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In the US war on drugs, “equal justice under law” rings hollow

Our massive criminal punishment system is infected at all points by racial injustice. And the ‘war on drugs’ has only accelerated mass incarceration.

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Flickr/Dennis Grice. Some rights reserved. Flickr/Dennis Grice. Some rights reserved.It is disgraceful enough that America – a supposed beacon of liberty – is by far the world’s largest incarcerator.  But adding outrage to injury, our massive criminal punishment system is infected at all points by racial injustice.  The difference by which our country treats people of colour in the enforcement of our criminal laws renders the ring of the maxim “equal justice under law” – the inscription above the entrance to the United States Supreme Court – hollow, leaving it at best a lofty aspiration that remains elusive throughout the streets and courts of this country. 

It is no surprise, in many ways, as such racial unfairness is the latest stop on our long road of racist policies, from slavery to forced labour to Jim Crow laws.  But like those dark chapters in our history, we will look back with the same shame at mass incarceration.

The era of mass imprisonment, during which time the US prison population has grown over 11 times faster than the general population, has hurt people of all races and ethnicities, almost all poor or working class.  But the harm it has caused communities of colour has been wildly disproportionate.  Major drivers of the increase in incarceration – including the bitterly fought ‘war on drugs’ and the aggressive expansion of mandatory minimum sentences, both of which have resulted in an astounding 790% increase in the federal prison population over the last two decades – have smashed harder through the Black community than any other.

Indeed, 60% of the people in our prisons are now racial and ethnic minorities.  Despite national surveys demonstrating that Blacks use and traffic in drugs at equal or lower levels than whites, Blacks are ten times more likely to spend time in prison for drug offences. 

Just think, America’s white incarceration rate is almost unparalleled globally, standing between two and a half to seven times higher than other western countries, with one in 17 white men going to prison.  Yet the Black rate is over five times higher, with one in three Black men ending up behind bars.  Similarly, while America’s incarceration of 33% of all women and girls behind bars worldwide ensnares white women at a disturbingly high rate of one in 111, the net cast for Black women is far wider, with one in 18 incarcerated.

We will look back with  shame at mass incarceration.

Racial disparities result from disparate treatment of Blacks at every stage of the criminal justice system. But let us take as examples just two critical junctures of the criminal law system, one at the front-end and one at the back-end: police encounters and sentencing. Both of these pivotal moments in the criminal enforcement process are defined by racial unfairness.

Turning first to policing. Anecdotally, in the past few years we have seen on video again and again police officers callously disregard life – Black life, that is.  Time and again, law enforcement has shot and killed often unarmed Black people across the country under a range of circumstances – reaching for a driver’s licence upon a police officer’s order, shifting around in a wheelchair, angling away from the police while walking on a roadway, running away from an officer with back turned, playing with a toy gun at 12 years old.  We have also seen a Black man choked to death because he was not immediately compliant when being arrested for selling untaxed cigarettes, and another Black young man killed during a “rough ride” in a police van. 

Meanwhile, when the police have dealt with armed white people who have killed multiple people in high-profile violent incidents, from a movie theatre in Colorado, to a church in South Carolina, to a shooting spree in Michigan, they have detained them alive.  It is as if the police are more likely to greet Black nonviolence with violence and white violence with nonviolence. 

The urgent yet decades-old problem of excessive police force towards Black people is part of a much larger and long-festering pattern of over-aggressive, biased policing and racial profiling in communities of colour.  For many years, police have focused their resources on minor and/or nonviolent offences, leading to high concentrations of unwarranted stops, searches, arrests and incarceration of Black people.

Indeed, when we look at available data on stops and frisks, and on arrests for low-level offences, it tells a familiar, tired, and painful story about racially biased policing.  It tells a story of millions of stops, many of which are in violation of our constitution, in cities around the country, mostly of innocent Blacks and Hispanics, far out of proportion to their population.  Everywhere such data is analysed, the single most important factor driving these discretionary decisions by police to use their authority to stop and detain people is the colour of a person’s skin.

