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Colorblind justice: Why statistics prove otherwise

By Uendi Hajderaj

The sociopolitical progress of African Americans is as abundant, immense, and dynamic as the history of the United States of America itself. Forced into slavery for more than two centuries, it was their involvement in the American Civil War that would forever change the path of their future. Yet their progress to full and equal rights has been slow and painful. It had to be 100 years since the end of slavery for a Civil Rights Act and a Voting Rights Act, and another 50 years for an African American to take the highest office. Now, in the 21st century, political progress for African Americans is perhaps at the highest it has ever been. Yet, Thomas Sowell says, “the relationship between political success and economic success has been more nearly inverse than direct”. This has not been more apparent than in the criminal justice system. A domain desperately in need of reform, the racial disparity in the criminal justice system largely exacerbated by what is known as mass incarceration, represents one of the most pressing issues for black Americans.

Kalief Browder was only 16 years old when punished without trial to three years of prison- out of which, two in solitary confinement- for allegedly stealing a backpack, a charge with highly controversial evidence. He committed suicide not long after being released. Kareem Torain was 23 years old in 2001 when sentenced to 13 years of prison for drug possession, a crime he had pleaded unguilty for before being exonerated. He was arrested by a police officer, who would later be found guilty of fabricating a similar story about a black woman, and again for stealing money and drugs from a dealer’s apartment.[1] Freddie Gray was 25 when arrested for carrying a legal knife and then brutally killed by six police officers, who would later be suspended. The three of them had two things in common: they all lived in major cities highly represented by a black population and black law enforcement agents, and they all fell victim to a racially flawed criminal justice system that took their lives away.

Nothing has affected the mass incarceration of black defendants more than the 40-year long War on Drugs (WoD). Between 1980 and 2017, a time when the total U.S. population increased by less than 42%[2], the imprisonment rate soared by more than 1,000%[3]. Far from a crime epidemic, the cause was rather a tough-on-crime policy supposedly induced by unsafe drug use and abuse, shortly for War on Drugs.[4] [5] The policy goes back to the Nixon era, yet strictly reinforced since the Reagan administration and the resulting Anti-Drug Act of 1986, which not only lacked any pharmacological basis[6], but it was disproportionally penalizing towards African Americans, who comprised far the majority- around 80%- of those imprisoned under the mandatory minimum sentencing law. “[A] war on people of color”[7], it was far more waged in the poor black communities, making black people 6 times more likely to be arrested, and 13 times more likely to be sentenced compared to their white counterparts, despite numerous studies showing same rates of drug use among blacks and whites.[8] [9] As a result, this racially biased mass incarceration has led to a preventable prison overcrowding for nonviolent drug offenses, that at the end of the day not only overwhelms the criminal justice system, but leaves at least 1 in 9 black children with one or both parents behind bars[10], not to mention the disproportional denial of some of the crucial rights including voting, licensing, employment, business loans, child custody, student aid, and public housing.

Some believe racial bias in the criminal justice system to be a false narrative. They often rely on the argument that while black people represent only 13% of the U.S. population, they make around 35% of those imprisoned for drug convictions. Nonetheless, we tend to overlook the fact that black defendants happen to represent 55% of the drug crime exonerees as compared to 24% for white defendants. Therefore, while black people are disproportionally arrested, sentenced, and punished, they also happen to be disproportionally innocent and exonerated. Another point often ignored is that black people are more likely to get arrested and sentenced, not because they are more often involved in drug-related violations. In fact, white people are more likely to get caught for contraband of drugs and guns (34%) compared to black people (22%).[11] Black people simply fall victim to the systemic deficiencies of an impaired law enforcement that allows police officers to unequally stop, profile, search, and arrest on the basis of ‘looking suspicious’. The War on Drugs in itself and the exaggerated emphasis on results have inevitably led to an aggressive pursuit towards largely disadvantaged black communities. In 2013 alone, there were about 4.4 million arrests in New York City due to the stop-and-frisk policy; 80% of them were either black or Hispanic.

Ever since the War on Drugs was first made domestic public enemy number one, more than $1 trillion has been spent, over 45 million people have been arrested, and yet the use of illicit drugs remains the same. However, during the 1970s, around two-thirds of the total budget on WoD was committed to treatment and rehabilitation alone, while only a third was spent on law enforcement. A decade later, that legacy would be drastically reversed and provide an ineffective example of ever-rising budgets throughout the years. From 1988 to 2016 alone, the federal prison funding skyrocketed from nearly $1.5 billion to $7.5 billion, a fourfold increase.[12] If the purpose of this massive use of misguided resources was a drug-free society, then the mission was doomed to fail in the first place. The use of drugs- just as that of alcohol- is older than the constitution itself;[13]considering the complete and utter failure of the Prohibition, the government should know better. If it aimed at lowering drug use and abuse, well that mission has also failed. Drugs are still being consumed, sold, or trafficked at the same- or similar- levels as before; despite all the efforts, drug addiction rates have hardly changed[14], and- what’s more disappointing- overdose deaths have been consistently rising[15]. Yet there are more than half a million people in prisons for nonviolent drug offenses, many of whom- overrepresented by black people- are suffering unfair long sentencing subject to a faulty criminal justice system. All this not due to a national drug epidemic, but to national structural impediments affecting communities that lack prospects and equal opportunities, and hence are forced into an illegal economic market as the only way for survival.

