Issues of Race in the US Criminal Justice System

Racial disparity in the criminal justice system exists when the proportion of a racial or ethnic group within the criminal justice system is greater than the proportion of such groups in the general population. African-American adults are 5.9 times as likely to be incarcerated than Whites (https://www.sentencingproject.org/publications/un-report-on-racial-disparities/ ) African Americans are far more likely than white Americans to be arrested ; once arrested, they are bound to be convicted; and once convicted, and they are bound to encounter protracted jail sentences.  In 2016, black Americans comprised 27% of all individuals arrested in the United States; this is double their share of the total population (Sentencing Project 8). Black youth accounted for 15% of all U.S. children yet made up 35% of juvenile arrests in that year. (sentencing project 9) African Americans and Hispanics make up approximately only 32% of the US population, they comprised 56% of all incarcerated people in 2015. (NAACP). A major contributing factor in causing a racial disparity in the criminal justice system is our nation’s War on Drugs.

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In 1980, before the start to the latest War on Drugs, the drug arrest rate for African-Americans was 491 per 100,000 and the rate for whites was 238 per 100,000-a ratio of roughly 2 to 1. Less than 10 years later, at the peak of the drug war, these rates had climbed to 1460 per 100,000 for African Americans and 365 per 100,000 for blacks and whites (Western,2006)- a 4 to 1 ratio. Experts who were detractors of the War on Drugs state that the dramatic rise of arrests and incarceration of black Americans was predicated, and if not planned. Michael H. Tonry, a criminologist, and Professor of Criminal Law and Policy at the University of Minnesota Law School stated “The War on Drugs foreseeably and unnecessarily blighted the lives of hundreds of thousands of young disadvantaged black Americans. The bodies counted in this war are even more disproportionately black than prisoners already were. The War on Drugs

was a calculated effort foreordained to increase those percentages and this is what happened” (Burston,1995: 82,).

On June 19, 1986 University of Maryland basketball star Len Bias died of a cocaine overdose; only two days after he was selected number two overall by the Boston Celtics in the NBA draft. Eight days later, Don Rogers; star NFL safety for the Cleveland Browns also died of a cocaine overdose. These two tragedies sparked a national political, and media frenzy; focusing on drugs, more specifically crack cocaine. News stations shortly after the deaths of the two star athletes aired dozens of evening specials depicting the dangers of crack cocaine use (Source 3 Diamond 1991:97). Along with the television news segments; newspapers across the country contained thousands of stories doing just the same (source 3 Trebach,1987). A common goal of these stories was to inform readers and viewers that crack cocaine was extremely, even instantly addictive.  The most common reoccurring theme portrayed in the news was that crack cocaine use was directly linked with non-drug crime. Particularly violent crime. Meaning, users of crack cocaine then went on to commit other crimes, and their use of crack is what caused them to participate in other crimes; yet another theme in the media was that crack use was reaching “epidemic” proportions in America’s inner cities. According to media reports, crack, was not only an inner-city problem, as the spread of crack to middle class suburban areas. Newsweek claimed that crack “has transformed the ghetto” and “is rapidly spreading into the suburbs” (Newsweek, 1986: p. 58-59). An indisputable element in the media hysteria surrounding cocaine use was race. Jimmie L. Reeves and Richard Campbell authors of “Cracked Coverage: Television News, The Anti-Cocaine Crusade, and the Raegan Legacy”, discovered that starting in 1986 cocaine users on television news programs were commonly depicted as black. Before 1986 cocaine users were depicted as wealthy, white individuals.

Politicians from both sides of the political spectrum during the time were spreading the same messages with the same themes about crack use that the media depicted. President Reagan, for example, stated: “Cocaine is a killer. Today an even more devastating form of cocaine ‘crack’ has appeared. It is so powerfully addictive that the user, even a first-time user, feels an overwhelming compulsion for more” (Reagan, 1986). President George H.W stated that crack was “turning our cities into battle zones and murdering our children” (Bush, September 5, 1989). President Bush concluded: “All of us agree that the gravest domestic threat facing our nation today is drugs.in particular, crack (ibid).

