Drug Arrests

The war on drugs precipitated soaring arrests of drug offenders and increasing racial disproportions among the arrestees. Blacks had long been arrested for drug offenses at higher rates than whites. Throughout the 1970s, for example, blacks were approximately twice as likely as whites to be arrested for drug-related offenses. By 1988, however, with national anti-drug efforts in full force, blacks were arrested on drug charges at five times the rate of whites.73 Nationwide, blacks constituted 37 percent of all drug arrestees;74 in large urban areas, blacks constituted 53 percent of all drug arrestees.75

Even greater disparities in drug offender arrest rates have been documented in individual states. For example, Human Rights Watch's analysis of drug arrests by race in the state of Georgia for the years 1990-1995 revealed that, relative to their share of the population, blacks were arrested for cocaine offenses at seventeen times the rate of whites.76 In Minnesota, drug arrests of blacks grew 500 percent during the 1980s, compared with 22 percent for whites.77 In North Carolina, between 1984 and 1989, minority arrests for drugs increased 183 percent compared to a 36 percent increase in white drug arrests.78

Drug Law Violations by Blacks and Whites

The marked racial disparities in drug arrests did not reflect racial differences in violations of drug laws prohibiting possession and sale of illicit drugs. Statistical as well as anecdotal evidence indicate drug possession and drug selling cut across all racial, socio-economic and geographic lines. Yet because drug law enforcement resources have been concentrated in low-income, predominantly minority urban areas, drug offending whites have been disproportionately free from arrest compared to blacks.

The Substance Abuse and Mental Health Services Administration (SAMHSA) of the U.S. Department of Health and Human Services calculates drug use trends from data gathered through the federal National Household Survey on Drug Abuse (NHSDA).79 In a report based on NHSDA data for 1991, 1992, and 1993, SAMHSA estimated that 3.1 percent of non-Hispanic blacks and 2.4 percent of non-Hispanic whites over the age of 12 had used cocaine in the past year. Because there are far more whites than blacks in the national population, these use rates translate into 3,727,680 non-Hispanic whites who had used cocaine compared to 720,130 non-Hispanic blacks.80 That is, there were five times as many non-Hispanic whites as blacks who were cocaine users.

According to the most recent NHSDA survey, in 1998 there were an estimated 9.9 million whites (72 percent of all users) and 2.0 million blacks (15 percent) who were current illicit drug users in 1998.81 There were almost five times as many current white marijuana users as black and four times as many white cocaine users. Almost three times as many whites had ever used crack as blacks. Among those who had used crack at least once in the past year, 462,000 were white and 324,000 were black.82 Only among current crack users did the number of blacks exceed the number of whites -- and this was a change from previous years in which the number of current white crack users had exceeded the number of black users (Table 17).83 SAMHSA also estimated that in 1998 there were 4,934,000 whites who used marijuana on 51 or more days in the past year, compared to 1,102,000 blacks, and 321,000 whites who had used cocaine on 51 or more days in the past year compared to 171,999 blacks84

The comparison of racial proportions of drug users and drug arrests in the period 1979 to 1998 reveals a markedly higher arrest rate of black drug offenders compared to both whites and to the black proportion of the drug using population (Table 18). The percentage of current drug users who were black and white did not vary significantly in this twenty-year period. Among those arrested on drug charges, however, the percentage of blacks rose markedly, and the percentage of whites decreased correspondingly. For each year, the percentage of black drug arrests was at least double the percentage of blacks among current drug users. Whites, conversely, were under-arrested; that is, they constituted a smaller percent of drug arrests than they did of drug users.

