Criminological literature has long considered whether the relationship between race, class, and the severity of sentencing has resulted in disparities in imprisonment. The interest in this relationship has been fueled, in part, by real or perceived institutionalized racism in the United States and by the observed disparity between incarcerated African Americans and their white counterparts. On the one hand, there is an argument that no such relationship exists and that any disparity between incarcerated African Americans and incarcerated whites is minuscule, statistically insignificant, and nonsystematic. On the other hand, there are those who argue that there is a relationship between race, class, and not only the likelihood of being found guilty of similar offenses but also the severity of the sentence once found guilty.
There is yet a third argument which claims that African Americans are treated more leniently than whites. Notwithstanding the divergent opinions, the general consensus seems to be that African Americans tend to receive harsher sentences than their white counterparts, even controlling for aggravating and mitigating circumstances, and despite the fact that the offenses are the same and occurred in similar contexts. The central question here is whether there are imprisonment disparities because minorities in the United States are sentenced more harshly than whites. To answer this question researchers have used different methodologies, assessed different variables, and produced findings that have not always supported each other.
Increasing Incarceration
In a general sense, there has, indeed, been an unprecedented increase in incarceration rates from 1970 to 2007 with a more than 500 percent increase resulting in over 2 million people behind bars. African Americans constitute over 1 million of the incarcerated population. Additionally, African American females are, and will continue to be, more likely to be incarcerated than white women. Results for the Hispanic community are just as disturbing. One in every six Hispanic males and one in every 45 Hispanic females born in 2013 can expect to go to prison at some point in his or her lifetime. Note that these rates are more than double the rates for non-Hispanic whites. The incarceration rate for whites is 412 per 100,000 residents compared to 2,290 for African Americans and 742 for Hispanics. When percentages are applied, 2.3 percent of the African American community is incarcerated while 0.4 percent of the white community and 0.7 percent of the Hispanic community are incarcerated. One in every six African American male dropouts went to prison every year in the late 1990s.
The protective effects of a college education are noted here in that fewer than 1 percent of college-educated African American men were admitted to prison in 2001. It is necessary to also note, that with respect to education, race, class, and imprisonment, among men born between 1965 and 1969, 3 percent of whites and 20 percent of African Americans had served time in prison by their early 30s. Therefore, not only does race and class have a noticeable impact on imprisonment disparities, but the risk of incarceration is also impacted by levels of education. Among African American men born during the period between 1965 and 1969, 30 percent of those without college education and nearly 60 percent of high school dropouts went to prison by 1999.
Incarceration had, in effect, become a new stage in the life course of young, low-skilled, undereducated African American men. It is noteworthy that the slim economic opportunities and turbulent living conditions of young disadvantaged and African American men also played a part in leading them to crime. As a result of this stigma, the focus of the criminal justice system on members of these communities remains.
There is no argument that if this trend of incarceration continues, one in three African American males born in 2013 can expect to find themselves spending time in prison at some point during their lifetime. Furthermore, a 1998 study by George Bridges and Robert Crutchfield concluded that African Americans are more likely than their white counterparts to be imprisoned in those states where the African American population is small and predominantly urban. In conducting the study the racial composition of state prisons in 48 states as of December 1982, data on crime patterns that existed at the time, and the characteristics of laws and the administration of justice from published sources were collected. Three variables were examined: (1) racial disparity in imprisonment, (2) arrest rates, and (3) social characteristics, laws, and legal policies.
It was determined that once there was a high concentration or high percentage of African Americans residing in a particular area, white rates of imprisonment were higher than in those areas with a low percentage of African American residents. This was an interesting finding since it suggests that if all other characteristics of states are controlled, results for incarceration rates may be equalized. Other studies have also addressed the paradox that the size of the African American population positively impacts the level of police resources and white fear of crime, and that per capita rates of African American arrests and imprisonment are higher where African Americans are a smaller proportion of the population.
