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cole - color of punishment

cole - color of punishment - 234 David Cole Race and Crime...

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Unformatted text preview: 234 David Cole Race and Crime 20 THE COLOR OF PUNISHMENT David Cole Questions to Consider In the McClesky V. Kemp case, the Supreme Court found that even though sentencing disparities were found to be significantly correlated with the race of the defendant, those findings did not necessarily mean there was racist intent. However, David Cole’s research challenges the deeply held belief that the rule of law is applied to all citizens without regard to race, creed, status or lineage. How do you explain differences in the length of sentencing according to race? What would happen if there were a ”war on drugs ” and X [the suburbs, rather than the city, were the target? What would white Amer- ica’s response be if millions of young, white, middle—class suburbanites were arrested, sentenced, and put in jail for an extended period of time for recre- ational marijuana or ecstasy use? onya Drake, a twenty~five-year-old I mother of four on welfare, needed the money. So when a man she hardly knew gave her a $100 bill and told her she could keep the change if she mailed a pack- age for him, she agreed, even though she suspected it might contain drugs. The change amounted to $47.40. The package contained crack cocaine. And for that, Tonya Drake, whose only prior offenses were traf- fic violations, received a ten-year manda- David Cole, No Equal lustice: Race and Class in the American Criminal justice Systqn. Copyright © 1998 by David Cole. Reprinted by permission of The New Press, (800) 233—4830. tory minimum prison sentence. When fed— eral judge Richard A. Gadbois, Ir., sentenced her, he said, "This woman doesn’t belong in tprison for 10 years for what I understand she did. That's just crazy, but there’s noth- ing I can do about it.” Had the cocaine in the package been in powder rather than crack form, she would have faced a prison sen- tence of less than three years, with no mandatory minimum.1 Tonya Drake is joined by thousands of prisoners serving lengthy mandatory prison terms for federal crack cocaine violations.2 What unites them is skin color. About 90 per- cent of federal crack cocaine defendants are black. Indeed, a 1992 US. Sentencing Com— mission study found that in seventeen states, not a single white had been prose- cuted on federal crack cocaine charges.3 The Color of Punishment 235 fenders in the federal system serve sen- tences on average five years longer than white cocaine offenders, the courts see no Crack cocaine is nothing more than pow} Jéconstitutional problem. der cocaine cooked up with baking soda. Wholesalers deal in powder; retailers deal in crack. But under the federal sentencing guide- lines, a small-time crack ”retailer” caught sell- ing 5 grams of crack receives the same prison ' sentence as a large-scale powder cocaine dealer convicted of distributing 500 grams of powder cocaine. The US. Sentencing Com- mission has estimated that 65 percent of crack users are white.4 In 1992, however, 92.6 per_-“‘- cent of those convicted for crimes involving crack cocaine were black, while only 4.7 per— cent were white; at the same time, 45.2 per- .9 In 1995, however, the US. Sentencing Commission, which administers the federal sentencing guidelines, concluded that the disparities could not be justified by qualita- tive differences between the two drugs, par- ticularly asfipgwder cocaine distributolrs provide the raw material forfi‘élclg. Itpro- posed to reduce the differential, noting the racial disparities and their corrosive effect on criminal justice generally" Congress and President Clinton responded like politi- cians; they reframed. the issue as whether , we should be ”tough on crime," and org-7):: cent of defendants convicted for powder 77' posed any change. For the first-Time since cocaine crimes were white, and only 20.7 per-,‘ cent were black.5 In Minnesota, where state sentencing guidelines drew a similar distinc- tion between crack and powder cocaine, African Americans made up 96.6 percent of those charged with possession of crack co- caine in 1988, While almost 80 percent of those charged with possession of powder cocaine were white.6 Sentencing guidelines were os— tensibly adopted to eliminate disparity in sentencing, yet the crack / powder distinction has ensured that significant racial inequities remain. Black defendants have challenged the crack / powder disparity on constitutional grounds, but every federal challenge has failed.7 The courts, echoing the Supreme Court in McCleskey, have held that ”mere" statistical disparities do not prove that COngress or the Sentencing Commission adopted the disparities for the purpose of harming African Americans. And it is not Wholly irrational to treat crack as more