Take New York City as an example.  Of the 4.4 million pedestrian stops made by the New York City Police Department from January 2004 through June 2012, 83% of the people stopped were African-American or Latino and only 10% were white.  In over nine out of ten stops, no further police action was taken, because the people stopped had done nothing wrong.  And yet New York is the rule, not the exception.  From Philadelphia to Newark, from Baltimore to Chicago, from Boston to Miami, over and over again we find the same patterns: the police make tens of thousands of stops every year; most people stopped are Black or Hispanic; Blacks and Hispanics are stopped far out of proportion to their percentage of the cities’ populations; most of the Blacks and Hispanics stopped are not arrested; and contraband is more likely to be found on whites than Blacks and Hispanics who are stopped. 

As in stops, so too in arrests.  In the ACLU’s 2013 national report on marijuana possession arrests, we documented that Blacks were four times more likely to be arrested than whites despite comparable usage rates.  Such disparities persisted, indeed often widened, across hundreds of counties throughout the country, regardless of demographics.  In the past year we have documented similar disparities in low-level arrests in Minneapolis and in cities across New Jersey.

These racially biased stops and arrests, which are not only often unlawful and perhaps the most glaring example of the increased criminalisation of America’s poor, lead to communities feeling distrust, anger, resentment, and fear of the police departments they are paying taxes to for protection and help.  This breakdown in relationships harms communities, the police, and public health and safety generally.  Such practices also result in the unnecessary entanglement of people of colour in the incarceration system, which reduce people’s earning capacity and civic participation, and lead to a number of other collateral consequences that reverberate long after arrest and far beyond prison bars.

Jumping from police contact to punishment, we find the same story of differential treatment by race.  Black and Latino offenders sentenced in state and federal courts face significantly greater odds of incarceration than similarly situated white offenders and receive longer sentences than their white counterparts in many jurisdictions.  Sentences imposed on Black males in the federal system are nearly 20% longer than those imposed on white males convicted of similar crimes with comparable criminal histories.  Blacks represent 12% of drug users, but 38% of those arrested for drug offences, and 59% of those in state prison for drug offences.  Such racial disparities increase with the severity of the sentence imposed.  The level of disproportionate representation of Blacks among prisoners who are serving life sentences without the possibility of parole (LWOP) is higher than that among parole-eligible prisoners serving life sentences. 

Although Blacks constitute only about 13% of the U.S. population, as of 2009, Blacks constituted 28.3% of all lifers and 56.4% of those serving LWOP, and 56.1% of those who received LWOP for offences committed as a juvenile. In the federal system, Blacks are 20 times more likely to be sentenced to LWOP for a nonviolent crime than whites.  As of 2012, the ACLU’s research shows that 65.4% of prisoners serving LWOP for nonviolent offences are Black. In some states, the racial disparities are even worse. In the federal system, 71% of the 1,230 LWOP prisoners are Black.  The racial disparity is even higher for juvenile offenders sentenced to LWOP.  Nationally, about 77% of juvenile offenders serving LWOP are Black and Latino, while Black youth are serving these sentences at a rate 10 times higher than white youth.

Many of these racial disparities in sentencing have resulted from theoretically ‘race neutral’ sentencing policies that have significant disparate racial effects, particularly in the cases of habitual offender laws, mandatory minimums, school zone drug enhancements, and federal laws adopted by Congress in 1986 and 1996 that at the time established far harsher sentences for possessing the same amount of crack cocaine as powder cocaine, two forms of the same drug. 

For example, someone convicted of an offence involving just five grams of crack cocaine was subject to the same five-year mandatory minimum federal prison sentence as someone convicted of an offence involving 500 grams of powder cocaine (for higher quantities of drugs, the mandatory minimums increased to ten years, twenty years, even life in prison).  The 100-to-1 ratio resulted in vast unwarranted racial disparities in the average length of sentences for comparable offences because the majority of people arrested for crack offences are Black.  By 2004, under the 100-to-1 disparity, Blacks served virtually as much time in prison for a nonviolent drug offence (58.7 months) as whites did for a violent offence (61.7 months).  In 2010, 85% of the 30,000 people sentenced for crack cocaine offences under the 100-to-1 regime were African-American.

