Are changes needed in probation and parole (community supervision) protocols?

When the topic of prison is brought up most of the time the conversation focuses around the events that lead to an individual’s incarceration: the arrest and the trial. A significant amount of words and ink have been spent talking about the inequities of the system both on economic (still very true) and racial (becoming less true) grounds. In fact a number of individuals continue to argue the point that because minorities make up a disproportional amount of inmates relative to their population demographics, the criminal justice system is bias.

Unfortunately while these individuals are very quick to point to drug related criminal offenses as a significant reason behind this bias, conveniently forgetting that almost all of these individuals who are convicted of these crimes are guilty, these same individuals fail to discuss another important and pertinent issue that afflicts most poorer former criminals, the nature of probation and parole and its role in influencing the prison population. Instead of arguing at worst false or at best hard to prove bias, perhaps these individuals should turn their attention to addressing an actual problem demanding reform in the criminal justice system: the role and influence of probation and parole.

For the purpose of this discussion it must be noted that parole is a sub-category under the more broad designation: community supervision. Community supervision is commonly defined as allowing convicted criminals to serve sentences in the community where if no jail time is involved the supervision is more specifically referred to as probation and if it involves the early release from jail the supervision is referred to as parole. This is an important note because there are times when individuals use the terms community supervision and parole interchangeably, which is not entirely accurate. However, both probation and parole are inherently intertwined on a meaningful level.

When probation and parole is actually discussed, one of the central arguments for increasing its utilization is associated with the general per inmate costs associated with incarceration. It is not uncommon to hear some prison reform activists state at rote that incarceration costs per inmate are absurdly high with a national average exceeding $30,000, one study in particular calculated a cost of $31,286 per inmate.1 While on its face this number seems remarkably high and irresponsible, the problem with this figure is that while technically accurate it does not accurately portray the actual costs associated with prison.

For example that same study found that while $31,286 per inmate was the national average, in Kentucky it only cost $14,603 per inmate versus in New York it costs a whopping $60,076 per inmate.1 Remember that these are ratios, not absolute numbers so this radical disparity cannot be explained by simply stating that there are more people incarcerated in New York than Kentucky. So the question is why does such a disparity exist?

The simple answer is that most prison related costs are associated with two major categories: 1) capital and direct operational costs; 2) employee related costs like salaries and pensions, etc.; Unfortunately for the “prisons cost too much, thus laws need to be changed/nullified” crowd both of these elements have low rates of elasticity. This is one of the principal reasons why an inmate costs almost $46,000 more to house in New York than Kentucky, for the average cost of living in New York is much higher than Kentucky, thus prison officials and other employees command higher salaries as well as higher build and maintenance costs for the prisons themselves. So what is the response, significantly reduce the salary and/or benefits of New York based prison employees?

One might counter that the goal should be to significantly lower the prison population, but such a result should only have a marginal influence on prison costs. Due to the costs associated with employee salaries and benefits along with the nature of prison operation, costs should not drop in any type of meaningful proportional relationship with the resultant decrease of the prison population. While it is true that there would be fewer inmates, which should result in overlap of some employee duties in the prison system leading to firings, the reason for this lack of proportional change is due to two major realities: 1) the structured and static prison environment and its operation does not produce large quantities of employee overlap; 2) a number of prisons are already short-staffed meaning that reducing the prison population will reduce the level of burden for certain employees, but not employee related costs.

Therefore, for early inmate release to actually play a significant role in reducing costs associated with prison, the number would have to be large (double digit percentages), which would raise questions regarding who was being released and why. It is also worth noting that drug related offenses is estimated to make up about 17-20% of the total prison population (depending on exact definitions) down from a peak at 22% in 1990, thus decriminalizing minor possession drug offenses will do little to change the size of the prison populations.2,3

The failure of the economic argument does not dismiss the idea for the necessity of prison reform, especially in the area of community supervision. However, instead of trying to stretch an argument on an economic ground that is just not accurate, the argument should be from the perspective of social justice and morality. So what is it about these elements of community supervision, especially parole over probation for parole carries a more damning societal element than probation, that need reform?

