Friday, June 27, 2014

ER Crowding – Current and Future Issues

Crowding in emergency rooms (ERs) has been an increasing problem in the developed world for the last few decades, especially in the United States. However, the political and medical arenas are not appropriately addressing this problem as from 1995 to 2009 annual ER visits in the U.S. increased by 41% (96.5 million to 136.1 million), but the number of hospital ERs have decreased by 27% (2,446 to 1,779)1-3 Among U.S. ERs in 2010 a mere 31% achieved their triage targets and only 48% were able to admit patients within 6 hours of registration.4 One of the immediate problems with this overcrowding problem is that it has become a normal occurrence. How could ERs effectively respond to outbreaks of highly contagious pathogens, industrial accidents, terrorist attacks, etc. if currently over half of the non-critical patients have to wait 6+ hours before receiving treatment? Apart from disasters ER crowding increases patient mortality, reduces quality of overall care, impaired transport access and increases financial losses and stresses. Also note that ER crowding is not a unique problem to market economics, but also affects countries with universal systems of medicine like Canada, Australia, New Zealand, etc., thus the passage of the Affordable Care Act will not systematically result in a reduction in crowding.

ER operations have numerous metrics to measure the effectiveness of operations, but typically the most commonly used ones are length of stay (LOS), % of patients who leave without being seen (LWBS), wait time (WT), and ambulance diversion (AD).5,6 However, while these metrics are commonly used, they should not be utilized in a vacuum because some ERs do not even have the ability to divert ambulances and patient wait metrics like LOS and WT are influenced by case complexity. Another concern about these metrics is that most of them are rarely made public nor are there set standards regarding quality, thus it is difficult to have common up-to-date information to determine whether or not a given community is receiving adequate medical care in both absolute and relative terms.

Opposite the fast-paced ambulatory delivery of a critical patient into an emergency room who is immediately admitted, the general operation of an emergency room from the perspective of an individual who enters outside an immediately apparent life threatening condition is as followed:

First, the attending nurse (rarely a physician) conducts a basic triage. Triage itself typically adheres to the Emergency Severity Index (ESI), which is a 3 or 5-tier categorization that combines urgency with an estimate of the resources required to treat the condition.7-9 In the original, now less common 3-tier system the three groups are: immediate treatment required (emergent); urgent, but not currently life or permanent health threatening; or minor condition that can be addressed in time (non-urgent); obviously these categorizations are required to ensure the best and most appropriate care for all potential patients.

In the 5-tier system an additional two groups are added: resuscitation and less urgent making the whole tier structure – 1) resuscitation; 2) emergent; 3) urgent; 4) less urgent; 5) non-urgent.8,9 Realistically the addition of these two new tiers seems rather unnecessary because resuscitation is an obvious choice for immediate treatment not requiring its own category and the difference between less urgent, urgent and non-urgent is marginal. However, it seems to work and does not appear to create significant complications with its seeming unnecessary redundancy.

Clearly individuals with urgent conditions should be seen by physicians before individuals with minor conditions even if the individual with a minor condition arrived first. Triage typically involves acquiring major vital signs (temperature, pulse, respiratory rate, blood pressure, etc.) and a short interview to assess what the patient is feeling and the major details regarding medical and medication history. Depending on the type of classification the new patient will be placed in a certain position on a waiting list.

The triage system typically functions under a scoring system to evaluate the condition of the individual. In addition to physical scoring, physiological scoring is also used to address urgency for treatment. Utilized scoring systems include APACHE II (which is also the most common ICU system to measure prospective mortality), SAPS II, MODS, PRM and GCS (becoming more popular due to its simplicity, sensitivity and specificity).10-14 Scoring systems have also demonstrated that ER care is significantly more important than follow-up care in the ICU showing significant drops in predicted mortality for proper ER care.15 In addition to the older tests, a newer test, the Mortality in Emergency Department Sepsis Score (MEDS), was recently been developed to predict the probability that ER patient contract an infection that could increase complications and/or mortality.16

