War on Drugs-Corrections

-Karen Michelle

We were wrong.

There is much about the narrative on the War on Drugs and corrections that cursory research led us to believe that ended up being wrong.

Here are some of the issues we assumed were true and found pretty convincing evidence to the contrary.

The War on Drugs caused Mass Incarceration

The “War on Drugs” is not the leading cause of incarceration

In fact, shocking statistics provided by John Pfaff indicate that “In reality, only about 16 percent of state prisoners are serving time on drug charges — and very few of them, perhaps only around 5 or 6 percent of that group, are both low level and nonviolent,” he writes. “At the same time, more than half of all people in state prisons have been convicted of a violent crime.”

And By the numbers, Pfaff is correct: The latest data by the US Bureau of Justice Statistics shows that in state prisons, where about 87 percent of US inmates are held, nearly 53 percent are in for violent offenses (such as murder, manslaughter, robbery, assault, and rape), while only about 16 percent, as Pfaff said, are in for drug offenses.

Jail Churn

Jail Churn is not taken into consideration in many studies and statistics regarding incarceration rates.   Every year, 626,000 people walk out of prison gates, but people go to jail 10.6 million times each year. Jail churn is particularly high because most people in jails have not been convicted, only arrested. Some have just been arrested and will make bail in the next few hours or days, and others are too poor to make bail and must remain behind bars until their trial. Only a small number (150,000 on any given day) have been convicted, generally serving misdemeanors sentences under a year.
So while the war on drugs has resulted in an incredibly high number of drug possession arrests, those arrests, do not translate into proportionate increases in imprisonment.  

Incarceration
Local jails– There are 731,000 people in local jails.
20,000 are in jails for drug possession convictions
66,000 are in jail awaiting dispensation of their cases, but have not been convicted.  (A part of the churn)
State Prisons – 1.3 million in prisons.
200,00 on drug charges 15%

45,000 on possession charges. 3.5%
Federal Prisons
225,000 in system

82,000 (36% of the total) are convicted of drug offenses. Almost all of these involve drug trafficking
18,000 held by Marshalls awaiting dispensation.

247 convicted of possession. A little more than one in one thousand.

There is an important thing to consider regarding possession charges. While the numbers are much smaller than many narratives suggest, each number is a person. Being charged with a felony is a life altering thing and that charge can haunt and limit someone the course of their life. Many Democrat and Republican lawmakers agree that low level marijuana users are not the target of the criminal justice system, but still, way too many states charge marijuana possession as a felony.

Right now, Across the country, 10 states and Washington, D.C., have removed felony possession of marijuana from their books. Eighteen states have gone as far as to remove criminal penalties for small amounts of marijuana entirely. Others, such as Colorado, have legalized possession and use of small amounts of marijuana. But there are several states that still penalize even a small amount of possession as a felony; the states where this is an issue are Arizona (95% of possessions according to the federal sentencing commission  are from AZ), OK, FL and TN. Charging a “simple possession” (legal term) as a felony creates much more chance for recidivism.

:However, one thing to consider is that the median weight of a “simple possession” was 48 lbs-these were all border arrests in AZ.The median amount for non-border arrests for simple possession were 2.oz
With 247 in Federal prison and 98% of these arrests coming at the border, you have roughly 4 people in the entire federal system that are non-border arrests.  Though we couldn’t find that data, likely they had a prior offense.

Mandatory Minimums are the Problem

Mandatory Sentencing guidelines are often cited as one of the main issues affecting the incarceration rate and the War on Drugs. While there is truth embedded in that supposition, there are also several oft cited reports that take the information out of context.

First of all, what were the initial goals of mandatory sentencing?

They really became a thing under the Anti-Drug Act of 1986. This bill was sponsored by a democrat-Rep. James C. Wright Jr. 200 Democrats, 100 Republicans and 1 independent. So, that may seem surprising because it doesn’t fit the narrative, but one of the goals of minimum sentencing, along with the typical ideology of deterrence (The rat head on a stick concept), there was also a goal of stopping racial disparity.

From a Democrat point of view, part of the goal behind the guidelines (and the presentation of the bill) was the Savings and Loan crisis and the fact that these white collar criminals were getting a slap on the wrist.

Unfortunately the opposite effect was created.

Mandatory guidelines create many issues including:

1. Judges can’t consider the facts of each case.

2. The type and weight of a drug primarily determines sentence length.

3. They remove checks and balances.

4. They encourage and reward those who inform on others.

5. Conspiracy laws make those at the top of the drug trade and low-level offenders equally culpable.

6. Low-level offenders often get longer sentences than high-level dealers.

Obviously these are issues that can have devastating effects on people.