One could make the argument that community supervision programs have already been widely utilized regardless of whether or not the motivation was to limit the inmate population for the “participation” rate has increased from 800,000 in 1970 to more than 4.75 million in 2013.4-6 Unfortunately this increase has not translated into a dramatic decrease in incarceration for it is thought that at least 1/3 of all inmates are incarcerated for probation or parole violations.4,5 However, it is important to note that these statistics are broad statistics and do not narrowly define why these individuals in community supervision eventually end up in prison. It is certainly valid to presume that some are incarcerated for routine violations of protocol whereas others have committed new crimes that results in a parole violation in addition to the criminal charges for the new crime.

To the point of the protocol violators, this raises another question of how much protocol violation is suitable? For example if an individual continues to skip meetings with a parole officer such behavior is an indication that this individual does not respect the process or even the most simple rules, thus it makes sense to anticipate an increased probability for future criminal behavior, thus violating this individual’s parole would be appropriate.

The benefits of parole for both the state/prison and the inmates are rather obvious: 1) parole can be a means to foster reflection and behavior change lowering the probability for negative actions while in prison and future recidivism once released from prison; 2) parole can act as a controlled means to reduce the prison population without significantly increasing the risk to public safety through who is released. However, while there are benefits the operational concerns with parole fall into two categories: 1) the process of receiving parole; 2) the process of maintaining good standing while on parole.

Parole boards are utilized to determine whether or not an individual is suitable for parole largely due to their focus and specialization to judge risk factors associated with probability to re-offend. In fact parole boards and parole itself support the idea of a more evidence-based methodology in the criminal justice system, especially with regards to sentencing (i.e. the use of risk assessment and comparative relationships and examples to help make decisions about sentences both in their initial assignment and their suspension).7

However, one of the interesting questions regarding the methodology of a parole board is the large focus on risk assessment, but almost no focus on value assessment. Basically parole boards are only judging potential negative outcomes born from the release of an individual, thus individuals with negative scores that are not negative enough, above some pre-determined threshold established by the board, have the possibility of receiving parole. However, all “scores” will be negative because no positive potential is significantly judged. What would happen to the number of paroles if parole boards analyzed what positive things the individual in question could do for the community?

Some have argued that parole boards have no incentive for changing the way they operate because there are no interpreted costs associated with how they operate.7 Basically there is no retention cost assigned to a parole board for the social and economic costs of continuing to incarcerate an individual and there is no reward given to parole boards for releasing individuals that do good things in a community. This lack of retention cost is thought to establish a very high bar to grant parole in normal circumstances because again the only thing that is assessed is whether or not an individual will produce negative outcomes for society when released on parole.

Another interesting aspect that is not commonly addressed with regards to parole is the idea of “lack of failure”. There almost appears to be a motivation to ensure that no parolee commits another crime. This motivation is completely unrealistic unless one attempts to so heavily limit the idea of paroles that only a handful of individuals ever receive it. Some would argue that is exactly what has happened. The motivation for granting parole must be willing to accept the fact that some parolees will commit new crimes in order to ensure a valid parole system. Otherwise without a valid parole system the idea of prison as a rehabilitation tool loses credibility because individuals who change and/or mature during their sentence and have higher probabilities of being productive members of society will still have to absorb the full cost of their previous criminal behavior. Also society misses out on the benefits that a number of these individuals could provide.

It must be noted that while attempting to measure benefits as well as risk is important, parole boards must never be forced to release a certain target or quota of inmates. Such a quota system would defeat the purpose of the evaluation process for it would force the parole board to change the system from an absolute judgment to a relative judgment. Basically the board would have to evaluate whether or not prisoner A was “safer” than prisoner B, not whether prisoner A was actually safe. It would be akin to a curve system in education where the top 10% of a class received As regardless of their actual performance, i.e. someone with a 55% in the class in the top 10% would receive an A even though 55% is certainly not A-level performance.

Of course with respects to the revocation of parole one can get distracted by statistics like 50% of individuals in U.S. jails and 33% in prisons are there due to parole or probation violation. However, while some may view these statistics with shock, it is important to note that what is not being asked is why are so many individuals on probation or parole violating the terms of that condition? Are the parole conditions too stringent/unreasonable? Do the individuals not have effective opportunities to “change their lives” once leaving prison? Are parolees just disrespectful of the law and the conditions of their parole? For example failing drugs tests are completely on the parolee for no one is forcing illegal drugs into their body. One study in 2004 determined that within thirteen states around 25% of those on parole were returned to jail for “technical” violations, so clearly some concern is warranted.5

One explanation for the reasons behind so many probationers and parolees going to jail is that various laws allow most states to impose broad release conditions upon parolees. Basically the one real criterion is that the condition governing the continued release must be less punitive than prison. Parolees can challenge conditions based on a perceived violation of constitutional rights, but a vast majority of court decisions have ruled in favor of the state under the premise that certain “rights” are diminished during the period of supervision.5 This and other “restrictions” of rights of former incarcerated criminals is certainly a continuing problem.