While tests like APACHE II, SAPS II and MODS are important analysis elements, the development of new ER specific scoring systems like MEDS is important because the older systems were designed to measure illness severity and mortality risk probabilities in a less time dependent nature within the confines of an ICU whereas the ER environment is fast-paced and more time dependent creating a lead-time bias.10,15 Factors that are considered important for ER based scoring systems include: 1) variables that reflect pre-hospital illness severity; 2) illnesses that can be contracted from the ER; 3) ability to be incorporated into a multi-center database with sufficient size and power to validate the model’s accuracy; 4) analytical ability for the relationship between the predictive variables and actual patient outcome for calibration and reliability measurement; 5) secondary predictive effects beyond simple mortality to measure LOS, WT and return visits; 6) use of time-indexed variables to reflect treatment response during care.10,17,18

While a nurse typically governs triage, some studies have suggested that when a physician is in charge of triage instead of a nurse various performance metrics like LOS, LWBS and AD all decrease.19-21 Of course the trade-off for this potential improvement is an increase in cost due to hiring another physician. Otherwise in-room care for patients that have moved from the ER waiting room to an exam or operating room will suffer because of the lack of a physician or one being stretched between exams and triage.

Second, individuals who do not require immediate treatment enter the registration process where the patient officially registers as a patient, which involves filling out all of the relevant paperwork familiar to any first-time patient in a general practitioners office. This step is relevant to consolidate all relevant information including a more detailed medical history and payment information (insurance, etc.). These details are important to create a single medical record that can be referenced during the patient’s stay in the ER. It is important to note that a number of people incorrectly believe that an uninsured individual receives free medical care when going to an ER. This is not correct. The Emergency Medical Treatment and Active Labor Act of 1986 only obligates ERs to care for individuals regardless of ability to pay. Uninsured individuals that receive care from an ER still receive a bill for the services rendered. If they are unable to pay the bill then their credit score is negatively affected and if the hospital/physician so desires they can be sued for the amount. This billing is why uninsured individuals in the past did not go to the ER for every little thing that may be wrong with them.

Afterwards the ER visit proceeds similar to an standard physician visit where when it is an individual’s turn the individual enters an exam room where a nurse reassesses blood pressure and temperature, and if necessary draws blood and/or collects a urine sample for lab testing purposes. Next a physician visits the patient and after a brief discussion makes a differential diagnosis. After the diagnosis for conditions that are not immediately critical the patient is prescribed a treatment and sent home.

One of the major reasons critics cite for continued difficulty in transforming ERs to better manage their patient flow is their tradition/culture. As described above the standard operation of an ER is one person – one task with little intra-staff interaction, a methodology that in the era of computers and multi-tasking is viewed as inefficient and costly. A significant amount of this inefficiency comes from having different doctors and nurses repeat information gathering due to lost or “mistranslated” previous attempts. This problem is augmented by poor coordination among providers, which are typically highly fragmented encompassing multiple emergency medical service agencies with different standards and different practices to the point where agencies in different, but adjacent jurisdictions have difficulty communicating. This coordination is difficult due to turf wars and because transport options are limited.

To maximize the effectiveness of reform interventions dramatic improvement in intra and inter-hospital coordination will be required including standardization of procedures and practice. Incorporation of electronic health records would help in managing this concern, but applying electronic health records for an ER is significantly more difficult than a standard physician office due to the required pacing and lack of consistency in the repeat visitation of patients. Unfortunately in addition to the incorporation of electronic health records, the expanded coordination discussed above has always been the go-to solution and the general dream of individuals trying to address crowding problems, but this coordination is very slow to developed despite the desire to produce it.

One strategy to increase coordination is to increase multi-tasking. However, while some cite some limited studies about the improved efficiency born from multi-tasking there is concern about expanding this strategy for other studies suggest that demonstrated reduced cognitive efficiency in individuals who engage in multi-tasking versus focusing on a single task and then moving on to a secondary task.22 Reduced cognitive efficiency would increase the probability of medical errors and increase the probability of detrimental medical outcomes including death. In addition the demographic of ER patients and the seriousness and complexity of their conditions are changing with more older patients with chronic conditions and multiple co-morbidities with younger patients having fewer non-urgent and more semi-urgent and urgent visits.23 Increase the level of complexity in condition and diagnosis while decreasing the attentiveness and focus will further increase the probability of negative outcomes.