harmful than powder cocaine, because crack 13 more often associated with violence, is more potent as typically ingested, and is mOre accessible to low-income people. Ac- C’Ol‘dingly, even though black cocaine of- the sentencing-guidelines were created in 1984, Congress passed a law overriding a Sentencing Commission recommendation to alter the guidelines.9 In 1995, the Georgia Supreme Court very briefly took a different approach. Georgia has a " two strikes and you’re out” sentenc- ing scheme that imposes life imprisonment for a second drug offense. As of 1995, Geor~ gia’s district attorneys, who have unfettered discretion to decide whether to seek this penalty, had invoked it against only 1 per- rug conviction, but against more than 16 ercent of eligible black defendants. The re- sult: 9’8_4 PfiCQQtQL those serving life gen; tencesiiegieriths provision were black. On March 17, 1995, the Georgia Supreme Court ruled, by a 4-3 vote, that these figures pre- sented a threshold case of discrimination, and required prosecutors to explain the disparity.10 Instead of offering an explanation, how- ever, Georgia Attorney General Michael Bowers took the unusual step of filing a pe— tition for rehearing signed by every one of the state’s forty-six district attorneys, all of whom were white. The petition warned that Eent of white defendants facing a second . ‘§7[}I;,:f*Ui/L‘JVJ - Davld Cole {0‘ ,‘15l \LU / . /~j the Court’s approach was a “substantial step toward invalidating” the death penalty, and would ”paralyze the criminal justice system,” presumably because raciaLdJspari- ties in “1191339551985, t also have to be__el- plaingd‘. Thirteen days later, the Georgia Supreme Court took the highly unusual step of reversing itself, and held that the figures established no discrimination and required no justification. The court’s new decision relied almost exclusively on the US. Supreme Court's decision in McCleskey,“ The crack/ powder differential and the Georgia experience with ”two strikes and you’re out” life sentences are but two exam- ples of the widespread racial disparities caused by the war on drugs. Between 1286 and 1,921, arremrs of racial and ethnic minorities for all crimes increased by twice as much as nonminority arrests.12 Yet when that figure is broken down by type of crime, drug offenses were the only area in which minority arrests actually increased more than nonminority arrests. The five- year increase in arrests of minorities for drug offenses was almost ten times the in- crease in arrests of white drug offenders.13 In 1992, the United States Public Health Service estimated, based on self~report sur— veys, that 76 percent of illicit drug users were white, 14 percent black, and 8 percent Hispanic—figures which roughly match each group's share of the general popula- tion14 Yet African Americans make up 35 per-g 1 cent of all drug arrests, 55 percent of all drug jl convictions, and 74 percent of all sentencesi for drug offenses.15 In Baltimore, blacks are five times more likely than whites to be ar- rested for drug offenses.16 In Columbus, Ohio, black males are less than 11 percent of the popultion, but account for 90 percent of 236 drug arrests; they are arrested at a rate eigh- " teen times greater than white males.17 In Jacksonville, Florida, black males are 12 per— cent of the population, but 87 percent of drug arrests.18 And in Minneapolis, black males are arrested for drugs at a rate twenty times that for white males.19 Similar racial disparities are found in in- carceration rates for drug offenses. From 1986 to 1991, the number of white drug of- fenders incarcerated in state prisons in- creased by 110 percent, but the number of black drug offenders increased by 465 per- cent.20 In New York, which has some of the most draconian drug laws in the country— selling two ounces of cocaine receives the same sentence as murder—90 percent of those incarcerated for drugs each year are black or Hispanic.21 The “war on drugs” is also responsible for much of the growth in incarceration since 1980. Federal prisoners incarcerated for drug offenses increased nearly tenfold from 1980 to 1993, and that increase accounted for nearly three-quarters of the total increase in federal prisoners.22 ijhe number of state prisoners incarcerated “for drug offenses during the same period in- jlcreased at a similar rate.23 The same pattern emerges in the treat— *ment of juveniles. Between 1986 and 1991, arrests of minority juveniles (under age eighteen) for drug offenses increased by 78 percent, while arrests of nonminority juveniles for drugs actually decreased by 34 percent.”1 As with adults, black youth are also treated progressively more severely than whites at each successive stage of the juvenile justice process. In 1991, white youth jwere involved in 50 percent of all drug- E related cases, while black youth accounted for 48 percent.25 Yet blacks were detained