So what are the core problems regarding the parole structure? First, the procedure of granting parole appears to place too much emphasis on avoiding direct negative actions versus looking at what positives an individual can produce for society. This system limits the number of people that are able to “qualify” for parole. Second, it does not seem like there is a cohesive and universal system of requirements for parolees. The existing “pick-and-choose” system appears too restrictive and capricious. Third, there is too much discretion for parole officers in deciding what is a violation and what can “slide”. While it certainly can be argued that all violations are the responsibility of the parolee, it is certainly reasonable to have a transparent understanding of when a violation will actually be judged as violation and what will not. Fourth, when parole violations are recorded, a number of times the length of time taken to process the violation is unreasonably long resulting in longer temporary incarceration periods.

One of the principal questions regarding the state response to individuals on parole is what is the responsibility of the state to “ward off” or limit the probability that individuals commit new criminal activity? For example there are a number of situations where certain conditions of parole are tied to reasonable actionable risks associated with a particular individual, i.e. prohibitions on purchasing or possessing weapons for violent offenders, drug use for those on parole for drug related crimes, or interacting with known associates or suspected associates for past criminal activities in general. Clearly such restrictions are designed to limit the opportunity that an individual has to commit additional crimes after being paroled. However, are such restrictions appropriate? Interestingly enough whether or not these strategies actually reduce the probability of new crimes is almost irrelevant because none of the above restrictions are overly burdensome that if specifically and transparently assigned to the parolee, following these restriction would interfere with the individual living his/her life.

However, what about more board rules like curfews, alcohol consumption prohibition, required participation in educational and/or drug treatment programs or even clerical paperwork such as submitting financial forms to a parole officer? It can be argued that these more board rules do place an unjustified burden on the lives of the parolee especially in reference to how they influence the probability that said individual will commit new criminal action. For example will having to file a monthly income statement to a parole officer really stop individual A from engaging in future criminal activity, it stands to reason that the answer is no, unless the individual was convicted of some form of financial fraud.

Therefore such a condition does nothing, but add additional burden to the life of the parolee. Some studies have suggested that rehabilitative interventions, like drug treatment, can actually increase the probability that parole is revoked more than likely due to the addition of factors that can lead to parole being revoked.8 Whether these violations are born directly from the additional factors like drug treatment or increased scrutiny due to the participation in these factors is unclear.

Realistically it seems that the only genuine broad/generic condition that should be assigned to a parolee is a consistent meeting time between him/her and the appropriate parolee agent. Such a meeting should be used to provide a forum for discussion and counseling (in a sense) to provide the parolee with some level of support versus an interrogation or “visit to the principal’s office”. These meetings should also provide a forum for parolees to manage any issues associated with the conditions of their parole. Outside this meeting, broad rules seem not to have value and revoking parole should only involve purposeful abandonment of these meetings, any specific restrictions as discussed above due to previous criminal activity or the commission of new crimes. Eliminating these unnecessary “for societal security” restrictions should also eliminate some of the capaciousness of whether or not a particular parole violation is actually written up as a violation or not; limiting the number of restrictions gives weight to those remaining restrictions making their violation actually mean something.

Overall though it is important to note that while some attempt to link the rate of parole violations to improper parole rules and restrictions, a parole violation can occur for numerous reasons. It is certainly possible that a sanction is so restrictive that compliance is unlikely or that a sanction is applied inappropriately to a given candidate, but it is also possible that a large rate of parole violation is valid in that individuals are willingly violating parole due to their inability or disinterest in following the assigned restrictions and the corresponding parole officers are doing their jobs well and appropriately in violating parole for those individuals. While making direct “slippery slope” arguments in association with criminal activity is questionable, it is certainly reasonable to suggest that individuals who do not respect the law on the misdemeanor level, such as typical parole violations, will have less respect for it on a felony level as well. Therefore, it is important to understand why there are so many parole violations not simply react to the fact that there are so many as evidence that the system “doesn’t work”.