One of the past arguments rationalizing ER crowding was that too many uninsured individuals used the ER as a primary care physician because the lack of insurance dramatically reduced their ability to schedule appointments with general practitioners. Individuals who frequent the ER constantly are referred to as “frequent flyers” and typically make up 8-14% of ER patients and were thought to include large numbers of uninsured individuals.24 Therefore, one solution was increasing the probability that these individuals get insurance so instead of going to the ER they would go to a general practitioner to receive general medical care. Unfortunately this solution, while sound in theory, has not followed theory in reality. Both the expansion of insurance availability in Massachusetts in 2006 and various other states through the ACA have resulted in increases in ER patients with state based insurance (Medicare, Medicaid).25 So why is reality apparently trending contradictory to theory?

Two principle reasons jump to mind. First, most common analysis overestimated the number of individuals with no insurance who were using the ER for basic and principle medical care. While frequently flyers make up anywhere from 8-14% of the total patients during the day, most of these individuals have insurance. Recall that the ER is only bound to treat individuals regardless of ability to pay ensuring that they will receive treatment. However, that treatment is not free. Therefore, in the past individuals without insurance who received medical care from an ER would still have to pay for those services. It stands to reason that these individuals would not attend the ER constant because if they could not afford insurance, then they would not have consistent levels of disposable income to cover numerous ER visits for every nick and scrap.

This rationality hints at the second reason for why ER patients have increased. The primary assumption was that uninsured individuals would stop attending the ER when they received insurance. However, what appears to be happening is that previously uninsured individuals are actually attending the ER more often. The reason behind this behavior is probably derived from the fact that government sponsored insurance has significantly increased the number of individuals with insurance while the number of available general practitioners that are able to service these newly insured patients as well as past/current insured patients has increased at a much slower rate. Therefore, there are significant shortages between insured patients and available doctors to see them via appointment. With the lack of consistency in acquiring an appointment with a general practitioner, the consistency of an ER is appealing. The only real ways to resolve this behavior is train and certify more general practitioners, something that will not happen in the immediate future.

Interestingly enough this premise of ER crowding due to uninsured individuals using the ER for basic medical care in the past is not supported by research. Research suggests that while it was initially reported that this input factor was meaningful26,27 that initial interpretation was probably incorrect. ED crowding is more influenced by sickly and chronic patients who are admitted to the hospital than individuals who have minor injuries and are sent home after routine care/check-ups.28-32 Not surprisingly hospital occupancy (i.e. the number of available beds) versus the number of patients, which leads to boarding, is the strongest element correlated to length of stay in the ER and overall wait times.31,32 Other smaller factors leading to crowding are inappropriate ambulance diversion and direction33 and recently discharged inpatients looking for additional care under various motivations.34 However, as mentioned above boarding due to a lack of bed is the chief element responsible for ER crowding.

The most important consideration when identifying possible solutions to ER crowding is to create a standardized evaluation system to determine which solutions are effective, which are not effective and which are mediated by unique environmental conditions (i.e. effective for one particular hospital, but not for another). Developing this evaluation system would also make it much easier to assign accountability and measure overall and sector specific performance to create effective strategies to correct any problems. In addressing “quality” the Institute of Medicine (IOM) defined quality as “the degree to which health services for individuals and populations increase the likelihood of desired health outcomes and are consistent with current professional knowledge” and described six dimensions of quality care: a care that is safe, effective, patient centered, timely, efficient, and equitable.35

Not surprisingly various individuals have suggested that to measure the true value of a system an ER must be evaluated on the application of evidence-based medicine. While this solution should be effective it is sometimes difficult to coordinate the necessary information to ER doctors who typically have little downtime and do not want to spend it reading the latest meta-study. Ideally the practice of extensive evidence-based medicine is one of the dreams of incorporating technology into hospitals to the point where a physician can simply type a condition into a computer and the most effective treatments (as defined by existing evidence) with their corresponding caveats would appear. Unfortunately this reality has not arrived, but a less efficient substitution strategy involves conducting frequent physician meetings for brief reviews of the newest treatment strategies.