There is an incentive to believe that mass incarceration driven by a frenzied WoD is politically motivated. From an economic standpoint, it improves unemployment numbers in two directions: 1) those prisoners looking for jobs prior to being convicted are now out of the unemployment statistics, and 2) a higher number of prisoners requires more people to maintain, run, or administer the prisons. Also, this effect happens to be mainly short-term, in which case it greatly helps score in political debates. A more direct link is with the private business. A higher number of inmates lifts the value of private prisons, making it therefore a profitable business. Adding to that the fact that the U.S. has the highest recidivism rate in the world- 76.6% within five years of release- certainly helps increase that value. Not to mention the fact that stats benefit not only the government but also the law enforcement authorities as well. It expands working hours and overtime on what was formerly unnecessary work, meaning higher salaries, and greater chances for promotion or accolades.

Nonetheless, it is imperative to acknowledge the failure of this year-long domestic war, and instead of going after the symptoms of the problems, to actually go after the real problem. Drug users and abusers are not the problem per se; they are the over-targeted victims of underfunded communities that are de facto denied equal opportunities. Hence, there is a need to address what seems to be a structural deficiency endemic in a criminal justice system built upon the principles of punishment, incapacitation, and deterrence.[16] Yet punishment may be unnecessary, and incapacitation and deterrence ineffective when minor drug offenses are concerned. Research has clearly shown that arresting minor dealers, couriers, or drug users will not reduce the use or abuse of drugs in the streets, because those people can be easily replaced. Instead, for incapacitation and deterrence to be effective, the drug kingpins need to get imprisoned and the drug networks dissolved. However, according to the U.S. Sentencing Commission in 2009, these high-ranking drug offenders made up only 11% of the total federal drug offenders, while around half of those imprisoned for federal drug crimes in the same year were mainly minor actors, including street dealers, mules, and couriers.

In a 2015 speech specifically addressed to the criminal justice system, President Obama said, “punishment simply does not fit the crime”. One year later, the Brennan Center would find that 39% of the 1.46 million people incarcerated nationally had committed penalties whose punishment should have been closer to doing community service. Drug law enforcement should be redirected towards tracing and fighting violent crime and serious drug trafficking, instead of arresting and jailing victims of drug use and abuse. They should focus on providing the necessary treatment, instead of putting them in prison with dangerous criminals that could further impair them as individuals upon release. Confidence needs to be restored in a criminal justice system that overrepresents black people. Accountability in law enforcement is indispensable to prevent abuse of authority, including unnecessary and unfair treatment towards the offenders. The denial of social rights needs to be reduced, and at best eliminated, to allow for an effective reintegration in the society, instead of a vigorous comeback to crime and violence due to the restrictions that such denials induce. But first and foremost, it is crucial to appropriately pair crime with punishment in order to minimize the detrimental collateral damage induced by unjust castigation.

Notes

[1] https://www.courthousenews.com/13-years-on-planted-evidence-man-claims/

[2] https://worldpopulationreview.com/countries/united-states-population

[3] https://www.sentencingproject.org/criminal-justice-facts/

[4] In 2018, more than 86% of drug violation arrests were for drug possession only. Close to 40% were attained for possession of marijuana.

[5] https://www.google.com/search?q=drug+conviction+rates&safe=active&sxsrf=ALeKk03hwTa3zPk659uAj7h37MJjoPtT0w:1596036046029&source=lnms&tbm=isch&sa=X&ved=2ahUKEwil2MnM4fLqAhXLiVwKHezGBacQ_AUoAnoECA0QBA&biw=1309&bih=717#imgrc=35ZWtvDAH9FnMM

[5] https://www.drugpolicy.org/sites/default/files/drug-war-mass-incarceration-and-race_01_18_0.pdf

[6] ACLU, Sentencing Project

[7] Report of 2013 by ACLU. Source: “The Presidency of Barack Obama”, edited by Julian E. Zelizer

[8] https://www.youtube.com/watch?v=xqvZRO2LPmw

[9] https://issues.org/the-effects-of-mass-incarceration-on-communities-of-color/

[10] https://www.justicestrategies.net/coip/blog/2017/05/children-incarcerated-parents-united-states-what-we-know-and-what-we-still-need-le

[11] https://www.sentencingproject.org/publications/black-lives-matter-eliminating-racial-inequity-in-the-criminal-justice-system/

[12] https://www.nationalpriorities.org/analysis/2017/militarized-budget-2017/

[13] http://www.druglibrary.org/schaffer/history/casey1.htm

[14] https://www.theatlantic.com/national/archive/2012/10/chart-says-war-drugs-isnt-working/322592/

[15] https://www.cato.org/publications/policy-analysis/four-decades-counting-continued-failure-war-drugs

[16] This system significantly differs from the European ones, which largely promote and implement rehabilitation as the main weapon towards the most effective reintegration in society.

Uendi Hajderaj is a graduate of LMU Munich with a degree in Business Mathematics. She has been writing articles for little more than a year, mainly on economic, political, and even social issues.

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