There are no comparable annual statistics on the estimated number and race of drug sellers nationwide. Nevertheless, such data as exists indicates whites constitute a far greater share of the drug selling population than of the population arrested for drug selling. For example, during the period 1991-1993, SAMHSA included questions about drug selling in the annual NHSDA surveys. Although the responses are best seen as a rough approximation of drug selling activity, they are nonetheless highly suggestive.85 On average over the three yearperiod, blacks were 16 percent of admitted sellers and whites were 82 percent. According to research on patterns of drug purchase and use in selected major cities, drug users reported that their main drug sources were sellers of the same racial or ethnic background as they were.86 A large study conducted in the Miami, Florida metropolitan area of 699 cocaine users (powder and crack) revealed that over 96 percent of the users in each ethnic/racial category were involved in street-level drug dealing, which again would suggest a racial profile of sellers that is comparable to that of users.87 General Barry McCaffrey has stated that drug transactions between youth are generally intra-racial, that is, youth tend to buy from sellers of the same race.88 ONDCP's former periodic report on drug trends, Pulse Check, also indicated a high frequency of intra-racial drug transactions, that is, that whites tended to buy from white sellers and minorities from minority sellers.89

Origins of Racially Disproportionate Arrests

To some extent, racial disproportions in drug arrests reflect demographic factors. Drug law enforcement is concentrated in large urban areas. Illicit drug use is also higher in large metropolitan areas.90 Since more blacks, proportionately, live in these areas than whites, black drug offenders are at greater risk of arrest than white offenders.91 But within metropolitan areas, politics and law enforcement priorities have determined how drug arrests would be distributed.

Within urban areas, the "major fronts" in the drug wars have been low income minority neighborhoods. With the spread of crack in the early 1980s, these neighborhoods suffered from the disorder, nuisance, and assaults on the quality of life that accompanied increased drug dealing on the streets as well as the crime and violence that accompanied the development of crack distribution systems. Dismayed residents in those neighborhoods pressed the police and public officials to "do something." But the residents' response was more than matched by the censure, outrage, and concern from outsiders that was fanned by incessant and frequently sensationalist media stories about crack, and by politicians seeking electoral advantage by being "tough on crime."92

Although crack was the least used of all illicit drugs in the U.S., and although more whites used illicit drugs than blacks (see Table 17, above), the "war on drugs" has been targeted most notoriously at the possession and sale of crack cocaine by blacks. Crack cocaine in black neighborhoods became a lightning rod for a complicated and deep-rooted set of racial, class, political, social, and moral dynamics.93 To the extent that the white majority in the U.S. identified both crime and drugs with the "dangerous classes" -- i.e., poor urban blacks -- it was easier to endorse, or at least acquiesce in, punitive penal policies that might have been rejected if members of their own families and communities were being sent to prison at comparable rates.94

Tactical considerations also encouraged the concentration of anti-drug resources in disadvantaged minority neighborhoods and the consequent disproportionate number of black drug offender arrests. Police departments point to the number of arrests as a measure of effectiveness. The circumstances of life and the public nature of drug transactions in low income urban neighborhoods make arrests far easier there than in other neighborhoods.95 In poor black neighborhoods, drug transactions are more likely to be conducted on the streets, in public, and between strangers, whereas in white neighborhoods -- working class through upper class -- drugs are more likely to be sold indoors, in bars, clubs, and private homes. "[I]n poor urban minority neighborhoods, it is easier for undercover narcotics officers to penetrate networks of friends and acquaintances than in more stable and closely knit working-class and middle-class neighborhoods. The stranger buying drugs on the urban street corner or in an alley, or overcoming local suspicions by hanging around for a few days and then buying drugs, was commonplace. Police undercover operations can succeed [in working and middle-class neighborhoods] but they take longer, cost more, and are less likely to succeed."96

Racial profiling -- the police practice of stopping, questioning, and searching potential criminal suspects in vehicles or on the street based solely on their racial appearance -- has also contributed to racially disproportionate drug arrests, although there are no reliable estimates of the number. In many locales, black drivers are disproportionately stopped for minor traffic offenses and then searched.97 Similarly, blacks and other minorities have been disproportionately targeted in "stop and frisk" operations in which police temporarily detain, question, and pat down pedestrians suspected of criminal activity. In New York City, for example, between January 1998 and March 1999, police officers made far more stop and frisks in minority neighborhoods; even within neighborhoods with primarily white populations, the majority of the people stopped were black or Hispanic.98

