Eric E. Sterling
Criminal Justice Policy Foundation
September 16, 1998
Racial discrimination is unlawful and
morally repugnant. No business, school, facility of interstate commerce or other organization is
permitted to operate in a consistently racially discriminatory fashion. Those familiar with the
criminal justice system have long suspected -- if not been convinced -- that racial discrimination
and stereotyping infect decision-making and skew the outcomes. The largest category of cases
initiated by the criminal justice system is that of drug cases. An analysis of drug case processing
reveals a pattern of system-wide racial disparity adversely affecting black and Hispanic
defendants. This paper points out that this problem profoundly overshadows the well-known
problem of Federal crack prosecutions.
Federal Crack Prosecutions
Over the past decade it has become well-known that Federal crack cocaine
defendants are disproportionately black. Such defendants were 88.3%
African-American, 7.1% Hispanic, and only 4.1% white in FY 1993, a typical year (U.S.
Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing
Policy, Feb. 1995, Table 13.). Many observers blame this gross disparity on the 1-to-100
ratio of the quantities of crack cocaine versus powder cocaine that trigger Federal mandatory
The key fact is that most of the thousands of African-American crack
cocaine defendants are very low-level, if not the lowest level drug
traffickers (Ibid, Tables 17 and 18). Congress enacted the mandatory
minimum sentences in 1986 to assure that "the Federal government's most intense focus ought
to be on major traffickers. . .the heads of
organizations, who are responsible for creating, and delivering very large quantities of drugs."
(House Report 99-845, Part 1, pp. 11-12, Sept. 19, 1986) [emphasis added].
Yet only 5.5% of crack defendants, 9.2% of powder cocaine defendants, and 11.2% of all drug
defendants were high-level dealers (U.S. Sentencing Commission, Special Report to
Congress, Table 18). Every Federal prosecution is the result of investigative and
prosecutorial decisions by assistant U.S. attorneys, and DEA special agents. The thousands of
decisions to arrest and prosecute these low-level defendants instead of higher level traffickers
reflects the policies and practices of the U.S. Department of Justice. The triggering quantities of
the mandatory minimum statute were set improperly, but at every stage in the enforcement of the
statute, officials of the U.S. Department of Justice have known that they are not prosecuting
high-level traffickers as directed by Congress or in conformity with the National Drug Control
Strategy. For more than a decade, since Members of Congress started complaining to the
Attorney General about this discriminatory outcome, the Justice Department has prosecuted
predominantly low-level cocaine traffickers who are overwhelmingly black and Hispanic.
Cumulatively, these Justice Department decisions constitute a pattern or
practice of racial discrimination in the choice of targets -- a pattern or practice that has been
tolerated by the top management of the DEA and the U.S. Department of Justice, including the
Attorney General, and ultimately the President.
African-American Disproportionate Incarceration
In October 1995, The Sentencing Project reported the now common statistic that one-in-three
young black men is under correctional supervision or control (Marc Mauer and Tracy Huling,
Young Black Americans and the Criminal Justice System: Five Years Later, The
Sentencing Project, 1995).
It is well known that the American rate of incarceration is five to ten
times that of most European nations -- but most of that extraordinarily high rate is due to the
profoundly greater rates of incarceration of African-Americans, particularly drug defendants.
The rate of white incarceration in the U.S. is about 1.5 to 2 times greater than that of most
developed nations. Yet in ten states and the District of Columbia, blacks are incarcerated at a rate
more than 10 times the rate at which whites are incarcerated. Such states include Pennsylvania,
New Jersey, Illinois, and Texas. Nationally, blacks are incarcerated at a rate 7.66 times that of
whites (Marc Mauer, Intended and Unintended Consequences: State Racial Disparities in
Imprisonment, The Sentencing Project, 1997).
Racial Disparity in the Processing of State Drug Cases
Imprisonment has grown dramatically in the U.S., having tripled in the last 15 years. "Drug
policies constitute the single most significant factor contributing to the rise in criminal justice
populations in recent years, with the number of incarcerated drug offenders having risen by 510%
from 1983 to 1993. The number of black (non-Hispanic) women incarcerated in state prisons for
drug offenses increased more than eight-fold -- 828% from 1986 to 1991" (Mauer and Huling,
1995, p. 1). The rate of increase in black offenders imprisoned for drug offenses was more
than four times greater than the rate of increase for white offenders.
Percent Increase in New State Prison Inmates by Offense and
||% Increase 1986 to 1991
|(Marc Mauer, Intended and
Unintended Consequences, 1997, tbl 6, p. 10.)
The Unwarranted Disproportionality in Drug Cases
In considering the racially disproportionate treatment of African-Americans in drug cases, there
are three facts to bear in mind.
