Table 12.  Selected States With Largest and Smallest Disparities Between 1995 Black and White Arrest Rates for Opiate/Cocaine Possession.
(minimum one million coverage population)

Note:  Rates are per 100,000 population.

Table 14 provides more specific data on counties that had at least 100 opiate/cocaine possession arrests and had a black population of at least 1,000.  The high arrest rate for blacks in Minnesota reported in Table 13 is reflected here with more specific data on Hennepin County in the Minneapolis-St. Paul metropolitan area, where the black arrest rate of 1,830 is 62.47 times higher than the white rate for opiate/cocaine possession of 29.  Adding further emphasis to the apparent preference for arresting minorities in Minnesota, the arrest rate for American Indians was 165, over five times the white rate.  The dominant trend in Table 14 is that even where the white arrest rate is relatively high, the black rate is several magnitudes higher.  For example, in Cuyahoga County (Cleveland), OH the arrest rate for whites is 241 per 100,000, but the rate for blacks is 2,493, higher by a magnitude of 10.33.

The disparities between black and white arrest rates is even higher when arrests for opiate/cocaine sales is considered in Table 15 (according to the same criteria of Table 14, a minimum of 100 arrests and a black population of at least 1,000).  In Hennepin County, MN the black arrest rate is 480 compared to the white arrest rate of six, making the black rate nearly 84 times higher.  In Columbus, OH (Franklin County) the black rate is nearly 40 times higher.  The Jackson, MO (Kansas City metro area), only has an arrest rate for this drug offense of nine per 100,000 for blacks, however, the white rate is only one per 100,000.  Even when the black arrest rate is low, the white rate is even lower.  And when the white rate is relatively high, such as in Newark, NJ (Essex County: 143 per 100,000), the black rate is several magnitudes higher.  In this case the black rate is 10.31 times higher; the black arrest rate in Essex County, NJ is 1,476 per 100,000.

Table 13.  Metropolitan Core Counties With Largest Disparities Between 1995 Black and White Arrest Rates for Opiate/Cocaine Possession.

Note:  Rates are per 100,000 population.

Table 14.  Metropolitan Core Counties With Largest Disparities Between 1995 Black and White Arrest Rates for Opiate/Cocaine Sales.

Note:  Rates are per 100,000 population.

Section Five: Commentary

Racial disparities in drug arrests are consistent over time, not explained by differences in drug use, and a widespread characteristic of criminal justice systems throughout the country.  The Uniform Crime Report data demonstrates that racial disparities in drug arrests are consistent over time.  While racial disparities exist in all arrests, racial disparities in drug possession arrests are not explained by differences in the number of drug users and instead indicate that law enforcement characteristics are responsible.  The disparities in arrests of blacks and whites are consistent at the local county level as well.  While a few exceptions exist, when it comes to drug offenses blacks are arrested at a higher rate than whites in every part of the United States.

Possible Explanations For Racial Disparity In U.S. Drug Law Enforcement

One possible explanation is that differences in arrest rates are due to economical differences in the sale and/or purchase of drugs.  According to this theory, blacks are more likely than whites to buy and sell drugs in public, "on the street" as it is popularly referred to by law enforcement.  Three popular tactics for police to enforce drug laws are street sweeps, the use of undercover officers and the reduction of serious charges in exchange for turning in others for drug offenses.  All three thrive on infiltration of public drug markets.  However, the drug trade also flourishes in private by way of individual appointments, long-time relationships and other more discreet ways of conducting commercial transactions.  If public drug markets are easier to infiltrate than private ones, and if blacks are more likely to frequent public drug markets than private, than this could explain the wide gap in arrests rates of blacks and whites.

Another consideration is that racial disparities are one of many systemic characteristics of drug law enforcement.  Under this interpretation the issue of concern is not so much the cause of the outcomes but the capacity of the system to eliminate these disparities.  For the purpose of this interpretation, local law enforcement is considered a “black box.”  Regardless of how or why it functions the way it is, law enforcement is producing outcomes -- arrests, and these outcomes have a consistent characteristic – a revealed preference for the arrest of blacks at several times the rate for whites.  As this sort of outcome has generally held to be unacceptable in terms of national standards of fairness and justice, the issue really shifts to explanations that provide acceptable remedies.

Arrests serve two law enforcement objectives.  They provide an immediate sanction in response to alleged criminal activity – punishment.  Also, regardless of their eventual outcome, arrests are also supposed to have a deterrent effect.  But when faced with equal numbers of both races, police arrest several times more blacks than whites. These sanctions appear to be based more on racial considerations than criminal activity.  Furthermore, these disparities undercut the deterrence value of drug arrests.  Blacks and whites both have a pretty good idea of what the odds are even if they don't know the actual figures.  For example, the national rate for marijuana possession arrests is 193 per 100,000 population.  The marijuana arrest rate is higher for blacks and lower for whites, (427 and 167 respectively).  For all drug arrests, the overall rate is 596, but as indicated above when considered separately it is 1,785 for blacks and only 440 for whites.  At the local level these disparities are even more volatile. The overall rate masks two often widely different levels of arrests for blacks and whites.  When it comes to enforcement of the drug laws, the United States has two separate and unequal standards of sanction and deterrence.

Drug arrests in the United States increased from 1.1 million in 1990 to nearly 1.6 million in 1998 and like overall arrest rates these figures are deceiving.  Drug arrests were just under 1.4 million in 1989 and over 10 years increased just 14.5 percent.  Of greater interest is that non-marijuana drug arrests have actually decreased in this 10-year period, from 963,722 in 1989 to 876,214 in 1998.  They dropped by 200,000 in 1990 and remained at that level until 1994 when non-marijuana arrests rose to 870,302 and fluctuated at a similar level reaching 876,214 in 1998.  Even with large reductions in violent crime and the increased resources available during the 1990s local law enforcement as a complete system appears to have reached a limit at a million or less non-marijuana drug arrests per year.  It is the number of marijuana arrests per year that has grown tremendously during the 1990s, from close to 400,000 in 1989 to nearly 700,000 in 1998.