The media’s racially driven coverage, and the political emphasis on the crack epidemic resulted in a dramatic increase in the public’s concern about drug use and the problems that came along with it. This is proven by the results of national opinion polls that asked participants “the most important problem facing the country today”. In years before the deaths of Rogers and Bias, only 1% of poll participants reported that drugs and drug use was the biggest problem facing the nation. After the deaths of Bias and Rogers in 1986, and the media and political emphasis that came along after the tragedies, 10% of respondents believed that drugs

were the most important problem facing the country (source 3 Reinarman and Levine, 1997b: 24). In September of 1989, after President Bush’s National speech declaring drugs “the gravest domestic threat,” 64% of respondents believed that drugs were the country’s most important problem (source Reinarman and Levine, 1997b: 24).

 The accessibility of small amounts of crack cocaine at very cheap prices revolutionized the inner-city drug markets. $50- $100 could get a drug user anywhere from a half gram to a gram of powder cocaine. Compared to $5- $20 that could get a user a small vial of crack that contained a few crack rocks. (source 4, 25). The dramatic rise of crack use during mid to late 80s created many myths about crack. For instance, crack was believed to be way more addictive than powder cocaine that it was instantly irresistible. It was said to cause particularly violent conduct, wreck the maternal instinct prompting the deserting of children, be a one of a kind risk to developing fetuses, and cause an age of alleged “crack babies” that would torment the country’s urban communities for their lifetimes (source 4, page 4). These myths have been proven false by a study published by the Journal of American Medical Association (JAMA). The study found that the physiological and psychoactive effects of crack and pure powder cocaine are very similar to one another (source 4, 8 page 4). The myths about crack were used to justify why it was treated differently from powder cocaine under the law.

 To combat citizen’s fear of drugs and drug use, more specifically crack; politicians and policy makers passed new strict legislation. The two most important pieces of legislation being the Anti-Drug Abuse acts of 1986 and 1988. The Anti-Drug Abuse Act of 1986 established the “100-to-1-ratio”. This stated that first time offenders must serve a mandatory 10-year sentence for the distribution of 5,000 grams or more of powder cocaine. The same mandatory 10-year sentence was applied to the distribution of only 50 grams or more of crack cocaine. Meaning the distribution of 1 gram of crack cocaine carried the same punishment as distributing 100 grams of powdered cocaine (source3 page 54). Drug related crimes continued to rise, and two years later Congress passed the Anti-Drug Abuse Act of 1988. This new legislation created a mandatory minimum 5 year and maximum 20- year sentence for simple possession of crack cocaine (source 4, 48). The maximum sentence for any amount of powder cocaine was only 1 year in prison. Both pieces of legislation passed by Congress are responsible for putting thousands of black American lives in prison for extremely long periods of time. These acts were passed by Congress to combat a national public fear of crack cocaine. This fear was generated by our nation’s media; and based not on fact, but on myths that crack was more addictive than powder cocaine. Myths that unlike powder cocaine, crack cocaine use was directly related to users committing violent crimes. These sentiments were then passed along by our nation’s top politicians, fueling United States citizens fear of crack cocaine even more.

 Fast forward in time to the 1990s. The War on Drugs shifted its emphasis from crack cocaine to marijuana offenses. From 1990 to 2002 drug arrests rose from 1,089,500 to 1,538,800; a 41% increase. During this time non-marijuana drug arrests only rose 10%. Compared to a 113% increase in marijuana arrests (source 6 page 3). With the War on Drugs clearly shifting its emphasis to marijuana offences, African Americans were again disproportionately targeted. A shocking statistic holds African Americans accountable for only 14% of marijuana users; however they accounted for just under one-third of marijuana related arrests (source 6 page 3). A specific example explaining how black Americans were being targeted at the time would be the NYPD’s racially bias stop-and-frisk practices. New York City’s black population accounted for only 26% of the whole population; but accounted for 51% of all stop-and-frisk stops. Compared to whites Americans, who made up 43% of the city’s population, but only accounted for 13% of stops (source 5 page 4). This example of racial bias in how the NYPD practiced stop-and-frisk can be tied back to the 80’s. A time when all Americans were exposed to a false notion that drug users were mostly people of color.

