Our research shows that blacks comprise 62.7 percent and whites 36.7 percent of all drug offenders admitted to state prison, even though federal surveys and other data detailed in this report show clearly that this racial disparity bears scant relation to racial differences in drug offending. There are, for example, five times more white drug users than black. Relative to population, black men are admitted to state prison on drug charges at a rate that is 13.4 times greater than that of white men. In large part because of the extraordinary racial disparities in incarceration for drug offenses, blacks are incarcerated for all offenses at 8.2 times the rate of whites. One in every 20 black men over the age of 18 in the United States is in state or federal prison, compared to one in 180 white men.
Shocking as such national statistics are, they mask even worse racial disparities in individual states. In seven states, for example, blacks constitute between 80 and 90 percent of all drug offenders sent to prison. In at least fifteen states, black men are admitted to prison on drug charges at rates that are from 20 to 57 times greater than those of white men. These racial disparities in drug offenders admitted to prison skew the racial balance of state prison populations. In two states, one in every 13 black men is in prison. In seven states, blacks are incarcerated at more than 13 times the rate of whites.
The imprisonment of blacks for drug offenses is part of a larger crisis of overincarceration in the United States. Although prison should be used as a last resort to protect society from violent or dangerous individuals, more people are sent to prison in the United States for nonviolent drug offenses than for crimes of violence. Throughout the 1990s, more than one hundred thousand drug offenders were sent to prison annually. More than 1.5 million prison admissions on drug charges have occurred since 1980. The rate at which drug offenders are incarcerated has increased ninefold. According to retired General Barry McCaffrey, director of the Office of National Drug Control Policy, the nation's war on drugs has propelled the creation of a vast "drug gulag." Drug control policies bear primary responsibility for the quadrupling of the national prison population since 1980 and a soaring incarceration rate, the highest among western democracies.
Human Rights Watch presents in this report original as well as previously published statistics that document the extraordinary extent to which Americans, and especially black Americans, have been burdened with imprisonment because of nonviolent drug offenses. We have conducted the first state-by-state analysis of the impact of drug offenses on the admission to prison of blacks and whites. (See Appendix for methodology.) The statistics we have compiled present a unique -- and devastating -- picture of the price black Americans have paid in each state for the national effort to curtail the use and sale of illicit drugs.
We have focused on the imprisonment of drug offenders at the state level because aggregate national data masks the remarkable differences among the states regarding the degree to which they put drug offenders in prison and the extent to which the use of prison as a penal sanction for drug offfenders is racially disproportionate. As discussed in this report, these substantial state differences are primarily the result of public penal policies and law enforcement priorities, not different rates of drug offending.
With this report Human Rights Watch seeks to bring renewed attention to extreme racial disparities in one area of the criminal justice system -- the incarceration of drug law offenders, i.e., persons whose most serious conviction offense is a nonviolent drug law violation. The high rates of incarceration for all drug offenders are cause for concern. But the grossly disparate rates at which blacks and whites are sent to prison for drug offensesraise a clear warning flag concerning the fairness and equity of drug law enforcement across the country, and underscore the need for reforms that would minimize these disparities without sacrificing legitimate drug control objectives.
Drug offenders in the United States face penal sanctions that are uniquely severe among western democracies. Drug sentences, even for those guilty of retailing or possessing small drug quantities, can compare to or exceed sentences for serious violent crimes such as armed robbery, rape, and even murder. Supporters of imprisonment for drug offenders insist it removes major traffickers and dangerous criminals from society, deters prospective offenders, and enhances community safety and well-being. Critics point to compelling data showing that few of the drug offenders who end up in prison are higher level dealers or traffickers and, indeed, that the prior criminal records of many incarcerated drug offenders are limited to drug offenses or consist of other nonviolent crimes. The massive use of imprisonment has failed to decrease the availability of drugs or raise their price, and adult drug use has not changed appreciably since the end of the 1980s. Most observers believe imprisonment has had little impact on the number of drug dealers on the streets. Even many police officials acknowledge that for every low level dealer incarcerated, another emerges to take his place. Moreover, according to an authoritative independent study of mandatory minimum prison sentences for drug offenders, such sentences are "not justifiable on the basis of cost-effectiveness at reducing cocaine consumption, cocaine expenditures or drug-related crime."