Some have suggested that patients define whether or not the quality metrics have been met through evaluations. However, patient evaluation is troublesome because patients may regard elements or instances of discomfort through their own personal lens without understanding or acknowledging the bigger picture. For example a patient may want a glass of water, but due to nurse/physician preoccupation in other more pressing tasks this individual waits a long time before getting the water and possibly develop a slight case of dehydration while waiting. For the patient such an event could easily be worth a quality demerit, but from the perspective of the hospital such an event is irrelevant. Similarly patients are not aware of a significant amount of “behind the scenes” actions relative to their treatment, thus have incomplete information regarding overall treatments and may mischaracterize certain outcomes as poor or negative. This is not to say that patients should not have the ability to make evaluations of their care, but it must be understood that there is high probability that those evaluation cannot be viewed as accurate inside the vacuum of the patient’s own opinion.

Another idea would be to create a small group of government based auditors who would periodically visit ERs and after observation and various informal interviews these individuals would evaluate ER performance and quality based on a series of standardized evaluation metrics. Under this system the bias of patients can be neutralized by an individual who has an understanding of a bigger picture and the bias of the ER authority will be eliminated by a neutral un-invested individual as well as dramatically reduce the time requirements that would be required for mandatory employee based evaluations. The one major drawback to this method would involve producing additional money to fund these government-sponsored auditors.

As mentioned above creating an effective evaluation system will increase the ability to produce quality solutions. Currently one of the most obvious solutions to addressing ER crowding is to reduce boarding. Boarding is the official term to describe when a patient who cannot be moved into an inpatient unit due to a lack of beds remains in the general ER area and receives periodic treatment within. During normal operating hours boarding represents anywhere from 20-40% of the total ER patient population.36 Boarding levels are also significantly influenced by financial decisions in effort to maximize hospital revenues. Not surprisingly average revenue per patient is higher for non-ER admissions than for ER admissions,37 thus hospitals favor giving beds and rooms to those higher value patients leaving ER patients waiting for a bed. The easiest method to reduce boarding is to increase the number of beds available in a hospital. However, this method costs significant amounts of money not only for the beds, but also for hospital expansion to place the beds. Hospitals have already attempted to increase bed number by placing more beds in single rooms, but this strategy can reduce patient welfare being counterproductive.

Some argue that how the bed is utilized also needs to be considered. There are two major types of beds: observation and inpatient. Observation beds are less costly to construct and staff due to building code requirements and upkeep relative to the patients that utilize them.38 In addition in Certificate of Need states constructing additional observation beds do not require the approval of a state agency unlike constructing additional inpatient beds.38 However, when constructing beds in general it must be understood that there are diminishing returns based on changes in patient inflow and medical requirements. Roemer’s Law is frequently cited when considering bed expansions because if one expands bed capacity one is expected to need it and use it. In some context similar to the psychology behind the Jevons paradox if beds are constantly used then the perception for more beds typically results. Basically there appears to be a positive feedback between bed capacity and number of beds used, which may create an inverse relationship where increased capacity increases demand rather than addresses it.39 Thus characteristics behind bed addition must be carefully analyzed before it occurs.

While the metric behind the need to increase bed occupancy is not standard, some research has suggested that a consistent level of 85% during measurements taken at midnight is the minimum level required before beds should be added.40 Note that the average “midnight census” typically calculates the minimum level of occupancy in a given day. The principle reason for this characteristic is the process of the “23-hour patient”. These types of patients are admitted in the morning and discharged in the late evening as a means to allow for evaluation of patients, yet avoiding unnecessary hospitalization. While estimating the difference between the midnight census and the actual occupancy is not universally deterministic most estimate a 5-15 absolute percentage point increase from the midnight census percentage value.40 However, it must be noted that the “23-hour patient” was a popular strategy in managed care, with the ebb and flow in the popularity of managed care it is difficult to estimate how significant this strategy will have in the future.