for drug violations at nearly twice the rate of whites.26 Four times as many black juvenile drug cases were transferred to criminal courts for adult prosecution as white cases.27 And black youth involved in drug-related cases were placed outside the home almost twice as often as white youth. These dispar- ities are only getting worse: from 1987 to 1991, such placement for black juveniles in drug cases increased 28.5 percent, while The Color of Punishment 237 placement for whites decreased 30 percent.28 \fects on the black community. A criminal The situation in Baltimore is illuStrative. In 1980, eighteen white juveniles and eighty- six black juveniles were arrested for selling drugs—already a fairly stark five to- -one dis- ecord makes it much more difficult to find a egitimate job. We are disabling tens of thou- ands of young black men at the outset of their careers. The short- term ’"benefits of re- parity. In 1990, the number of white' juve— / moving offenders from the community may niles arrested on drug charges fell to ’1' well come back to haunt us in the long term thirteen, while the number of black juve- ,- niles arrested grew to 1,304—a disparity of" / more than one hundred to one.29 Thus, the victims of the war on drugs have been disproportionately black. Some argue that this is neither surprising nor problematic, but simply reflects the unfortu- nate fact that the drug problem itself dispro- portionately burdens the black community.30 If more blacks are using and selling drugs, equal enforcement of the drug laws will lead to disproportionate arrests and incarcera-~ tion of African Americans. Even if that were the case, the fact that the disparities increase at each successive stage of both the criminal and juvenile justice processes suggests that greater drug use by blacks is not the whole story. In addition, as noted earlier, official” estimates of drug use by race do not reflect I!“ the disparities evident in the criminal justice .5 system, and in fact suggest very little racial disparity in drug use. J The effects of the drug war are difficult to measure. Critics contend that drugs are just as prevalent and cheap today as they were before the crackdown began in the mid-19805. Proponents point to signs that crack use has declined, and that teen use of drugs generally has also fallen. But it is ex- tremely difficult to say whether these trends are a result of the war on drugs. Scholars‘ find that drug use goes in cycles, but they L {5 J7 w-E’ ~ W l ‘9 gbtque H115 (Jr . “9’. v" I ' (_ V Three Strikes 31, 0 Not so long ago, ”three strikes and you’re out” was just a baseball slogan. Today, it passes for a correctional philosophy. And here again, African Americans are dispro- portionately the losers. Between 1993 and 1995, twenty-four states and the federal gov- ernment adopted some form of ”three strikes and you’re out" legislation, under which repeat offenders face life sentences for a third felony conviction.31 (Georgia and South Carolina went even further, adopting ” two strikes and you’re out” laws). Califor- nia’s three-strikes law, one of the first, was sparked "by a repeat offender's abduction and murder of twelve-year-old Polly Klaas in Petaluma in 1993.32 Under California’s version, a second felony conviction doubles the sentence otherwise authorized, and a third felony conviction receives a manda- tory h/venty-five-year-to-life term, no matter how insubstantial the third conviction, so long as the prior convictions were for ”vio- lent” or ”serious” crimes. The "three strikes" idea has been wildly popular; 72 percent of California’s voters approved it in a popular referendum, and President Clinton himself jumped on the three-strikes bandwagon during the 1994 mid-term election cam- have never been able to find a correlation be- ‘Dipaign. 33 But the implementation of the laws tWeen fluctuations' 1n drug use and criminal—_ ' ‘ ‘ has led to many problems law enforcement. One thing is certain, however: the stigmatization and 1ncarcera- tion of such a high proportion of young African- American males for drug crimes Will have significant adverse long- -term ef— First, the laws lead to draconian results. Jerry Dewayne Williams, for example, re— ceived a twenty-five-year sentence for steal- ing a slice of pizza from four young men at a Los Angeles beach.34 Another defendant’s 238 David Cole third strike consisted of stealing five bottles of liquor from a supermarket.35 In its first two years, California’s law led to life sen- tences for twice as many marijuana users as murderers, rapists, and kidnappers com- bined.36 A California Department of Correc- tions study reported that 85 percent of those sentenced under the law were convicted most recently of a nonviolent crime.37 Some have argued that focusing on the third strike is an unfair basis for criticism, because most offenders sentenced under the law have long criminal histories.38 