 African Americans aren’t only targeted for drug offenses at much higher rates than whites, they are also convicted and sentenced to prison at higher rates. 71% of African Americans convicted of a felony drug offense were sentenced to prison compared to 63% for whites convicted of the same type of crime (source 2 page 65) The question “Why are blacks incarcerated more often than whites when convicted of similar drug offenses?’ Ojmarrh Mitchell, an associate professor in the Department of Criminology at the University of South Florida believes the reasons being that blacks fit the stereotype of a drug offender; and that sentencing in drug cases is often open to interpretation; allowing actors in the court to use their discretion. This discretion is then influenced by the fact that a stereotypical drug offender is black (source 2 page 66).

 Some steps have been made to change the problem of racial disparity in the criminal justice system when it comes to drug offences. The Fair Sentencing Act of 2010 (FSA), signed by President Obama, changed the ration from 100 grams of powder cocaine receiving the same penalty as 1 gram of crack cocaine; to 18 grams of powder cocaine receiving the same penalty as 1 gram of crack cocaine. While this act is taking a step to solving the problem of racial disparity it still holds a racial discrimination in the fact that the ratio is still 18 grams of powder cocaine receives the same penalty as 1 gram of crack cocaine. The solution to this would be turn the 18:1 to a 1:1; this would state that one gram of powder cocaine receives the same penalty as 1 gram of crack cocaine. The Supreme Court determined in United States v. Dorsey Achieve that the FSA would only apply to all offenders sentenced after the FSA was passed. This meant that anyone that was sentenced before the FSA was passed, in 2010, would not be eligible for resentencing. As another solution as far as United States v. Dorsey Achieve Re-Sentencing case would be to have the FSA be applied to all cases, even before 2010 when the Fair Sentencing Act was put into place. More and more states today are legalizing the use of recreational marijuana. This will contribute to the change racial disparity in the criminal justice system. This will change the racial disparity because of the fact that black Americans are still so highly targeted for drug crimes. States legalizing recreational marijuana should take the next step and start re-sentencing people currently in prison for marijuana offences. States where recreational marijuana is not yet should adopt what District Attorneys in Manhattan and Brooklyn are doing. They announced plans to stop prosecuting the vast majority of people arrested on marijuana charges, citing, in part, the racial disparities that exist in the city’s marijuana arrests (Wolfe).

Burston, B. W., Jones, D., and Roberson-Saunders, P. (1995). “Drug Use and African Americans: Myth Versus Reality.” Journal .J Alcohol and Drug Education 40(2), 19-39.

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HUDSON, C. (2014). Between a Rock and a Hard Place: Ensuring that Defendants Incorrectly Sentenced Between the Fair Sentencing Act of 2010 and United States v. Dorsey Achieve Re-Sentencing. Columbia Journal of Law and Social Problems, 142-179.

King, R. S., & Mauer, M. (2006). The War on Marijuana: The Transformation of the War on Drugs in the 1990s. Harm Reduction Journal.

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Newsweek. (1986). Kids and Crack: An Epidemic Strikes Middle America. Pp. 59-65.

Ojmarrh Mitchell (2009) IS THE WAR ON DRUGS RACIALLY BIASED?, Journal of Crime and Justice, 32:2, 49-75, DOI: 10.1080/0735648X.2009.9721270

Reagan, R. (1 986). Proclamation 5562–Crack/Cocaine Awareness Month, October 31, 1986. The Public Papers of President Ronald W. Reagan. http://www.reagan.utexas.edu/archives/speeches/1986/103 186c. htm.

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Vagins, D. J. (2006). Cracks in the System: Twenty Years of the Unjust Federal Crack Cocaine Law.

Western, B. (2006). Punishment and Inequality in America. New York: Russell Sage Foundation.

Wolfe, J. (2018). Marijuana in New York: Here’s How the Laws Are Changing. Retrieved from https://www.nytimes.com/2018/06/20/nyregion/marijuana-laws-new-york.html.