85% occupancy is the target more cited by professionals and in research, but this figure is typically applied universally not considering the size of the hospital and the number of people that seek medical services. Due to a lack of economies of scale and usage flows, smaller hospitals should have smaller target levels because they will typically have a smaller number of beds creating a greater sense of urgencies when facing greater than average patient visitation. For example if hospital A has 100 beds, an 85% occupancy utilizes 85 beds leaving 15 free; however, hospital B may only have 35 beds, an 85% occupancy utilizes 30 beds leaving only 5 free placing them in more danger for exceeding capacity on an above average admittance day.

Also there are some elements that must be considered including the difference between certified beds and staffed beds. Certified beds are those that are approved by authorities for use on a permanent basis and have been deemed to have sufficient staff to support its use where staffed beds are those that designated only for inpatient or day case care. One commonly suggested improvement to manage bed use is to establish a management program run by a “bed team” who would operate discharge, facilitate rapid turnaround of newly vacated beds, initiate ambulance diversion, and assign waiting patients to an inpatient bed.35 Unfortunately for most hospitals increasing the number of beds is not a viable option without a significant increase in funding, a result that is not forthcoming from state or Federal legislatures.

Another popular method that has been explored to improve ER crowding is the “fast track”. Broadly stated “fast track” is a system designed to process lower acuity patient quicker in order to increase bed turnover and reduce boarding.41 Individuals with injuries like superficial wounds, minor allergic reactions, small bone fractures and minor burns are typical fast track candidates. Interestingly enough fast tracking patient with minor injuries is not new and has been utilized by a number of ERs since the late 1980s.41 Due to this significant penetration fast tracking has been studied the most of any ER reform strategy and has demonstrated reductions in LOS and WT,42-44 yet almost all of this study has focused on LOS and WT and not whether or not patient safety outcomes are improved. One of the concerns with evaluating the efficacy of fast track is that there really is no standard evaluation protocol instead many hospitals have their own rules and criteria. While fast track proponents sing its praises, the overall ability to expand fast tracking is limited because most studies estimate fast tracking only encompasses 10-30% of the total patients seen in an ER and any gains seen when applying a fast track strategy only occur during peak hours.43,45,46

Unfortunately benefits from fast track only emerge when patients are discharged, not streamed through hospital admission.46 Also fast track benefits may be negatively impacted in the future because it largely depends on eliminating technological diagnostic procedures (blood tests, x-rays, CT scans, etc.) versus physical cues that can be evaluated by physicians. The need for diagnostic procedures will more than likely increase in the future as the number of elderly patients with more extensive health histories continue to increase in the future. This demographic change in ER population will not eliminate the advantages of fast track, but should reduce its rate of use limiting its usefulness. This additional testing will add to the already 60-70% of individuals who require laboratory tests when visiting an ER.47

While some strategies have been introduced to reduce testing time like pre-defined test panels for specific symptoms, faster laboratory transportation and early ordering,48 realistically testing takes time and little can be done about it. Some believe that the most useful strategy may be point-of-care testing (POCT) which involves moving laboratory analysis and tests to the ER. As expected undertaking a POCT strategy reduces WT and LOS through a reduction in turn-around time in the laboratory.48 However, a POCT strategy typically involves either large capital expenditure for hospital expansion or giving up space in other areas of the ER which may increase inefficiency and/or boarding for patients with more severe conditions due to a reduction in beds. The potential loss of some beds will be detrimental, but with reasonable expectation in the future for the expansion of primary care from general practitioners (when they eventually start to expand) and the increased need for laboratory services for elderly patients, currently preparation for and utilization of a POCT strategy seems beneficial overall.

A consideration for the increasing elderly population must be made in the scope of ER reform for all signs point to this increase continuing and accelerating. It is projected that demographically elderly patients will increase from approximately 15% to 25-35% of ER visits over the next 30 years.19 As previously mentioned elderly individuals typically require more time and resources for their medical care both on a logistics level (greater medical history) and a biological level (higher probability something can go wrong). Unfortunately there is also a side concern with the elderly. Typically seniors have fewer travel options than younger individuals and may have difficulty attending routine physical examinations (from general practitioners or the ER) even if appointments can be made. Therefore, this lack of option for travel can increase the probability that these elderly individuals put off medical care until it becomes critical creating a problem from nothing.