Class
With respect to class, African Americans are typically segregated by neighborhoods and, therefore, find themselves overly exposed to geographic concentrations of poverty, reduced levels of informal community control, and ultimately, higher levels of violence, both as victims and offenders.
Despite continued echoes of concern regarding ghetto poverty as a social problem, not much has been offered in terms of a detailed policy solution. Indeed, many of the reported social problems continue to worsen. Despite calls for increased social investment to avert the problems of crime and poverty, public policy has instead turned to punitive measures, massively expanding the role of the criminal justice system. As a result of this new policy direction, since the early 21st century more than a third of young African American, noncollege-educated men have been incarcerated. Indeed, the period between 1975, when prison incarcerations were about 100 per 100,000, and 2001, when rates were as high as 472 per 100,000, was called the prison boom era.
The imprisonment of African Americans for drug offenses is part of a larger crisis of over incarceration in the United States. Although prison should be used as a last resort to protect society from violent or dangerous individuals, more people are sent to prison for nonviolent drug offenses than for crimes of violence. Throughout the 1990s, more than 100,000 drug offenders were sent to prison annually. More than 1.5 million prison admissions on drug charges have occurred since 1980. The rate at which drug offenders are incarcerated has increased ninefold. Drug control policies bear primary responsibility for the quadrupling of the national prison population since 1980 and a soaring incarceration rate, the highest among Western democracies. Despite ongoing research that supports the debilitating effect of the War on Drugs on African Americans, only perfunctory efforts have been made to rectify the situation.
Racial Disparities
There continues to be a focus on the extreme racial disparities in one area of the criminal justice system—the incarceration of drug law offenders, that is, persons whose most serious convicted offense is a nonviolent drug law violation. Statistics continue to document the extraordinary extent to which African Americans have been burdened with imprisonment because of nonviolent drug offenses. The statistics present a unique—and devastating— picture of the price African Americans continue to pay as a result of the national effort to curtail the use and sale of illicit drugs. Aggregate national data masks the remarkable differences among the states regarding the degree to which they put drug offenders in prison and the extent to which the use of prison as a penal sanction for drug offenders is racially disproportionate. These substantial state differences are primarily the result of public penal policies and law enforcement priorities, and not different rates of drug offending. As such, there is also a contention that state laws and legal policies are strongly related to imprisonment disparities.
The grossly disparate rates at which African Americans and whites are sent to prison for drug offenses raises a clear warning flag concerning the fairness and equity of drug law enforcement across the country. Drug offenders in the United States face penal sanctions that are uniquely severe among Western democracies. Drug sentences, even for those guilty of retailing or possessing small drug quantities, can compare to or exceed sentences for serious violent crimes such as armed robbery, rape, and even murder. Supporters of imprisonment for drug offenders insist it removes major traffickers and dangerous criminals from society, deters prospective offenders, and enhances community safety and wellbeing, but all this is being done at the expense of minority communities.
Critics point to compelling data showing that few of the drug offenders who end up in prison are high-level dealers or traffickers and, indeed, that the prior criminal records of many incarcerated drug offenders are limited to drug offenses or consist of other nonviolent crimes. And despite this movement toward more severe sentencing policies, the massive use of imprisonment has failed to decrease the availability of drugs or raise their price, and adult drug use has not changed appreciably since the end of the 1980s. Most observers believe imprisonment has had little impact on the number of drug dealers on the streets. Even many police officials acknowledge that, for every low-level dealer incarcerated, another emerges to take his place. Moreover, the concept of mandatory minimum prison sentences for drug offenders has not proven itself to be cost-effective with respect to reducing cocaine consumption, cocaine expenditures, or drug-related crime.
