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.
1. Carson, A, and Golinelli, D. “Prisoners in 2012 – Advance Counts.” Department of Justice. July 2013. http://www.bjs.gov/index.cfm?ty=pbdetail&iid=4737