Another issue with the elderly is that nearly 25% of nursing home residents visit the ER at least once per year.49 Unfortunately a number of nursing homes tend not to promote good health, but instead attempt to simply keep their residence alive, thus those who are suffering from deteriorating health continue to have failing health. This “strategy” produces ER patients that are typically in poorer health than those elderly individuals who live on their own, about 67% of nursing home ER patients have cognitive impairment50 that complicate medical history collection and the nursing home records are rarely helpful. In fact 10% of nursing home ER patients arrive without any written medical documentation and 90% have significant gaps in their histories.51-53 Thus there is little coordination between ERs and nursing homes, largely because it appears that nursing homes do not care enough to apply the effort. However, ERs do need to be more diligent in ensuring that elderly patients across the board receive more clearly written instructions regarding their outpatient care.

Addressing current and future crowding in the ER will first require the development of a standard definition for quality and measurable components that encompass that definition because it is difficult to identify and classify problems when those problems cannot be identified. Independent government sponsored auditors, to ensure effective care and root out any problems quickly, should periodically evaluate these quality metrics. ERs should develop strategies to better manage beds through understanding real average occupancy values, not those taken from overnight values, to determine where there are excess beds and where/when bed demand is greatest. Finally it should be useful to study strategies that will increase the ability to manage elderly patients due to the logical expectation that their ER demographic will increase in the future. It stands to reason that areas with large elderly populations and quality ER service should have some effective strategies that can be applied to other ERs. Overall there are solutions that can be applied to the problem of ER crowding, but it is important that individuals ask the right questions and appreciate the change in future trends rather than declare simplistic panaceas like the incorporation of electronic health records.

Citations –

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24. Huang, J, et Al. “Factors associated with frequent use of emergency services in a medical center.” J. Formos. Med. Assoc. 2003. 102(4):345-353.

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Black Incarceration Rates: How Much Are They Driven By Racism?

It should be no surprise to anyone who has done their homework that the United States incarcerates the largest number of individuals per capita.1 It is also not a surprise that black individuals make up the largest single demographic percentage of these individuals significantly outpacing their per capita population relative to other race and ethnicities.1 Individuals when discussing the nature of the criminal justice system frequently cite statistics to validate this racial/ethnic disparity. Typically there are two types of responses by most individuals when exposed to these statistics depending on personal perspective: 1) Currently the criminal justice system is unfair to black individuals; 2) black people commit a disproportionate amount of the prosecuted crime. Interestingly enough most people seem to think that these two rationalities are mutually exclusive because rarely does anyone cite both when discussing how blacks and the criminal justice system interact. The question is which of these two rationalities is the chief governing factor behind the incarceration rate for blacks in the United States?

It would not be surprising if at this moment a number of the individuals who prescribe to the first school of thought taking offense to the very possibility of legitimacy for the second rationality, which goes to show the emotional reality of this issue. The chief problem with individuals who lament the number of blacks in prison is that they avoid asking whether or not those individuals actually broke the law and are in jail for legitimate reasons. While there certainly are individuals who have been denied justice and are incarcerated on fraudulent grounds for crimes they did not commit, the simple fact is that a vast majority of individuals, regardless of race or ethnicity, are in jail because they were appropriately convicted a crime.

Addressing the last sentence, realistically there are five explanations for the disparity between incarceration rates of blacks and those of other races/ethnicities:

1 - These individuals are actually committing crimes and are legitimately getting caught supporting the above contention that blacks commit a disproportionate amount of the criminal activity in the United States.

2 - Blacks only commit a small amount of the total crime in the United States, but are less able to conceal their criminal activity, thus their demographic is disproportionally represented in the incarcerated population versus the total number of crimes that are actually committed; this rationality supports neither of the above initial viewpoints.

3 - Bias actively leads the criminal justice system to pursue charges against crime committing black individuals versus crime committing individuals of other races and ethnicities when available evidence is significant in all scenarios supporting the position that the criminal justice system is currently unfair to blacks.

4 – Blacks receive unjustified jail sentences that exceed sentencing guidelines set forth for the associated committed crime supporting the position that the criminal justice system is currently unfair to blacks.