Other factors have also been important in increasing the relative rate at which black drug offenders are arrested compared to whites. For example, low income purchasers of cocaine buy the drug in the cheap form of single or several hits of crack. They must engage in far more illegal transactions to satisfy their desire for drugs than middle or upper class consumers of powder cocaine who have the resources to buy larger and longer lasting supplies. The greater frequency of purchases and sales may well affect susceptibility to arrest. 99

Although women accounted for only 6.5 percent of the total state and federal prison population at midyear 1999,100 the rate of incarceration of women has been growing twice as fast as that of men over the last two decades.101 Between 1990 and 1997, the female incarceration rate nearly doubled, increasing from 31 to 57 women in prison per 100,000 female residents.102 At midyear 1999 there were 87,199 women under the jurisdiction of state and federal correctional authorities.103

Racial disparities among incarcerated women are pronounced: black women were more than eight times as likely as white to be in prison in 1997.104 The incarceration rates for both black and white women have increased by approximately two-thirds since 1990.105

The war on drugs is responsible for the dramatic rise in the absolute number and rate of women incarcerated and, indeed, has had a greater proportionate impact on women than men. Between 1990 and 1997, the number of women serving time in prison for drug offenses nearly doubled, compared to a 48 percent increase in the number of men in prison for drug offenses.106

Between 1986 and 1996, the number of women incarcerated on drug charges rose by 888 percent, compared to a rise of 129 percent for non-drug offenses.107 In 1979, twelve percent of the women in state prison had been convicted of drug charges; by 1997, that figure had risen to 34.4 percent.108 Fifty-six percent of their convictions were for trafficking offenses and 44 percent were for possession.

Drug offenses accounted for more than two in five women admitted to state prisons nationwide (Table 19). The three states with the highest percentages of women sent to prison on drug charges were New York (68 percent), Washington (54 percent), and New Jersey (49 percent).

As with men, the impact of the war on drugs falls disproportionately on black women. Nationwide, 42.2 percent of all black women and 36.1 percent of white women admitted to prison in 1996 were convicted of drug offenses. Even in the states with the lowest percentages of female drug offender admissions, the figure is more than one in five (with the exception of Iowa). Black women constitute 6.3 percent of the national adult population and 7 percent of prison drug admissions; white women constitute 43.2 percent of the national adult population but only 5.4 percent of drug admissions. Black female drug offenders constituted a greater percentage of total admissions than white female drug offenders in half of the states that reported data to the NCRP (Figure 9).
72 Racial disparities in drug arrests account for the preponderance, but not all, of the racial disproportionality in incarcerated drug offenders. Indeed, Alfred Blumstein has found that the rate of imprisonment for drug offenses "is the most poorly correlated to the rate of arrests of all crime types." Based on 1991 data he concluded that blacks comprised 57.7 percent of the prisoners for drug offenses but only 40.4 percent of the arrestees for drug offenses, "so that they are overrepresented in prison by forty-three percent compared to arrest." Alfred Blumstein, "Racial Disproportionality of U.S. Prisons Populations Revisited," 64 University of Colorado Law Review 751 (1993). The precise reasons for the substantially different racial proportions among drug offender arrestees and incarcerated drug offenders disparity in arrest versus incarceration on drug offenses have not been established conclusively. The type of drug offenses (possession or sales), the type of drug and the existence of a prior record are all factors that affect sentencing.

73 Tonry, Malign Neglect, p. 111; Blumstein, "Racial Disproportionality." Blacks constituted 26.8 percent of all adult drug arrests in 1980 but 40 percent of those arrested on drug charges in 1990. The black share of drug arrests decreased slightly to 37 percent in 1998. U.S. Department of Justice, Federal Bureau of Investigation (DOJ/FBI), Uniform Crime Reports: Crime in the United States, (Washington, D.C.:USGPO, 1980, 1990, and 1998). Juvenile drug arrests followed a similar trend. Black youth comprised 14.5 percent of all drug arrests in 1980; in 1990 they comprised 48.8 percent of drug arrests. Data obtained from the Federal Bureau of Investigation; on file at HRW.