First, in general, African-Americans do not use drugs in greater
proportions than white Americans. According to the National Household
Survey on Drug Abuse measurement of illegal drug use in the past month, in 1988, 1992 and
1993, higher percentages of whites used drugs compared to black Americans. In 1991, and 1993
through 1997, blacks used drugs slightly more frequently than whites (Preliminary Results
from the 1997 National Household Survey on Drug Abuse, SAMHSA, U.S. Department of
Health and Human Services, Table 11, p. 73).
Second, white Americans are the overwhelming majority of drug users in America. In
1997, for example, there were 10.3 million whites who used illegal drugs in the past month, but
only 1.8 million blacks (Ibid. Applying the percentages of table 11 to table 1A). These
numbers have not substantially changed since 1988.
Third, at every level of the criminal justice system, African-Americans are arrested more
frequently and punished more harshly than white Americans. This third fact is the result of
government policies and actions. There is no legitimate justification for this fact. There is ample
"probable cause" to accuse the justice system of being racially discriminatory in the processing of
drug cases. (Arrest data for these categories are not reported for Hispanic persons.)
Drug Use Rates
The rate of drug use varies quite a bit by age and race. Younger whites
are typically more frequent illegal drug users than young blacks, but, among adults, a somewhat
higher percentage of black adults use illegal drugs compared to white adults. For legal drugs,
whites in most age groups are more likely to use alcohol and cigarettes than blacks. Only for the
oldest age group are blacks more likely to be cigarettes smokers than whites. Whites are for all
age groups more likely to be heavy or "binge" drinkers.
Percentage Reporting Past Month Drug Use
by Age Group and Race,
|Age in Years
| "Binge" Alcohol Use*
|  "Heavy" Alcohol Use*
*"'Binge' Alcohol Use is defined as drinking five or more drinks on the same
occasion on at least one day in the past 30 days. By 'occasion' is meant at the same time or within
a couple hours of each other. Heavy Alcohol Use is defined as drinking five or more drinks on
the same occasion on each of five or more days in the past 30 days; all Heavy Alcohol Users are
also 'Binge" Alcohol Users" (Preliminary Results from the 1997 National Household Survey
on Drug Abuse, Tables 19- 25, pp.82-88).
In 1994, young whites used crack cocaine 77% more frequently than young
blacks. 3.2% of the whites aged 18-25 used crack cocaine, but only 1.8% of the blacks in the
same age group (Letter from ONDCP Director Barry
McCaffrey to the Congressional Black Caucus, June 26, 1997). Black drug
users, in toto, constitute about 15% of the American drug using population
However, blacks are disproportionately arrested for drug offenses compared to their presence in
the drug using population. Well over one-third of all adults arrested for drug abuse violations
Drug Abuse Violation Arrests, 1992-1995 and number and percentage of Black
||Total # of Drug Arrests
||Total # of Drug Arrests Race
||Number of Black Drug
||(1992 1993 S'book, tbl 4.11, p.
||(1993 1994 S'book, tbl 4.11, p.
||(1994 1995 S'book, tbl 4.10, p.
||(1995 1996 S'book, tbl 4.10, p.
||(1997 1996 UCR, tbl 43,
(Sourcebook of Criminal Justice Statistics 1993, 1994, 1995 and
1996 tables on Arrests by Offense Charged, United States, 1992 - 1995.
Column A is the total arrests for drug abuse violations reported in the annual Uniform Crime
Column B is a lesser number, based on reports from those jurisdictions reporting data in these
*The number of Blacks arrested for drugs (column C) is actually greater than reported.)
Juvenile Drug Arrests
47% of all juveniles arrested for drug offenses in 1992 were black, 54% were white
(85,700 juvenile drug arrests. OJJDP Juvenile Offenders and Victims: A National Report,
1995, p. 100). It is noteworthy that from 1973 through 1980 the white arrest rate for drug abuse
violations was higher than the rate for blacks. The ten-year decline in youth drug arrests from
1975 to 1985 "can be attributed to a change in the rate at which juveniles, particularly white
juveniles, were arrested for marijuana offenses" (Ibid. p. 120). By 1992 the black
juvenile arrest rate for drugs was more than 5 times the white rate at more than 1100 per 100,000.
(Id.) However, according to the FBI, in 1996 black juveniles constituted only 36.2% of
the 158,161 juveniles arrested for drug offenses (FBI, Crime in the United States, 1996,
Table 43, p. 233).
In court, where outcomes are largely the result of decisions and actions by persons trained in the
law, it might be expected that black defendants would get "equal justice under law" without
regard to race. After all, judges regularly decide civil rights questions, public defenders are
attuned to the Bill of Rights, and prosecutors are enforcers of the law.
However, while blacks constitute about 38% of all those arrested, they now constitute 59% of
all those convicted, and 63% of those convicted of trafficking.