Drug arrests in general and marijuana arrests in particular have long been associated with minority groups than with whites.

Passage of the Harrison Act reflected, in part, growing public sentiment that opium and cocaine were medicines to be taken only in times of illness (and then only when prescribed by a physician) and that these substances could cause insanity and crime, particularly in foreigners and minorities. Smoking opium was associated with Chinese immigrants; popular belief also held that cocaine would affect blacks more forcefully than whites and incite them to violence. Marijuana was believed to have been brought into the country and promoted by Mexican immigrants and then picked up by black jazz musicians. These beliefs played a part in the 1937 Marijuana Tax Act, which attempted to control the drug's use. As early as 1910, many people argued against any non-medical use of narcotics. ^[1]

Prior to the mid-1960s, marijuana use in the United States was mostly confined  to various subgroups such as Mexican laborers, jazz musicians, and beatniks. Although portrayed as a killer weed and a menace by anti-marijuana reformers, there is little evidence that it was either at this time. In 1937, the Marihuana Tax Act (the Federal government then spelled marijuana with an "h"), became law, making the use and sale of marijuana without a tax stamp Federal offenses. Some companies were permitted to apply for a license to use cannabis products (e.g., for birdseed, paint and rope), and doctors could still prescribe marijuana in limited circumstances. However, starting in 1937, recreational use was punished with greater severity. Some speculated that the passage of the Marihuana Tax Act resulted from strong anti-Mexican sentiment in the Southwest and the political power of Anslinger [the Commissioner of the federal Bureau of Narcotics.]. ^[2]

The factors and influences discussed in this report suggest a number of areas for further study of racial differences in drug arrests.  Racial disparities in drug arrest rates are a social cost associated with drug control policies of the 20th century.  Whether the social costs of differences in drug arrest rates can be justified in the 21st century depends on a number of questions that determine if there are any benefits to contemporary policies that justify these social costs.  Important questions for further study include:

• Are there significant differences in where and how blacks and whites buy drugs?
• How do police enforcement tactics affect racial disparities in arrests?
• What is the influence of aggressive policing in inner city areas on these disproportionate arrest rates?
• Do racial disparities in drug arrest rates affect the deterrent value of arrests for drug use?
• Is it possible to increase arrest rates for whites without further increasing arrest rates for blacks?
• How does race affect police discretion whether to make an arrest for possession or issue a warning and simply confiscate the drugs for destruction?
• What is the benefit to crime reduction, if any, of increasing marijuana arrests?
• How do increases in user sanctions affect the availability of drugs?
• How do mandatory/minimum sentences for drug trafficking affect the availability of drugs?

As suggested above one remedy for racial disparities is to radically narrow the scope of drug control laws to the sale of dangerous drugs.  This approach has three stages.    1) Eliminate arrests for marijuana through its rescheduling under existing provisions of the Controlled Substances Act.  2) Repeal mandatory-minimum sentencing and allow judges to distinguish levels of culpability and responsibility in individual cases and sentence defendants accordingly.  3) Distinguish between the public interest in drug control and public health through decriminalization of drug possession offenses.

These steps would eliminate 75 percent of all drug arrests in 1995 and reduce the black arrest for all drugs by 2/3.  More importantly, these reforms would shift the primary practice of drug arrests from a somewhat arbitrary use of criminal sanctions to encourage sobriety to the punishment of individuals who damage the community by selling dangerous drugs outside the legal system of regulation and control.  This distinction is impossible to make as long as marijuana is considered in the same enforcement category as cocaine and heroin, compounded with drug possession arrests as a path of least resistance for drug law enforcement.

There are many individuals, organizations and industries that believe court sanctions are the only way to get some seriously addicted individuals into treatment.  However, this is not the legal purpose of the nation's drug laws, and the public interest in integrating drug treatment into rehabilitation programs can be served by providing such treatment to individuals whose dependency on drugs has contributed to the commission of real crimes.  The use of laws against marijuana sales and possession, along with the laws against possession of any illegal substance, to sweep the streets of people presumed to be prone to commit other crimes amounts to nothing more than preventive detention.  Of equal importance, and far beyond the scope of this report, is the moral value of individual choice and personal responsibility that is lost when 'drug treatment' is rendered a function of state coercion.

…Grist Amongst The Millstone

At issue here are not just the racial disparities in arrests reviewed and discussed above, but the presumptions that flow from such data.  Only a small percentage of drug users are ever arrested, and law enforcement readily acknowledges that only a small percentage of drug users can ever be arrested.  This changes law enforcement from a protective posture to a predatory one; police, employing highly subjective and publicly unacknowledged criteria, decide on a daily basis where they will go to look to make drug-related arrests.  According to arrest data, they turn to the black community as the most likely place to make drug arrests, and consequently they tend to look more and more often to all blacks as being the best percentage play for making another arrest.  The incidence of police stops of blacks on the highways has increased so much over the last 10 years that there is now a satirical name for the imaginary offense – “Driving While Black.”  This is but one of several alarming symptoms of eroding respect for law enforcement in the United States.

Racial disparities in drug arrests represent a serious threat to the integrity of the criminal justice system that should concern all Americans.  The interpretation of this data and the remedies recommended in this report are subject to debate.  However, the data are clear.  The differences in arrest rates between blacks and whites are significant, stark and unambiguous.  In the United States, black drug users face a far greater chance of encountering the criminal justice system than white drug users.  Sadly, in this area, justice is not blind.