74 U.S. Department of Justice, Federal Bureau of Investigation (DOJ/FBI), Uniform Crime Reports: Crime in the United States, 1998 (Washington, D.C.:USGPO, 1998).

75 BJS, "Felony Defendants", Table 4, p. 5.

76 HRW, Race and Drug Law Enforcement in Georgia.

77 Tonry, Malign Neglect, p. 113.

78 Ibid.

79 The National Household Survey on Drug Abuse is the primary source of data on the prevalence of substance use in the United States. It was sponsored by the National Institute on Drug Abuse from 1974 to 1991. Beginning in October, 1992, responsibility for conducting the NHSDA was moved to the Office of Applied Studies within the Substance Abuse and Mental Health Services Administration of the U.S. Department of Health and Human Services. The NHDSA is conducted through questionnaires and interviews administered to large national sample, with oversampling in six metropolitan areas. The survey undercounts certain disadvantaged populations, e.g. the homeless, those in institutions, and those not in stable residences.

80 U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration (SAMHSA), Prevalence of Substance Use Among Racial and Ethnic Subgroups in the United States 1991-1993, Washington, D.C., 1998.

81 SAMHSA, Summary Findings 1998, p. 13.

82 U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration (SAMHSA), National Household Survey on Drug Abuse: Populations Estimates 1998, Washington, D.C., 1999. Table 5B and D.

83 According to the 1994 survey, for example, 292,200 whites were current users of crack cocaine compared to 161,000 blacks. U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration (SAMHSA), Population Estimates for 1994, Washington, D.C., September 1995, Table 5B and D.

84 SAMHSA, Population Estimates 1998, Tables 20 B, 20D, 21B, 21D.

85 Beginning in 1991, SAMHSA asked respondents in the household survey, whether they had sold any illicit drugs during the preceding year. One can assume that under-reporting on illegal conduct may be considerable and that withholding information would be more prevalent with regard to drug selling than drug use. We do not know, however, whether there would be significant differences between blacks and whites in their willingness to acknowledge drug selling. The responses must also be treated with caution because the NHSDA does not survey people living on the streets or in institutions.

86 K. Jack Riley, Crack, Powder Cocaine, and Heroin: Drug Purchase and Use Patterns in Six U.S. Cities, Washington D.C.: National Institute of Justice and the Office of National Drug Control Policy, December 1997.

87 Dorothy Lockwood, Anne E. Pottieger and James A. Inciardi, "Crack Use, Crime by Crack Users, and Ethnicity," in Darnel F. Hawkins, ed., Ethnicity, Race and Crime, (New York: State University of New York Press, 1995).

88 Patricia Davis and Pierre Thomas, "In Affluent Suburbs, Young Users and Sellers Abound," The Washington Post, December 14, 1997.

89 Office of National Drug Control Policy, Pulse Check: National Trends in Drug Abuse (Washington, D.C. various years). Pulse Check reported on illegal drug use trends based on information obtained form police, ethnographers, and epidemiologists working in the drug field. Publication of Pulse Check ended in the Winter of 1998.

90 According to SAMHSA's surveys, regardless of racial or ethnic subgroup, a relatively high prevalence of illicit drug use is found among individuals who reside in metropolitan areas with populations greater than one million. See SAMHSA, Prevalence of Substance. SAMHSA prepared estimates on drug use in twenty-six states and in twenty-five large metropolitan areas. Their data show that the percentage of population using any illicit substance within the past month in the 1991-1993 period was usually larger for metropolitan areas than for the states in which those areas were located. A high proportion -- generally between one third and one half -- of each state's drug using population was also located in metropolitan areas. In Texas, for example, half of all cocaine users were in four urban areas; in Florida, one third of cocaine users were in two urban areas. U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration (SAMHSA), Substance Abuse in States and Metropolitan Areas, Exh. 3.1 , 3.2, 3.3, and 3.5.