But it is important to note a couple of things.

-The trend is shifting downward:

Less than half  of all drug offenders sentenced in fiscal year 2016 were convicted of an offense carrying a mandatory minimum penalty, which was a significant decrease from fiscal year 2010 when approximately two-thirds of drug offenders were convicted of such an offense. In fact, the number of offenders convicted of a drug mandatory minimum penalty has decreased by almost 45 percent since 2010, falling from 15,831 offenders to 8,760 such offenders in fiscal year 2016.

-While fewer offenders were convicted of an offense carrying a mandatory minimum penalty in recent years, those who were tended to be more serious.

• Convictions for offenses carrying a drug mandatory minimum penalty were more likely to involve the use of a weapon, Similarly, convictions for offenses carrying a drug mandatory minimum penalty were also more likely to have resulted in bodily injury.

• Offenders convicted of such offenses were also more likely to have played a leadership role.

Mandatory Sentencing Guidelines bring us to another important idea in the conversation about Criminal Justice Reform

The War on Drugs is really a war on Race

Our overall belief as we began research on this subject that the biggest problem of the war on drugs was racial disparity. In the micro and in certain areas, this is true-but the numbers do not bear it out in the macro.

Much of today’s criminal justice “war on drugs” narrative stems from a book by Michelle Alexander titled “The New Jim Crow”. In the book, Alexander cites a multitude of statistics that highlight the racial disparity in the Justice system. When it comes to policing, profiling based on racial basis has led to arrests that wouldn’t have occurred otherwise.

The “war on drugs” opened the door to abuses of power that disproportionately affect minorities. One of those ways was the application of mandatory sentencing. When the sentencing guidelines went into effect, crack and cocaine use was at its highest rates. Most reports and articles we found regarding drug policy cite a drug survey from 2012 that show that cocaine usage is more prevalent in white communities than black.

Our question was-what about the research that was being utilized at the time mandatory sentencing was devastating black people?

Some of the answers were found utilizing national drug surveys and usage indexes listed in a Harvard study. Indexes had trouble tracking actual usage, but found crippling effects within black communities and a lack of those same effects on whites. With the rise of crack cocaine, from about 1985-1995 African American communities, specifically in cities dealt with a significant rise in homicide, drug expose birth effects, and incidences of foster care. Statistics also indicated that usage was much higher among people of color at that time than statistics newer reports cite. It would be unfortunate, in the effort to drive a specific narrative, that we overlook societal needs that drove drug use. There is no question that disparity exists, but perhaps not where we think it does.

Is it possible that drug policy at that time was driven to solve a problem without regard contextual racial issues and inadvertently created a disparity that as efforts have been made to correct the problems, just increased that injustice?

Thankfully, sentencing reform in 2010 eased much of the problem, but there are still corrections to make regarding criminal drug policy efforts from the 80s and 90’s

There is no question that people of color and different races are left behind in the legal system-and this is seen in many areas. But to ignore the root factors that shaped each specific drug policy and just call it systemic racism without utilizing a scalpel to truly reveal each separate  issue may just be an obstacle to real solutions.

The Problems that aren’t Discussed

One of the problems often looked over in the Criminal Justice discussion is that the system is more of a network of subsystems. What may indicate racism and abuse of power in one county may not exist in the other. Reform MUST begin at the local level.

Prosecutors and Power


Prosecutors, along with other criminal justice agencies, have contributed to the drastic drop in crime over the past 20 years. Among other things, violent crime has fallen by almost half since its peak in 1991, and property crime is down 44 percent. It is truly remarkable how much safer the country has become since the crime wave of the 1980s and 1990s. Unfortunately, as we become tougher on crime, crime rates were dropping and we didn’t recognize it.  With more police and prosecutors, and fewer crimes, prosecutors become much more aggressive in charging defendants. This obviously resulted in longer sentences.

But the policy response to the crime epidemic has yielded an unintended consequence. The United States has more than tripled its incarceration rate over the past four decades.Thirty percent of Americans now have a criminal record.

Also, Prosecutor’s decisions to cut plea deals is one of the areas where race becomes a huge factor. Research definitely indicates that people of color get fewer and worse plea bargains.

Some of the other issues are that Prosecutors want to achieve the goal of appearing hard on crime so they push convictions, and astoundingly, there is a contingency reward system in place for some prosecutors-bonus or in-house rewards based on conviction rate. With all this to consider, it is no surprise that prosecutor discretion is an often greatly underestimated in increased incarcerations=

Pfaff, who penned the groundbreaking book that shattered the War on Drugs narrative offers a tentative menu of options to limit prosecutorial power: establish guidelines for charging and plea bargaining, which New Jersey has already done; make prosecutors pay from their county budgets for the bed space they use in state prisons; and provide more funding for public defenders. And, last but not least, attack public complacency. In 46 states, prosecutors are elected — and 85 percent of them run without opposition.