Rate of conviction for drug felonies in State courts (1992 and
|Percent of all convicted felons who were:
Table 5.46, p. 498)
(1996 Sourcebook, Table 5.51, p. 471)
There is no reason to believe that the evidence presented in court by
narcotics investigators against African-American defendants is stronger than the evidence
presented against white defendants.
Disproportion in All Federal Drug Prosecutions
In the Federal courts, drug cases account for 1/3 of the 60,000 cases
disposed of (1996 Sourcebook, Table 5.29, p. 450-1). Black and Hispanic defendants
are a disproportionately high percent of persons who are convicted of Federal drug offenses.
Federal Drug Defendants Sentenced, FY 1995, by Race
|Drug (Comm. Fac.*)
|(Sentences under the
Sentencing Guidelines, FY 1995)
(1996 Sourcebook of Criminal Justice Statistics, tbl 5.34, p. 456)
*The use of a communications facility of interstate commerce to violate the Federal drug law is a
separate offense, 21 USC 843(b).
The use of a communications facility drug offense and drug possession
offense (21 USC 844) both carry substantially lower penalties than
trafficking (21 USC 841). 98.2% of communications facility cases and 97.5% of possession cases
are disposed of by guilty pleas, the highest percentage for all Federal crimes but two, suggesting
that they are the result of plea negotiations. These cases may also be the result of negotiation
between the defense and the prosecution over which charges are indicted, as a way around
mandatory minimum sentences that can be easily triggered by small quantities involved in drug
Roughly one-in-five Federal drug suspects are not prosecuted by U.S.
Attorneys. Whether this number is disproportionately white was not reported (1996
Sourcebook, Table 5.16, p. 437).
State Drug Defendants: Blacks Sentenced More Frequently and to Longer Terms Than
Not only are blacks convicted more frequently, blacks convicted of drug
offenses get sentenced to prison at much higher rates than whites convicted of the same offenses.
On December 31, 1995 the number of white prisoners in Federal and State
correctional institutions was 455,021, while the number of black prisoners was 544,005. On the
same day, the number of whites on parole were 339,938 and the number of blacks was 299,721
(1996 Sourcebook of Criminal Justice Statistics, Imprisoned -- Table 6.26, p. 524; Parole
-- Table 6.52, p. 548).
Percent of those convicted of State felonies who get prison sentences
||% of Whites
||% of Blacks
(1995 Sourcebook, Table 5.50, p. 501)
More recent data was not provided in the 1996 Sourcebook.
Blacks who are sentenced to prison get longer sentences on average than whites sentenced to
prison for the same crimes. Black drug offenders get sentenced to almost one year more in
prison, on average, than white drug offenders.
Average maximum sentence length (in months) (1992)
||% longer than White
(1995 Sourcebook, Table 5.55, p. 504)
More recent data was not provided in the 1996 Sourcebook.
Although the Sourcebook does not provide data on the availability of drug treatment in
prison, compared by race; the granting of parole, compared by race; or the revocation of parole,
compared by race; it is hard to imagine that the disparity outlined above is any less.
Drug Cases: the Largest Category of Cases in the System
Drug cases constitute the largest of all categories of criminal cases as
measured by number of arrests. For 1996, for example, there were 1,506,200 arrests for drug
offenses compared to 729,910 arrests for all serious violent crimes (murder, rape, robbery, and
aggravated assault); 1,486,300 arrests for larceny and theft; 1,467,300 for driving under the
influence; and 1,329,000 arrests for non-aggravated assaults.
Drug arrest numbers dwarf arrests for all important classes of crime
including 364,800 arrests for burglary; 175,400 arrests for motor vehicle theft; 216,200 arrests for
weapons offenses; 95,800 arrests for sex offenses other than rape or prostitution; 465,000 arrests
for fraud; and 121,600 arrests for forgery and counterfeiting.
Drug arrests far exceed the number of arrests for every category of less
serious offenses (Federal Bureau of Investigation, Crime in the United States, 1996,
Uniform Crime Reports, Table 29, p. 214).
What happens in drug cases has an enormous impact on the criminal justice system, and what
characterizes drug cases is, at every stage, discrimination against African-American and Hispanic
Is it morally acceptable for society to tolerate racial discrimination as part of the price of fighting
For how long does a society committed to equal justice under law know about this race-based
disparity in treatment before committing itself to changing the laws and practices which yield
Is it morally acceptable or professionally ethical for members of the bar, members of the clergy,
journalists, public officials, health care
practitioners or drug abuse professionals to tolerate this disparity as
For how long does society fail to question the law enforcement managers,
prosecutors and judges whose policies, practices and decisions produce these results?
Eric E. Sterling
September 16, 1998
Eric E. Sterling is president of the
Criminal Justice Policy Foundation
1899 L Street, NW, Suite 500
Washington, DC 20036