Drug Use and Punishment
While one may argue that prison is a legitimate criminal sanction, it should be used sensibly, justly, and with due consideration for the principles of proportionality and respect for human dignity required by international human rights law. The incarceration of hundreds of thousands of low-level nonviolent drug offenders betrays indifference to such considerations. Moreover, many minority drug offenders receive overly long prison sentences, particularly because of the prevalence of mandatory sentencing laws for drug offenses that do not permit judges to calibrate sentences to the conduct and level of culpability of each defendant. Many factors, not the least of which are (1) the transformation of crime and punishment into key issues in electoral debates, (2) the persistence of drug abuse, (3) the desire to “send a message” and re-emphasize social norms, (4) ignorance about drug pharmacology, and (5) concern about crime have encouraged politicians and public officials to champion harsh prison sentences for drug offenders and to turn a blind eye to the extraordinary human, social, and economic costs of such policies. They have also turned a blind eye to the staggering racially biased impact of the War on Drugs.
It is difficult to assess the extent to which racial bias or sheer indifference to the fate of minority communities have contributed to the development and persistence of the nation’s punitive antidrug strategies. Certainly the emphasis on penal sanctions in the fight against drugs cannot be divorced from long-standing public association of racial minorities with respect to crime and drugs.
For example, cocaine use by whites in all social classes increased in the late 1970s and early 1980s, but it did not engender the overwhelming media and political attention that catalyzed the War on Drugs in the mid-1980s when smokable cocaine, in the form of crack, spread throughout low-income minority neighborhoods that were already seen as dangerous and threatening. Even though far more whites used both powder cocaine and crack cocaine than African Americans, the image of the drug offender that has dominated media stories is of an African American man slouching in an alleyway, not a white man in his home. When asked to close their eyes and envision a drug user, Americans overwhelmingly picture a person of color.
Poor minority urban neighborhoods have been the principal “fronts” of the War on Drugs. Massive street sweeps, buy-and-bust operations, and other police activities have heavily targeted participants in street-level retail drug transactions in these neighborhoods. Not surprisingly, comparably few of the people arrested there have been white. Racial profiling, or the police practice of stopping, questioning, and searching minorities in vehicles or on the street based solely on their appearance, has also contributed to racially disproportionate drug arrests, although there are no reliable estimates of the number. More persons of color have also been prosecuted federally for crack offenses than whites and thus have disproportionately felt the effects of the higher sentences for crack versus powder cocaine mandated in federal law.
Many Americans would agree that punitive drug policies relying on harsh penal sanctions would have been changed long ago if whites were incarcerated on drug charges at the same rate as people of color. It is deeply troubling that in the United States the political majority has maintained criminal justice policies that so disproportionately burden a racial minority, particularly when those policies, coupled with felony disenfranchisement laws, further politically weaken that minority. Politicians have been able to more easily reap the electoral advantages of endorsing tough policies because the minority group that suffered most from those policies lacked the numbers to prevail in the political arena.
Granted the public has a legitimate interest in curtailing the abuse of dangerous drugs. But the importance of drug control should not be permitted to override fundamental principles of equal protection of the laws and racial equality. In an equitable criminal justice system, sanctions should be imposed equally on offending populations.
Under state and federal constitutional law, racial disparities in law enforcement are constitutional as long as they are not undertaken with discriminatory intent or purpose. International human rights law does not impose the requirement of discriminatory intent. From accusations of persistent patterns of housing discrimination, to the overwhelming issue of disproportionate minority overrepresentation in the three branches of the criminal justice system, imprisonment has been identified as the predominant factor in the emasculation of African Americans men. In fact, scholars have argued that both de facto and de jure discrimination permeate the very fabric of the criminal justice system to the detriment of African Americans; and past policing policies and the so-called cracklaw-blacklaw, for example, has supposedly targeted African American communities and encouraged double standards of criminal justice treatment. Criminal justice practitioners also argue that the War on Crime and the War on Drugs are actually wars on African American communities.