Some individuals argue that one factor that should have more weight on both awarding parole and revoking parole is the age of the individual. Age is thought to be the greatest influencing factor on criminal activity probability where the probability for criminal activity peaks around the mid-20s and then steadily drops as the individual ages, when all other factors remain equal. In addition the older an individual is the more difficult it may be for that individual to comply with various parole derived restrictions due to other occupational and familial obligations.

Furthermore in the vein of reducing probation violations a number of proponents like to point to a reform undertaken in Hawaii called the Hawaii’s Opportunity Probation with Enforcement (HOPE). These proponents seem to regard HOPE as a modern answer or improvement to a cumbersome system. HOPE proponents argue that in the past when criminals on probation for drug-related crimes would violate their probation the result would frequently be disproportionally slow to the gravity of the violation, thereby resulting in wasted state resources and undue burden on the parole violator. In HOPE the response to program violations, like drug test failures/skipped tests or missed probation/parole meetings, involves certain and swift responses typically a few days to a week in jail. Also HOPE proponents point to the initial arraignment period that is conducted through a large group in open court, which is thought to save time and money versus conducting individual arraignments.

One study, often cited by HOPE and other parole reform proponents, found that in a randomized controlled study HOPE probationers were 55% less likely to be arrested for a new crime, 72% less likely to use drugs, 61% less likely to miss appointments, 53% less likely to have probation revoked and on average sentenced to 48% less prison time than the control group.9 However, while proponents have sung the praises of this study to validate the superiority of HOPE over more conventional programs, there appear to be some valid criticism of the study.

For example there are questions involving the study over-emphasizing the influence of weak key elements and under-emphasizing other active elements producing bias in favor of the HOPE model; a failure to effectively control for other factors that may have lead to HOPE participants experiencing a lower level of criminal activity versus the control; focusing too much on the amount of criminal activity perpetrated by both parties (HOPE and control) instead of the type and severity of the criminal activity; finally incomplete analysis regarding the potential psychological influence of administering harsh sanctions like multiple days of jail for a few failed drug tests, but no other criminal action.10

Among these concerns is the issue of the validity of HOPE as a “panacea” for all areas experiencing the need for probation reform. For example HOPE includes a variety of somewhat small time offenders, i.e. sex crimes, property, assault, but the only real evaluation study is the aforementioned one on drug offenders. Also similar to the issue of psychological ramifications there is anecdotal evidence that suggests a number of non-violent HOPE probationers with no history of violent crime advanced to committing violent crimes perhaps due to the incarceration born from HOPE violations. Basically while HOPE probationers appear to commit less overall crime versus controls, there is a higher probability that a HOPE probationer will commit a more violent or “high-value” crime than a control.

Some proponents argue that these problems exist not due to a problem in the methodology and practice of the HOPE program, but instead due to a lack of resources to properly execute the methodology. Basically HOPE would work just fine if there were more police officers and judicial resources. However, this argument is rather hollow for clearly the resources to make the program work “just fine” are not available. Overall the HOPE program has a number of champions and a number of detractors in the Hawaiian government and justice system, thus looking to apply it to other regions of the United States as a practical means of probation reform appears premature.

There are certainly problems in community supervision protocols, but some might argue that over the past few years for when data is available, community supervision rates have steadily declined. Such a statement is correct for between 2007 and 2013 the number of adults under community supervision declined from 5,119,300 in 2007 to 4,751,400, a drop of approximately 7.1%.6 Most of this drop can be attributed to a drop in the number of probationers (about 95% of the total drop). However, the reason for this drop is unclear; are fewer people being punished without being put on probation or are more people simply being incarcerated?

In 2012 about 67% of states including the District of Columbia experienced a decrease probationers where Georgia, Michigan, New York and North Carolina accounted for 51% of the decrease; while 33% of states reported an increase in probationers where Washington, Ohio, Tennessee, and Idaho accounted for about 50% of the increase. Parolee population decreased slight in 2012 as well with the increase and decrease split between the states with Pennsylvania, Texas, and federal system accounting for 55% of the increase and California alone accounting for 72% of the decrease.11

A positive trend is that between 2008 and 2012 the rate of incarceration among probationers, regardless of cause be it new offense, revocation or other reason, has gradually declined from 6% in 2008 to 5.1% in 2012. It is important to note that the decrease from 2011 to 2012 was from 5.5% to the aforementioned 5.1%, so the 5.1% may not hold when the 2013 and 2014 data is analyzed and based on initial data the negative trend has held, but not the rate of decrease.11

Also it is unclear what has caused this decrease, budget cuts, more responsible probationer behavior, less inherent restrictions to violate, etc. A similar, but smaller trend, for a decrease in reincarceration was seen for parolees from 2007 to 2012 that flattened out in 2013, with a similar lack of reason why although California again drove the decrease for parolees. However, it is worth noting that most of this decline was seen from drops in revocation rates versus drops in new commission of criminal activity.

