Decades of Disparity, Soaring Costs, Take Toll In War On Drugs

by Hugh Hamilton
March 15th, 2009

If Blacks and whites in America use illegal drugs at roughly comparable rates, then why are Blacks arrested at rates several times higher than whites for the same drug-related offenses?

I put the question recently to Jamie Fellner, senior counsel at the U.S. Program of Human Rights Watch. Fellner is also author of a new report titled, Decades of Disparity: Drug Arrests and Race in the United States. Here’s what she said:

“From its very beginning, the U.S. war on drugs has been colored by race; race is   the lens through which drug problems are defined and through which the responses are chosen. I do not believe that having mandatory sentences would have been implemented or maintained to this day if it were whites being sent to prison at the rates that Blacks are being sent to prison. There would have been huge pressure for change. But since it’s Blacks who are disproportionately bearing the burden of law enforcement and mandatory minimum sentences, there’s been less political pressure.”

Using data obtained from the FBI, Fellner’s research revealed that for nearly three decades (1980 to 2007 – the last year for which complete data were available), adult African Americans were arrested on drug charges at rates five times as high as those for whites. An analysis of state-by-state data showed that the disparity was even greater in some jurisdictions: in Minnesota, for example, Blacks were arrested at rates 11 times higher than whites for drug offenses in 2006. As Fellner explained, “Jim Crow may be dead, but the drug war has never been color-blind. Although whites and Blacks use and sell drugs at comparable rates, the heavy hand of the law is more likely to fall on Black shoulders.”

Noting that these racial disparities reflect a history of complex political, criminal-justice and socio-economic dynamics, Fellner argued that the disproportionate burden imposed on Black families and neighborhoods has exacted a social, economic and political toll on them that is “as incalculable as it is unjust.” For as long as urban communities of color remain the central focus of drug enforcement efforts, while suburban whites in gated communities get a free pass, for so long will these unwarranted disparities persist.

But Fellner also cautioned that while reducing the disparities is imperative, it should not be accomplished simply by increasing the rate of white drug arrests. Instead, she calls for a “rethinking of the drug-war paradigm,” with more emphasis on prevention and substance abuse treatment, and less on drug enforcement. She favors the use of community-based sanctions for drug offenses and the elimination of mandatory minimum sentences for them.

Alternatives to Incarceration

Legal scholars, substance-abuse experts and social-justice advocates have long inveighed   against mandatory minimum sentences for first-time and low-level drug offenders. Their arguments may be as varied as the disciplines they represent, but they come to rest ultimately at the same conclusion: that mandatory sentences are ineffective and inappropriate as a matter of public policy. Some, like clinical psychologist Dr. Bruce Levine, even point to what they see as a double standard in the way we treat consumers of prescription versus street drugs. According to Levine:

            “When we recognize that psychotropic prescription drugs are chemically similar to illegal psychotropic drugs, and that all these substances are used for similar purposes, we see two injustices. First, we see the classification of millions of Americans as criminals for using certain drugs, while millions of others, using             essentially similar drugs for similar purposes, are seen as patients. Second, we see a denial of those societal realities that compel increasing numbers of Americans to use psychotropic drugs.”

The Drug Policy Alliance Network, which advocates for policy alternatives based on science, health and human-rights standards, is equally blunt in maintaining that “mandatory minimums have worsened racial and gender disparities, contributed greatly to prison overcrowding, and is both costly and unjust.”

Just how costly was underscored in a new study released this month by the Pew Center on the States, which reported that the Corrections industry last year accounted for the fastest expanding major segment of state budgets; over the past two decades, its growth as a share of state expenditures has been second only to Medicaid. According to the study, state corrections costs now exceed $50 billion annually and consume one of every 15 discretionary dollars.

Over the past three decades, states have been putting so many people behind bars that last year, one of every 100 adults in America was in prison or jail. But with far less notice, as the study reports, the number of people on probation or parole has also skyrocketed -- to more than 5 million. As the authors note, “this means that 1 in every 45 adults in the United States is now under criminal supervision in the community, and combined with those in prison or jail, a stunning 1 in every 31 adults is under some form of correctional control. The rates are drastically elevated for men (1 in 18) and Blacks (1 in 11).”

Here again, Blacks bear a disproportionate burden: the Pew study (One in 31: The Long Reach of American Corrections), found that Black adults  were four times as likely as whites to be under correctional control; one in every 11 Black adults – 9.2 percent – was under correctional supervision at the end of 2007.

But the sheer cost of maintaining the world’s largest prison population and its ancillary correctional enterprises is beginning to take a toll on the states. Indeed, there is some evidence that the current economic downturn may yet prove to be the proverbial “ill wind” that blows some good for those who have long campaigned in favor of a more humane approach to dealing with low-level drug offenders – many of whom would be better served by treatment rather than incarceration. Nationwide, drug offenders account for 20 percent of all prison inmates (not counting those in jails).

Several states are already struggling with the oppressive costs of mass incarceration. In California, which maintains the country’s largest corrections system, federal judges ruled last month that conditions in the state’s 33 adult jails had become so overcrowded that they violate the constitutional rights of inmates, subjecting them to cruel and unusual  punishment that is causing at least one death a month. To ensure minimal health and safety standards are met, the judges ruled that as many as one-third of the state’s inmates may have to be set free on early release or parole by 2012. There is just not enough money to build more prisons.

Moreover, as Guy Adams reported for the U.K. Independent, “the prison crisis is not limited to California. In Des Moines, Iowa, county officials plan to start charging prisoners for toilet paper. Michigan will release 4,000 prisoners who have served their minimum sentences. New Jersey and Vermont are putting drug-addicted offenders into treatment rather than prison. Louisiana, which has one of the highest incarceration rates in the developed world, is hoping to reform a system that spends more on prisons than on higher education.”

In a pithy editorial conclusion to its report, the Independent noted wryly that “these measures are controversial in a nation that views prison as a place for retribution rather than rehabilitation.”  

The current economic crisis is forcing the United States to revisit that mindset. Maybe some small good may yet result from the ill wind of this recession, after all.