Since the mid-1980s, the United States has undertaken aggressive law enforcement strategies and criminal justice policies aimed at curtailing drug abuse. The costs and benefits of this national War on Drugs are fiercely debated. What is not debatable, however, is its impact on African Americans. Ostensibly color-blind, the War on Drugs has been waged disproportionately against African Americans. Research shows that African Americans compose 62.7 percent and whites 36.7 percent of all drug offenders admitted to state prison, even though federal surveys and other data show clearly that this racial disparity bears scant relation to racial differences in drug offending. There are, for example, five times as many white drug users than African American users. Relative to population, African American men are admitted to state prison on drug charges at a rate that is 13.4 times greater than that of white men, in large part because of the extraordinary racial disparities in incarceration for drug offenses. African Americans are incarcerated for all offenses at 8.2 times the rate of whites. One in 20 African American men over the age of 18 in the United States is in state or federal prison, compared with one in 180 white men.
Concluding Analysis
In the final analysis, African Americans are incarcerated at nearly six (5.6) times the rate of whites, and Hispanics are incarcerated at nearly double (1.8) the rate of whites. Different states exhibit substantial variations in the ratio of African American to white incarceration, ranging from a high of 13.6 to 1 in Iowa to a low of 1.9 to 1 in Hawai‘i. States with the highest African American to white ratio are disproportionately located in the Northeast and Midwest, including the states of Iowa, Vermont, New Jersey, Connecticut, and Wisconsin. This geographic concentration is true as well for the Hispanic-to-white ratio, with the most disproportionate states being Massachusetts, Pennsylvania, New York, New Hampshire, and New Jersey.
States exhibiting high African American or Hispanic ratios of incarceration compared to whites fall into two categories: (1) those such as Wisconsin and Vermont that have high rates of African American incarceration and average rates of white incarceration, and, (2) states such as New Jersey and Connecticut which have average rates of African American incarceration and below-average rates of white incarceration. In both cases, the ratio of incarceration by race is higher than average.
Assessing whether the severe impact of drug law enforcement on African Americans is justifiable requires scrutiny of the drug war’s goals and methods and consideration of available alternatives. There are numerous policy alternatives to current patterns of criminal law enforcement that critics argue would reduce adverse racial disparities while continuing to respond to social concerns about public drug dealing and drug abuse. In the context of nationwide debates over the use of the criminal law to address drug abuse, doubts about the fairness and justice of enforcing those laws disproportionately against minorities take on even greater significance.
Even if African Americans and whites were sent to prison on drug charges at comparable rates, the heavy U.S. reliance on incarceration in its drug policies would still pose an ethical problem. The direct and collateral consequences of imprisonment may be acceptable when violent offenders are put behind bars, but they are much harder to justify for nonviolent drug offenders.
In the poor urban minority communities from which most African American drug offenders are taken, the high percentage of men and, increasingly, women sent to prison may also undermine their communities’ moral and social cohesion. By damaging the human and social capital of already disadvantaged neighborhoods, the War on Drugs may well be counterproductive, diminishing opportunities for social and economic mobility and even contributing to an increase in crime rates.
Finally, unfulfilled desires for a standard of living comparable to that of the mainstream, coupled with growing levels of frustration at blocked opportunities, may also drive the poor to crime so that they might access the material success enjoyed legally by the middle class. The poor are more likely to reject legitimate means of achieving their goals and accept criminal methods as their norm. As such, specific types of inequality (such as racial inequality), as opposed to inequality based on achievement, becomes blatantly illegitimate.
The future of racial diversity, division, and harmony will depend heavily on how issues are addressed concerning the full and equal inclusion of all ethnicities and races into society. Events over the past 40 years have clearly shown that simply removing legal barriers does not necessarily result in complete and equal participation. Seemingly insurmountable inequalities in work, income, education, and family life produce forces that act against the full incorporation of identifiable ethnic and racial groups in general, African Americans in particular. This is especially apparent in the unequal application of harsh policies regarding drug use and disparities in incarceration.
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