Prison is a legitimate criminal sanction -- but it should be used sensibly, justly, parsimoniously, and with due consideration for the principles of proportionality and respect for human dignity required by international human rights law. The incarceration of hundreds of thousands of low-level nonviolent drug offenders betrays indifference to such considerations. Moreover, many drug offenders receive egregiously long prison sentences, particularly because of the prevalence of mandatory sentencing laws for drug offenses that do not permit judges to calibrate sentences to the conduct and level of culpability of each defendant.1 Many factors -- the transformation of crime and punishment into key issues in electoral debates, the persistence of drug abuse, the desire to "send a message" and communicate social opprobrium, ignorance about drug pharmacology, and concern about crime, among others -- have encouraged politicians and public officials to champion harsh prison sentences for drug offenders and to turn a blind eye to the extraordinary human, social, and economic costs of such policies. They have also turned a blind eye to the war on drugs' staggering racial impact.
It is difficult to assess the extent to which racial bias or sheer indifference to the fate of black communities has contributed to the development and persistence of the nation's punitive anti-drug strategies. Certainly the emphasis on penal sanctions in the fight against drugs cannot be divorced from longstanding public association of racial minorities with crime and drugs.2 Cocaine use by white Americans in all social classes increased in the late 1970s and early 1980s, but it did not engender the "orgy of media and political attention" that catalyzed the war on drugs in the mid-1980s when smokable cocaine in the form of crack spread throughout low income minority neighborhoods that were already seen as dangerous and threatening.3 Even though far more whites used both powder cocaine and crack cocaine than blacks, the image of the drug offender that has dominated media stories is ablack man slouching in an alleyway, not a white man in his home. When asked to close their eyes and envision a drug user, Americans overwhelmingly picture a black person.4
Poor minority urban neighborhoods have been the principal "fronts" of the war on drugs. Massive street sweeps, "buy and bust" operations, and other police activities have heavily targeted participants in street level, retail drug transactions in these neighborhoods. Not surprisingly, comparably few of the people arrested there have been white. Racial profiling -- or the police practice of stopping, questioning, and searching minorities in vehicles or on the street based solely on their appearance -- has also contributed to racially disproportionate drug arrests, although there are no reliable estimates of the number. More blacks have also been prosecuted federally for crack offenses than white, and thus have disproportionately felt the effects of the higher sentences for crack versus powder cocaine mandated in federal law.5
Many Americans would agree that punitive drug policies relying on harsh penal sanctions would have been changed long ago if whites were incarcerated on drug charges at the same rate as blacks. It is deeply troubling that in the United States the political majority has maintained criminal justice policies that so disproportionately burden a racial minority, particularly when those policies coupled with felony disenfranchisement laws further politically weaken that minority.6 Politicians have been able more easily to reap the electoral advantages of endorsing tough policies because the group that suffered most from those policies -- black Americans -- lacked the numbers to prevail in the political arena.
Human Rights Watch fully acknowledges the public's legitimate interest in curtailing the abuse of dangerous drugs. But the importance of drug control should not be permitted to override fundamental principles of equal protection of the laws and racial equality. In an equitable criminal justice system, sanctions should be imposed equally on offending populations.
Under state and federal constitutional law, racial disparities in law enforcement are constitutional as long as they are not undertaken with discriminatory intent or purpose.7 International human rights law wisely does not impose the requirement of discriminatory intent. The International Convention on the Elimination of all Forms of Racial Discrimination (CERD), to which the U.S. is a state party, defines race discrimination as conduct that has the "purpose or effect" of restricting rights on the basis of race.8 It proscribes race-neutral practices curtailing fundamental rights that unnecessarily create statistically significant racial disparities even in the absence of racialanimus.9 It requires remedial action whenever there is an unjustifiable disparate impact upon a group distinguished by race, color, descent, or national or ethnic origin, even where there may be no intent to discriminate against that group.10 Under CERD, governments may not engage in "malign neglect," that is, they may not ignore the need to secure equal treatment of all racial and ethnic groups, but rather must act affirmatively to prevent or end policies with unjustified discriminatory impacts.
Assessing whether the severe impact of drug law enforcement on blacks is justifiable requires scrutiny of the drug war's goals and methods, and consideration of available alternatives. Human Rights Watch believes there are numerous policy alternatives to current patterns of criminal law enforcement that would reduce adverse racial disparities while continuing to respond to social concerns about public drug dealing and drug abuse. In the context of nationwide debates over the use of the criminal law to address drug abuse, doubts about the fairness and justice of enforcing those laws disproportionately against minorities take on even greater significance. It is hard to justify policies that result in the grossly disproportionate incarceration of a racial minority when there are feasible and cost-effective alternative approaches to address drug abuse and drug dealing that would not have such an effect.