Probation

Probation seems like a much better option that incarceration, but often it can become a trap. Probation is another area where racial disparity is at its zenith.

– African Americans were on probation at almost 3 times the rate for Whites.

-one study consistently found disparity in probation revocation outcomes to the disadvantage of black probationers. In all four study sites, black probationers experienced probation revocation at significantly higher rates than white and Hispanic probationers.

Revocation rates for black probationers in this particular study sample ranged from 55-100 percent higher than that of white probationers. The study could not account for disparity causation and indicated that bias is the likely cause.

-Probation fees are often overwhelmingly burdensome on already impoverished people.

HOWEVER-The War on Drugs did not leave a significant long term change in probation rates. From 1990 rate of  2,670,000 to a 2000 rate of 3,800,00, the number of probationers shifted 43%.

From 2000-2016 The numbers actually shifted downward with the highest rates 2006-2008.

The accepted narrative that the war on drugs caused the great spike in incarceration rates is not nearly as clear as people think. Many studies say that it did.  But drug offenses are not close to the leading cause of incarceration in this country. An overall tough on crime reaction to an increase in violent crime in the 80’s and 90’s played a much bigger role.

There are so many problems within the subsystems of Criminal Justice that need to be addressed. I think it is possible we are all focusing on bigger issues that are much more difficult to solve than making some common sense reforms that could make a big difference. We also need to recognize the strides that have been made and utilize some of the outside the box solutions like drug courts.

The main lesson that I learned from this research is that facts don’t always bear the weight of my emotional response to injustice. I can’t get all my information from the most popular studies and I always have to dig deeper to see the whole picture.

I have talked before about my faith informs me to try to not attribute bad intent. What if we tried to apply that here? If we assume everyone is trying to solve a problem instead of demonizing those that don’t try to solve them our specific way, perhaps we could find some points of convergence and get some important stuff done.

Sources:

Brookings study

Privatization of Prisons

History: https://itep.org/wp-content/uploads/pris1.pdf

Mass incarcerations

Pie chart:https://www.prisonpolicy.org/reports/pie2018.html

https://www.themarshallproject.org/2017/02/09/everything-you-think-you-know-about-mass-incarceration-is-wrong

http://www.drugpolicy.org

https://www.aclu.org/other/race-war-drugs

Corrections and the poor

https://www.prisonpolicy.org/reports/income.html

BJS statistics Inmate survey

https://www.bjs.gov/content/pub/pdf/sisfcf04_q.pdf

Racial disparity shrinking

https://www.washingtonpost.com/news/wonk/wp/2016/02/10/almost-nobody-is-paying-attention-to-this-massive-change-in-criminal-justice/?utm_term=.2ef220d769bf

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Quick_Facts_Crack_Cocaine.pdf

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Methamphetamine_FY16.pdf

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Heroin_FY16.pdf

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Marijuana_FY16.pdf

Economics of private prisons:

https://www.brookings.edu/wp-content/uploads/2016/10/es_20161021_private_prisons_economics.pdf

Full War on drugs synposium

Prosecutorial Power

https://www.theatlantic.com/politics/archive/2016/05/are-prosecutors-the-key-to-justice-reform/483252/

https://www.brennancenter.org/publication/federal-prosecution-21st-century#Executive%20Summary

Incentives:

https://www.americanbar.org/content/dam/aba/publications/criminal_justice_magazine/fa11_Ethics.authcheckdam.pdf  

VOX: Locked in

https://www.vox.com/policy-and-politics/2017/5/30/15591700/mass-incarceration-john-pfaff-locked-in

Sentencing

https://www.ussc.gov/research/research-reports/report-glance-federal-simple-drug-possession

Federal drug possession.

Sentencing:

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20171025_Drug-Mand-Min.pdf

Anti-Drug Abuse Act:

https://www.congress.gov/bill/99th-congress/house-bill/5484

Human Toll

https://www.hrw.org/report/2016/10/12/every-25-seconds/human-toll-criminalizing-drug-use-united-states

Simple Possession

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2016/201609_Simple-Possession.pdf

Harvard Crack Study

https://scholar.harvard.edu/files/fryer/files/fhlm_crack_cocaine_0.pdf

Probation Fees

https://www.bjs.gov/content/pub/pdf/tsp00.pdf

Probation and Disparity

https://www.bja.gov/Publications/PleaBargainingResearchSummary.pdf

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s