Consider the data. A 2003 study of the racial impact of federal sentencing guidelines found that the imposition between 1986 and 2000 of stiffer penalties for drug offenders, especially cocaine traffickers, did not result in racially disparate sentences. The amount of the drug sold, the seriousness of the offender’s prior criminal history, whether weapons were involved, and other such valid characteristics of criminals and their crimes accounted for all the observed interracial variations in prison sentences.
Similarly, a 2001 RAND Corporation study of adult robbery and burglary defendants in 14 large U.S. cities found that a defendant’s race or ethnic group bore almost no relation to conviction rates, sentencing severity, or other key measures. In 1999, federal government statistician Patrick A. Langan analyzed data on 42,500 defendants in the nation’s 75 largest counties and found “no evidence that, in the places where blacks in the United States have most of their contacts with the justice system, that system treats them more harshly than whites.”
A 2001 study by Langan of black-white differentials in imprisonment rates demonstrated that “even if racism exists, it might explain only a small part of the gap between the 11 percent black representation in the United States adult population and the now nearly 50 percent black representation among persons entering state prisons each year in the United States.” An otherwise typically liberal-leaning 2003 National Academy of Sciences study voiced the same basic conclusion.
It is often asserted that the 1980s war on drugs resulted in a more racially “disproportionate” prison population. The data tell a different story. In 1980, 46.6 percent of state prisoners and 34.4 percent of federal prisoners were black; by 2000, 48.9 percent of state prisoners and 31.4 percent of federal prisoners were black. In 1999, the median time served in confinement by black violent offenders was 25 months, versus 24 months for their white counterparts. The mean sentence lengths were 116 months for blacks and 110 for whites, while the mean times actually served in confinement were 37 months for blacks, 33 months for whites. These small differences are explained by the fact that black violent crimes are generally more serious than white ones (aggravated rather than simple assaults, weapon-related crimes rather than weaponless ones).
Indeed, the evidence on the race-neutrality of incarceration decisions is now so compelling that even topflight criminologists who rail against the anti-drug regime, mandatory sentencing laws, three-strikes laws, and other policies with which they disagree are nonetheless careful to contend that racial biases are “built into the law,” are “America’s dirty little secret,” or constitute “malign neglect.” In other words, they do everything but challenge the proposition that blacks and whites who do the same crimes and have similar criminal records are now handled by the system in the same ways.
In this vein, liberal experts contend that the penalties for crack cocaine possession and sale are excessive compared with powder cocaine penalties. I concur. And liberals are also right that blacks are far more likely than whites to use and sell crack instead of powder cocaine. But they go badly wrong on two key counts. First, they feed the conspiratorial myth that federal anti-crack penalties were born of a white conspiracy led by right-wing Republicans. Go check the Congressional Record: in 1986, when the federal crack law was debated, the Congressional Black Caucus (CBC) supported it, and some CBC members pressed for even harsher penalties. A few years earlier it was CBC members and other Democrats in Congress who pushed President Reagan, against his considered judgment, to create the Office of National Drug Control Policy (better known as the drug czar’s office). And it was President Clinton who recently refused in no uncertain terms to change the federal penalty structure for drug crimes.
Second, liberal experts and advocates of drug legalization cloud the facts about who really goes to prison for drug crimes. As I and several other researchers have concluded, society gets little return on its investment in locking up low-level offenders who possess or even traffic in small amounts of drugs and commit no other crimes. But most drug offenders, both those behind bars and those who have served their time, do not fit that description.
As a recent study funded by the National Institute of Justice and other federal agencies acknowledged, in “an important sense the label ‘drug offender’ is a misnomer.” Few “drug offenders” are in prison for mere possession. In 2001, for example, only 2 percent of the 36,648 persons admitted to federal prisons were in for drug possession. Moreover, as for imprisoned drug traffickers, most have long and diversified criminal records—only their latest and most serious conviction offense is a drug-trafficking offense. Even in the much-maligned federal system, few convicted drug traffickers, whether they handle crack, powder cocaine, or pot, are black college kids or white white-collar types arrested on the interstate by a state trooper who found a small stash under the driver’s seat. The average quantity of drugs involved in federal cocaine trafficking cases is 183 pounds, while the average for marijuana traffickers is 3.5 tons.
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