Even if blacks and whites were sent to prison on drug charges at comparable rates, Human Rights Watch would still urge reconsideration of the heavy U.S. reliance on incarceration in its drug policies. In choosing strategies to address drug abuse and drug dealing, the country must consider the negative consequences of high incarceration rates, particularly in minority communities. No functioning democracy has ever governed itself with as large a percentage of its adults incarcerated as the United States. The direct and collateral consequences of imprisonment may be acceptable when violent offenders are put behind bars, but they are much harder to justify for nonviolent drug offenders.
In the poor urban minority communities from which most black drug offenders are taken, the high percentage of men and, increasingly, women sent to prison may also undermine their communities' moral and social cohesion. By damaging the human and social capital of already disadvantaged neighborhoods, the "war on drugs" may well be counterproductive, diminishing opportunities for social and economic mobility and even contributing to an increase in crime rates.11
The racially disproportionate nature of the war on drugs is not just devastating to black Americans. It contradicts faith in the principles of justice and equal protection of the laws that should be the bedrock of any constitutional democracy; it exposes and deepens the racial fault lines that continue to weaken the country and belies its promise as a land of equal opportunity; and it undermines faith among all races in the fairness and efficacy of the criminal justice system. Urgent action is needed, at both the state and federal level, to address this crisis for the American nation.
U.S. political leaders must acknowledge the excessive and racially disproportionate incarceration of nonviolent drug offenders and grapple forthrightly with ways to eliminate it. The first step is to reevaluate the current strategies for fighting drugs. Policy makers in each state, as well as in the federal government, should reassess existing public policy approaches to drug use and sales to identify more equitable but still effective options. In particular, they should examine the costs and benefits of relying heavily on penal sanctions to addressdrug use and drug trafficking and should look closely at law enforcement strategies to identify ways to make them more racially equitable.
We believe each state as well as the federal government should subject current and proposed drug policies to strict scrutiny and modify those that cause significant, unwarranted racial disparities. In addition, we believe the state and federal governments should:
* Eliminate mandatory minimum sentencing laws that require prison sentences based on the quantity of the drug sold and the existence of a prior record. Offenders who differ in terms of conduct, danger to the community, culpability, and other ways relevant to the purposes of sentencing should not be treated identically. Judges should be able to exercise their informed judgment in crafting effective and proportionate sentences in each case.
* Increase the availability and use of alternative sanctions for nonviolent drug offenders. Drug defendants convicted of nonviolent offenses should ordinarily not be given prison sentences, even if they are repeat offenders, unless they have caused or threatened specific, serious harm -- for example, when drug sales are made to children -- or if they have upper level roles in drug distribution organizations.
* Increase the use of special drug courts in which addicted offenders are given the opportunity to complete court supervised substance abuse treatment instead of being sentenced to prison.
* Increase the availability of substance abuse treatment and prevention outreach in the community as well as in jails and prisons.
* Redirect law enforcement and prosecution resources to emphasize the arrest, prosecution, and incarceration of importers, manufacturers, and major distributors, e.g., drug king pins, rather than low level offenders and street level retail dealers.
* Eliminate different sentencing structures for powder cocaine and crack cocaine, drugs that are pharmacologically identical but marketed in a different form. Since more blacks are prosecuted for crack cocaine offenses and thus subjected to the higher penalties for crack offenses that exist in federal and some state laws, the crack-powder sentencing differential aggravates without adequate justification the racial disparities in imprisonment for drug offenses.
* Eliminate racial profiling and require police to keep and make public statistics on the reason for all stops and searches and the race of the persons targeted.
* Require police to keep and make public statistics on the race of arrested drug offenders and the location of the arrests.
To facilitate more inter-state criminal justice analyses, the Bureau of Justice Statistics of the U.S. Department of Justice should annually compile and publish state-by-state statistics on the racial impact of the criminal justice system as it applies to drug offenders, including statistics on arrests, convictions, sentences, admissions to prison, and prison populations.
II. THE EXTENT OF U.S. INCARCERATION
In the year 2001, the total number of people in U.S. prisons and jails will surpass two million.12 The state and federal prison population has quadrupled since 1980 and the rate of incarceration relative to the nation's population has risen from 139 per 100,000 residents to 468.13 If these incarceration rates persist, an estimated one in twenty of America's children today will serve time in a state or federal prison during his or her lifetime.14
There is a considerable range in prison
incarceration rates among U.S. states (Table 1). Minnesota has the lowest
rate, 121 prisoners per 100,000 residents, and Louisiana the highest,
with a rate of 763. Seven of the ten states with the highest incarceration
rates are in the South.15 Almost every state
has a prison incarceration rate that greatly exceeds those of other western
democracies, in which between 35 and 145 residents per 100,000 are behind
bars on an average day.16 The District of Columbia,
an entirely urban jurisdiction, has a rate of 1,600.