91 Only 14 percent of blacks live in non-metropolitan areas compared to 27 percent of whites. SAMHSA, Racial and Ethnic Subgroups. While 44 percent of Americans live in large metropolitan areas, 60 percent of drug possession arrests occur there. Patrick A. Langan, "The Race Disparity in U.S. Drug Arrests," unpublished report on file at HRW. Langan is a senior statistician with the Bureau of Justice Statistics.

92 Journalists portrayed crack use and crack-related crime as primarily problems of blacks in inner city neighborhoods. "Magazine photographs show young black American men and women smoking crack in abandoned buildings, minority youth with guns in their jeans, and handfuls of crack." Lockwood, Pottieger, and Inciardi, "Crack Use," p. 212. See also, e.g., Reinerman and Levine, "The Crack Attack."

93 The notorious distinction and heavier sentences mandated in federal law between crack cocaine versus powder cocaine, and the proportionally greater number of blacks prosecuted federally for crack and thus receiving heavier sentences than whites who are primarily prosecuted for powder cocaine offenses, have come to symbolize for many the racially discriminatory nature of the war on drugs. See United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy, 1995 for data on federal prosecution of crack versus powder cocaine offenses. No comparable national data exists on cocaine prosecutions in the ten states whose criminal laws distinguish between powder and crack cocaine.

94 Tonry, Malign Neglect. The country could have, for example, chosen an aggressive public health strategy to counter cocaine use in low income neighborhoods, as it did under President Richard Nixon in the 1970s when faced with a surge in heroin use. See Michael Massing, The Fix (New York: Simon and Schuster, 1998).

95 HRW, Race and Drug Law; Caplow and Simon, "Understanding Prison Policy."

96 Tonry, Malign Neglect, p. 106. See also Blumstein, Racial Disproportionality; Carole Wolff Barnes and Rodney Kingsworth, "Race, Drug, and Criminal Sentencing: Hidden Effects of the Criminal Law," 24 Journal of Criminal Justice 39 (1996).

97 See, e.g. David Harris, "The Stories, The Statistics, and the Law: Why `Driving While Black' Matters," 84 Minnesota L. Rev. 265 (1999); David Harris, "Driving While Black: Racial Profiling on Our Nation's Highways," An American Civil Liberties Union Special Report, June 1999. Available on-line at www.aclu.org/profiling/report.

98 Ronald H. Weich and Carlos T. Angulo, Justice on Trial: Racial Disparities in the American Criminal Justice System, a report by the Leadership Conference on Civil rights and the Leadership Conference Education Fund, May, 2000, pp. 4-5, citing "The New York City Police Department's "Stop and Frisk" Practices: A Report to the People of New York from the Office of the Attorney General," December 1999.

99 See Alfred Blumstein, "Youth Violence, Guns, and the Illicit-Drug Industry," 86 The Journal of Criminal Law and Criminology 10 (1995).

100 There were 75,241 women under jurisdiction of state correctional authorities, and 9,186 under federal jurisdiction BJS, "Prisoners in 1998," Table 7, p. 6

101 Marc Mauer, Cathy Potler, and Richard Wolf, Gender and Justice: Women, Drugs, and Sentencing Policy, (Washington D.C.: The Sentencing Project, November 1999). p.1

102 BJS, "Prisoners in 1998," p. 5.

103 BJS, "Inmates at Mid-year 1999."

104 Non-hispanic black women are incarcerated at a rate of 200 per 100,000, compared to the rate of 25 per 100,000 for white non-hispanic women. BJS, "Prisoners in 1998," Table 15.

105 "Prisoners in 1998," Table 12.

106 Ibid., "Prisoners in 1998," p. 11. There were 11,700 more women in state prison in 1997 on drugs charges than in 1990, representing 38% of the 30,600 total increase in the number of female state prisoners in that period.

107 Mauer, Potler, and Wolf, Gender and Justice, p. 2.

108 Lawrence A. Greenfield and Tracy L. Snell, "Women Offenders," Bureau of Justice Statistics, U.S. Department of Justice (December 1999).