5 - A disproportionate percentage of jailed blacks are innocent of the convicted crime; whether racism played a role in that fraudulent conviction is unclear, but probable for a number of them supporting the position that the criminal justice system is currently unfair to blacks.

The third reason differs from the second reason because of the actions of the individual committing the crime relative to the actions of law enforcement agencies. For example the second reason could be invoked in a situation where a black individual shoots someone in the middle of a neighborhood with numerous witnesses available to testify where a non-black individual shoots someone in a private residence when there are no witnesses, thus there is significantly less evidence to promote an arrest or a conviction. The third reason could be invoked in a situation where the circumstances and scenario of the criminal behavior are similar, but law enforcement agents pursue charges against the black individual instead of the non-black individual. Of course a final point must be made in that for all reasons other than the last one the black individual did actually commit a crime, thus one should not argue that this individual is inappropriately incarcerated.

It is important to consider for the statistics that are frequently cited that suggest racism in the criminal justice system the lopsided nature of non-violent drug offenses. Individuals who use and/or sell illegal drugs make up the largest number of incarcerated individuals (for a specific crime) and it is this crime that produces the most significant portion of the disparity between incarcerated blacks and those of other races/ethnicities. Based on this disparity numerous individuals/groups have claimed that non-violent drug offenses are evidence of racism in the criminal justice system. Unfortunately for a vast majority of these individuals blindly citing the statistics is as far as they go in their analysis. Recall what Mark Twain once said, “There are three kinds of lies: lies, damned lies and statistics.” Without understanding the origins and the “why” behind the raw data that create the statistics, using statistics to argue for a certain perspective is inappropriate and foolish.

With regards to the issue of black incarceration rates a chief point is whether or not drug related crimes are bias against blacks (or to a larger extent minorities in general). However, it is up to those who believe this characterization to prove it; i.e. the burden of proof is on those individuals to demonstrate that drug laws are bias against minorities. There are certain issues that must be addressed by these proponents outside of simply citing statistics.

First, one must analyze whether or not minority users are being sent to jail due to a higher wrongful conviction rates than white users not just arrested at a higher rate despite the arrests being appropriate. To justify this conclusion one would have to conduct an analysis that demonstrated more aggressive incorrect convictions for minorities. For example in county A consider that there are 100 white and 100 black people, 80 black people are accused of violating drug laws with 75 being rightfully convicted and 5 being rightfully acquitted versus 40 white people being accused of violating drug laws with 37 being rightfully convicted and 3 being rightfully acquitted. In this scenario there is no racism as the conviction rates are similar, black drug use is simply higher than white drug use. In a county B consider that there are 100 white and 100 black people, 50 black people are accused of violating drug laws with 45 being rightfully convicted and 5 being rightfully acquitted versus 50 white people accused of violating drug laws with 5 being rightfully convicted and 5 being rightfully acquitted and 40 being wrongfully acquitted.

In the second scenario one would argue racism because the justifiable conviction rate is skewed so much in favor of blacks and typically whether or not an individual is guilty of a drug offense is rather simplistic (i.e. there is little room for subjective rationality or interpretation). Unfortunately those arguing racism must address the issue of unequal justice between economic classes. Despite the contrasting ideological belief in the judicial system, it is widely understood that empirically the poor receive less equitable treatment in the legal system than the rich and a larger percentage of minorities are poor. Therefore, to prove racism in the execution of drug-based court convictions one has to identify a wrongful conviction pattern and then untangle the web of bias between race/ethnicity and economic standing, a difficult task.

A second issue that must be addressed is analyzing the second and third points above by looking at how different races violate drug laws. For example initially when looking at the available information for marijuana arrest rates one could argue in favor of racism in that minorities are arrested at a disproportional rate than whites for drug possession despite similar usage rates, or even higher usage rates by whites (depending on what type of polling information is used). However, this accretion of racism hits a snag when considering how the crime is committed. Middle class and rich individuals, more often white, have resources available to them to make their illicit drug use more evasive than less wealthy individuals. It is inappropriate to suggest that a law is racist if one group has less ability to evade it than another group when there is no selective enforcement intent. Committing a crime in a public area and then being arrested and convicted for it cannot be viewed as selective targeting in any reasonable way.