1 See Human Rights Watch, Cruel and Usual: Disproportionate Sentences for New York Drug Offenders (New York: Human Rights Watch, 1997). Thirty two states have mandatory minimum sentencing laws for drug offenses. Bureau of Justice Assistance, "National Assessment of Structured Sentencing" U.S. Department of Justice (February 1996). Mandatory sentences are not responsible for all excessive drug sentences. In Oklahoma, for example, a jury in 1997 gave a sentence of 93 years to Will Forster, an employed father of three with no prior criminal record who grew marijuana plants in his basement.
2 Michael Tonry, Malign Neglect: Race, Crime, and Punishment in America (New York: Oxford University Press, 1995); David Cole, No Equal Justice (New York:The New Press, 1999); David Musto, The American Disease: Origins of Narcotic Control (New Haven, CT: Yale University Press, 1973).
3 See, e.g., Craig Reinarman and Harry G. Levine, "The Crack Attack, Politics and Media in the Crack Scare," in Craig Reinarman and Harry G. Levine, Crack in America (Berkeley: University of California Press, 1997)
.4 Barry R. McCaffrey "Race and Drugs: Perception and Reality, New Rules for Crack Versus Powder Cocaine," Washington Times, October 5, 1997 citing results of a survey published in 1995: Burston, Jones, and Robert-Saunders, "Drug Use and African Americans: Myth Versus Reality" in the Journal of Alcohol and Drug Education. Ninety-five percent of respondents pictured a black drug user while only 5 percent imagined other racial groups.
to the United States Sentencing Commission, 88.3 percent of federal crack
cocaine defendants were black. United States Sentencing Commission, Special
Report to the Congress: Cocaine and Federal Sentencing Policy, 1995, Washington,
D.C., 1995, p. 156. The sentencing laws of at least ten states also treat
crack cocaine offenses more harshly than powder.6
Human Rights Watch and The Sentencing Project "Losing the Vote: The Impact
of Felony Disenfranchisement Law in the United States," (New York:
Washington, D.C., 1998)
7 The requirement of proof of intent has been a formidable barrier for victims of discrimination in the criminal justice system seeking judicial relief. See, e.g., "Developments in the Law: Race and the Criminal Process," 101 Harvard Law Review 1520 (1988).
8 International Convention on the Elimination of All Forms of Racial Discrimination, Par. I, Article 1,3. In the Centre for Human Rights, Human Rights: A Compilation of International Instruments, Vol., ST/HR/1/REV.5 (New York: United Nations, 1994), p.66. Also available at http://www.un.org/Depts/Treaty/.
9 See CERD, General Recommendation XIV(42) on article 1, paragraph 1, of the Convention, U.N. GAOR, 48th Sess., Supp. No. 18, at 176, U.N. Doc. A/48/18(1993). See also, Theodor Meron, "The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination," 79 The American Journal of International Law 283, 287-88 (1985).
10 Committee on the Elimination of Racial Discrimination, General Recommendation on Par. I, Article 1 of CERD.
11 See Todd R. Clear, "The Unintended Consequences of Incarceration," (paper presented to the NIJ Workshop on Corrections Research, February 14-15, 1996).
12 Allen J. Beck, "Prison and Jail Inmates at Midyear 1999," Bureau of Justice Statistics, U.S. Department of Justice (April 2000).
13 Ibid.; Kathleen Maguire and Ann L. Pastore, eds., 1998 Sourcebook of Criminal Justice Statistics, Bureau of Justice Statistics, U.S. Department of Justice (1999), Table 6.36.
14 Thomas P. Bonczar and Allen J. Beck, "Lifetime Likelihood of Going to State or Federal Prison," Bureau of Justice Statistics, U.S. Department of Justice (March 1997).
15 In each of the twenty years since 1978 for which data is available, the South has had significantly higher incarceration rates than any other region. See BJS, 1998 Sourcebook, Table 6.37 .
16 The number of prisoners per 100,000 inhabitants varies worldwide from about 20 in Indonesia to about 685 in Russia. In Western Europe, the rate ranges between 35 in Cyprus and 145 in Portugal. Andre Kuhn, "Incarceration Rates Across the World," Overcrowded Times, April 1999, p.1. International rates of incarceration include prisoners awaiting sentences as well as all sentenced prisoners, whereas state prisons in the U.S. only confine convicted prisoners with sentences of more than one year. Therefore, the actual difference between foreign rates of incarceration and U.S. prison incarceration rates is even greater than suggested.