The case of Douglas Dunkins is one example of the unfairness and harshness of our drug sentencing laws.  In 1992, at the age of 26, despite having no prior felony convictions, no history of violence, and having been convicted of the nonviolent offence of conspiracy to possess and distribute crack cocaine, Douglas Ray Dunkins Jr. was sentenced to mandatory life without the possibility of parole.  No drugs were seized in the case, and Douglas was convicted largely on the basis of testimony from co-conspirators who received reduced sentences in exchange for their testimony.  If Douglas had been sentenced for an equal amount of powder cocaine instead of crack, he would have received an (albeit still harsh) sentence of 20 years. 

Douglas is now 50, has been incarcerated for 24 years, and is now a grandfather. His three daughters, who were little kids when he was incarcerated, are now in their twenties. He has missed their entire youth, including their school graduations. Douglas’s mother, Bonnie Dunkins, has Stage Four cancer, and is no longer strong enough to make the four-hour trip from her home in Fort Worth, Texas to El Reno, Oklahoma, where Douglas has been in prison since Bill Clinton was starting his first term in office. The ACLU represents Douglas on a petition to President Obama seeking a commutation (reduction) of his sentence that would allow Douglas to get out of prison and rejoin his family.

It is a scourge which has plagued this country since its founding.

Racial disparities in sentencing also result in part from prosecutors’ decisions at the initial charging stage, suggesting that racial bias affects the exercise of prosecutorial discretion with respect to certain crimes.  One study found that Black defendants face significantly more severe charges than whites, even after controlling for characteristics of the offence, criminal history, defence counsel type, age and education of the offender, and crime rates and economic characteristics of the jurisdiction.  Available data also suggests that there are racial disparities in prosecutors’ exercise of discretion in seeking sentencing enhancements under three-strikes and other habitual offender laws.

The ACLU is working to end racial injustice in the enforcement of our criminal laws and punishment.  On policing, through litigation, advocacy, and public education, we are seeking to eliminate racial profiling and biased policing from law enforcement, institute de-escalation training, change the culture of policing from occupying warrior to guardian of the communities of which they are a part, and end the selective enforcement of low-level offences through implicit bias training, reclassification and decriminalisation of offences, and pre-arrest diversion programmes, not to mention ending the failed ‘war on drugs’. 

On sentencing, in addition to having pushed successfully for partial reform of the crack-powder disparity and establishing the Clemency Project 2014 to seek reduction of unfair drug sentences, we seek to end mandatory minimum sentencing, abolish life without parole for offences committed by children under 18 years of age and for anyone convicted of a nonviolent offence, require federal and state governments to examine racial disparities in sentencing, including racial disparities in prosecutors’ exercise of discretion when seeking sentencing enhancements, and to cease immediately all federal death penalty prosecutions and impose a moratorium on executions to ensure that racial bias does not play a role at any stage of the capital punishment process.

These are all critical steps towards reform.  But undergirding the disparate treatment of people of colour in our criminal law system is racism. Sometimes it is implicit, sometimes explicit, sometimes unintended, other times driven by animus, sometimes structural, other times individual. It is a scourge which has plagued this country since its founding.

Until America grapples meaningfully with this illness, seeking holistic treatment aimed at eradicating the virus as opposed to superficial band-aids meant only to stop the latest bleeding, racial disparities in our legal system will persist, and reforms such as those above will continue to be needed, and will reduce but be insufficient to eliminate such profound unfairness. 

This article is published as part of an editorial partnership between openDemocracy and CELS, an Argentine human rights organisation with a broad agenda that includes advocating for drug policies respectful of human rights. The partnership coincides with the United Nations General Assembly Special Session (UNGASS) on drugs.


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