Also another short-term positive is that only 35% of those who become parolees did so through mandatory release from prison versus 54% in 2008, marking fourth consecutive year of decline.11 Not surprisingly discretionary release rose to 41% to account for some of this decrease in mandatory release.11

While the above information is positive, there is a concern that the trend is more dependent on the global recession that occurred in early 2008, which ravaged state budgets forcing more releases from prison and more creative “solutions” versus probation and parolee like fines and community service. Speaking to this concern is that although 2012 did see a decrease in community supervision, that decrease was smaller than the decrease in 2011 (i.e. the slope was positive) and this decrease shrunk again between 2012 and 2013.6,11 This result may be a blip in the trend or the start of a new trend due to state budgets normalizing having generally recovered from the recession.

Returning briefly to the question of are fewer people being punished without being put on probation or are more people simply being incarcerated, some believe it is the latter. This belief is based on the idea that for some unknown reason, maybe political or not, local district attorneys have become more aggressive at charging individuals with crimes that result in longer jail sentence, thereby making probation less likely.2,3

When looking at all of the issues surrounding the criminal justice system in the United States, one of the easier areas to make positive advances is in community supervision, especially for parole. One of the key areas of parole is a change in mindset with regards to its application in that the public must understand that no system is perfect, therefore, the goal should not be to completely eliminate the prospect of criminal activity from parolees, but reduce it through effective decision-making and management. A part of this effective decision-making is to apply appropriate restrictions on parolees based on their previous criminal history and perceived psychological acumen not a broad “one size fits all” mentality. Administering unnecessary and broad restrictions will more than likely produce more harm than good both for the community and the parolee. Overall while addressing the issues within community supervision will probably not produce the savings boon that various prison and criminal justice reformers seek for the criminal justice system, it would be important to serving appropriate and fair justice.


Citations –

1. Henrichson, C, and Delaney, R. “The price of prisons: What incarceration costs taxpayers.” Federal Sentencing Reporter. 2012. 25.1: 68-80.

2. Pfaff, J. “Waylaid by a Metaphor: A Deeply Problematic Account of Prison Growth.” Mich. L. Rev. 2012. 111:1087.

3. Pfaff, J. “The Myths and Realities of Correctional Severity: Evidence from the National Corrections Reporting Program on Sentencing Practices.” American law and economics review. 2011:ahr010.

4. Pew Center on the States. “State of recidivism: The revolving door of America's prisons.” 2011:2

5. Klingele, Cecelia. "Rethinking the use of community supervision." J. Crim. L. & Criminology. 2013. 103:1015.

6. Herberman, E, and Bonczar, T. “Probation and Parole in the United States, 2013.” U.S. Department of Justice. Bureau of Justice Statistics. October 2014. NCJ 248029.

7. Ball, D. “Normative Elements of Parole Risk.” 1/1/2011

8. Albonetti, C, and Hepburn, J. “Probation revocation: A proportional hazards model of the conditioning effects of social disadvantage.” SOCIAL PROBLEMS-NEW YORK. 1997. 44:124-138.

9. Hawken, A, and Kleiman, M. “Managing Drug Involved Probationers with Swift and Certain Sanctions: Evaluating Hawaii’s HOPE: Executive Summary.” Washington, DC: National Criminal Justice Reference Services. 2009.

10. Duriez, S, Cullen, F, and Manchak, S. “Is Project HOPE Creating a False Sense of Hope: A Case Study in Correctional Popularity.” Fed. Probation. 2014. 78:57.

11. Maruschak, L, Bonczar, T. “Probation and Parole in the United States, 2012.” U.S. Department of Justice. Bureau of Justice Statistics. December 2013. NCJ 243826.

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. http://www.bjs.gov/index.cfm?ty=pbdetail&iid=4737