribution offense 150% higher than those of White drug dealers, after statistically adjusting for racial differences in drug and nondrug offending. These findings comport with the work of Katherine Beckett and colleagues who studied racial disparities in drug arrests in Seattle, WA, in 2005–2006. These authors found that Black drug offenders were much more likely to be arrested for drug offenses than White drug offenders.
In contrast to the relatively small body of research assessing racial disparities in drug arrest, there is a sizable body of sentencing research that demonstrates that African Americans convicted of drug offenses are more likely to receive a harsh sentence than similarly situated Whites. In fact, in 2005, Mitchell found that racial disparities in sentencing for drug offenses are larger than those for either property or violent offenses. According to this study’s estimate, based on 19 independent sentencing studies, the odds of receiving a punitive sentence were 40% higher for African American drug offenders than for White drug offenders.
Taken together, these studies indicate that there are sizable racial disparities in drug arrest and sentences for drug offenses. These disparities can be partially explained by racial differences in drug offending, particularly the nature of drug offending. Yet, even after taking these differences into account, there remain significant racial disparities—some of which appear to be attributable to racial bias.
Changing Paradigms
While the policies implemented under the war on drugs still dominate drug policy in most jurisdictions, there is a growing movement to abandon these policies in favor of less punitive policies and tactics. Several jurisdictions have departed from the war on drug’s emphasis on low-level drug offenses by decriminalizing marijuana (i.e., fines instead of jail time) or making marijuana offenses the lowest priority of law enforcement. More prominently, Colorado, Washington, Alaska, Oregon, and Washington, DC, have legalized personal use amounts of marijuana via voter initiatives. Still other jurisdictions have mandated treatment instead of incarceration for drug offenders with limited criminal histories. Notably, racial disparities in drug sanctioning have been a key issue in nearly all of these reforms. These policy changes seem to a harbinger of larger changes in drug policies. It is difficult at this point in time to predict the exact nature of these policy changes; yet, it seems likely that the new paradigm in drug policy will focus less on punitive sanctions, focus more on drug treatment, and promote greater racial fairness.
References:
- Alexander, M. (2010). The new Jim Crow: Mass incarceration in the age of colorblindness. New York, NY: The New Press.
- Beckett, K., Nyrop, K., & Pfingst, L. (2006). Race, drugs, and policing: Understanding disparities in drug delivery arrests. Criminology, 44(1), 105–137.
- Beckett, K., Nyrop, K., Pfingst, L., & Bowen, M. (2005). Drug use, drug possession arrests, and the question of race: Lessons from Seattle. Social Problems, 52(3), 419–441.
- Mitchell, O. (2005). A meta-analysis of race and sentencing research: Explaining the inconsistencies. Journal of Quantitative Criminology, 21(4), 439–466. Retrieved from https://doi.org/10.1007/ s10940-005-7362-7
- Mitchell, O., & Caudy, M. (2015). Examining racial disparities in drug arrests. Justice Quarterly, 32(2), 288–313. Retrieved from https://doi.org/10.1080/07418825.2012.761721
- National Research Council. (2014). The growth of incarceration in the United States: Exploring causes and consequences. Washington, DC: The National Academies Press.
- Reuter, P. (2013). Why has US drug policy changed so little over 30 years? In M. Tonry (Ed.), Crime and justice (Vol. 42, pp. 75–140). Chicago, IL: University of Chicago.