A third issue that is imperative to making a claim of bias in the enforcement of drug laws is whether or not the law itself is bad. Unfortunately an argument that drugs laws are bad cannot be made as an element of necessity. Individuals that are convicted of various drug crimes are not akin to Jean Valjean stealing bread for his sister’s starving child. One does not need to consume various illicit drugs to survive nor does the consumption of these types of drugs produce unique positive effects that cannot be otherwise derived through legal means. It is also difficult to argue this point rationally on the basis of race with respect to stating that just because one group of individuals are convicted of a given crime that the crime is racist. If this logic were sound then one could argue that if a majority of individuals convicted of embezzlement were Jewish then embezzlement is a bias law.

Based on these three elements of that have yet to be proven one cannot accurately argue that drug laws are racist simply because a lot of black individuals are convicted. In reality a vast majority of black individuals commit a criminal offense involving drugs and are appropriately convicted for that violation. Perhaps one can attempt to rationally argue that certain drugs laws involving simple possession have too strict a penalty from a relative standpoint of their negative influence on society, but as it stands one cannot make that argument on grounds of simple racism or other bias.

That said it would be understandable to move from the issue of crippling bias in their execution, there is the question of whether or not drug laws carry the appropriate punishment. Setting aside mandatory minimums because most people misrepresent their application due to confusion between associated violence and quantity of drugs possessed, some argue that bias exists in habitual offender laws that mandate harsher sentences for repeat offenders. The problem with making this argument is that repeat offenders are not deterred from their criminal behavior by the same level of penalty or certainty of punishment previously accepted hence why they committed the crime again. Individuals commit crimes in order to produce some form of advantage in life. Most individuals either out of concern for the associated punishment or through general positive morality do not commit crimes. However, obviously some individuals are not concerned about the base severity of the punishment or its certainty because they actually engage in criminal behavior. Therefore, what should be the response if an individual continues to violate the law?

It is difficult to argue for the decriminalization or penalty reduction for certain laws simply because one demographic is unable to conceal their violation of those laws. However, some people seem to argue exactly that, but would that strategy actually solve the problem? While a number of minorities, including blacks, are incarcerated for drug crimes one particular demographic of blacks are missing from jail cells, well-off or rich blacks. Rarely does an upper-middle class or rich black person go to jail for simple drug possession, thus most of the blacks in jail for drug possess are low income. What happens to these individuals in a world where drug use is legalized? A number of addicts are unable to identify that they have a problem with drug use, therefore, if the law is unable to “reach” these individuals what will ever stop them from abusing drugs?

While it can be argued that certain laws, most notably some drug possession laws, could be better addressed by court ordered drug rehabilitation versus incarceration, individuals who reference the criminal justice system as racist tend not to make this suggestion. As mentioned above these individuals are so distracted by the number of black individuals in jail that they forget that a vast majority of them actually did break the law they are in jail for. A better strategy would be to decriminalize minor drug possession from any felony to misdemeanors forcing repeat violators to seek treatment or accept incarceration. Some argue for the exact system utilized by Portugal, but those individuals must understand the difficulty of this idea by appreciating the logistics difference between enforcement in the U.S., a country with over 300 million individuals, and enforcement in Portugal, a country with around 10 million individuals.

The best thing individuals can do to help drug users appears to have two prongs: 1) ensure the proper measures are available to identify improper drug use and assign these individuals to appropriate treatment arenas; 2) petition for the passage of a guaranteed basic income (GBI) to ensure that low income individuals have the resources to effectively recover and stay recovered from any drug addiction.

Overall drug law enforcement is not racist and because most of the prison demographic disparity occurs through drug laws, the disparity itself is not racist. If one wants to argue for a different way to respond to those who violate certain laws over simply throwing the individual in jail that argument needs to be done logically not through inaccurate over-emotional race baiting because while on a whole the criminal justice system is not perfect, blindly proclaiming it racist is foolish.

Citations –

1. Carson, A, and Golinelli, D. “Prisoners in 2012 – Advance Counts.” Department of Justice. July 2013.