But the law is triggered even where a defendant’s prior offenses are in the distant past, the third conviction is for a minor offense, and there is little likelihood that public safety required anything like a life sentence. Robert Wayne Washington, for example, received twenty-five years to life for a minor cocaine possession charge; his prior offenses were two eight—year—old bur- glaries and an intervening conviction for possession of contraband.39 Second, if the purpose of the law is to in- capacitate those who would otherwise re- peatedly prey on society, it is overinclusive. Most violent criminals have a relatively lim- ited ”criminal career,” tailing off after ten years or 50.40 An individual's third strike often will not occur until his criminal career is on the wane. Thus, the three-strikes laws .will impose life sentences on many offend- ers who pose little future danger to the community. Third, such laws increase the costs of , administering the criminal justice system. : They make police work more dangerous, be— cause a repeat offender facing a life sen- tence, in the words of Los Angeles Police Department spokesman Anthony Alba, is like ”a cornered animal. If he knows he is going to get life in jail, he is definitely going to up the ante in eluding his captors.”41 Once apprehended, many defendants facing a third strike are unwilling to plead guilty, leading to a marked increase in criminal tri- als. Michael Judge, the chief public defender for Los Angeles County, said, "The law has 3 created the single greatest increase in work- ‘ load in the thirty years since I’ve been asso- ‘ciated with the criminal justice system."“2' Two years into the California law’s exis- tence, an auditor estimated that it had cost Los Angeles County alone an extra $169 mil- lion.43 The increase in criminal trials causes backlogs in the civil justice system, as the courts must increasingly devote themselves to criminal trials; as of 1996, 47 of Califor- nia’s 125 civil courts had to be diverted to hearing criminal cases.44 Three-strikes and other mandatory min- imum laws have contributed to startling growth in our prison population. From 1980 to 1994, the national prison and jail popula— tion increased 195.6 percent.45 By compari- son, the general population increased from 1980 to 1990 by only 9.8 percent.“ If the prison population continues to grow at the rate of increase from 1995—96, it would top 3.2 million in 2009. California alone has built seventeen new jails in the last fifteen years. Its prison spending has increased over that period from 2 percent to almost 10 percent of its state budget, and it now spends more on corrections than on higher education.47 Despite these problems, the three-strikes approach remains extraordinarily popular. Why? One possibility is that, as with many other " get tough” policies, its direct burdens fall disproportionately on minorities. The Georgia case discussed above involving racially disparate application of a two- strikes law is not unique. In California, for example, blacks make up only 7 percent of the general population, yet as of 1996 they accounted for 43 percent of the third-strike defendants sent to state prison. Whites, by contrast, make up 53 percent of the general population in California, but only 24.6 per— cent of third-strike prisoners. This means that blacks are being imprisoned under Cal- ifornia’s three-strikes law at a rate 13.3 times that of the rate for whites. And because three-strikes convicts serve such long sen- tences, their proportion of the prison popu- lation will steadily increase; third-strikers comprised 8 percent of the total prison pop- ulation in 1996, but the California Depart- ment of Corrections estimates that by 2024 they will amount to 49 percent.48 Without a change in direction, the already stark racial disparities in our nation’s prisons will only get worse. Yet it is precisely for that reason that there is unlikely to be a change in direc- tion. As long as the effects of this get-tough measure are felt principally in minority communities, there is not likely to be suffi- cient political pressure for change. When Is Disparity Discrimination? As the figures above illustrate, it is beyond dispute that criminal sentencing is marked by stark racial disparities. But does this amount to discrimination? Everyone agrees that black defendants should not receive harsher penalties simply because they are black, and that criminals who attack white Victims should not be punished more severely because the Victims were white. But the disparities identified above may be attributable to factors other than race dis- crimination. Perhaps blacks commit more serious crimes per capita than whites. Social scientists and criminologists have long sought to determine through statistical analysis whether criminal sentencing is impermissibly affected by race, and have reached contradictory conclusions. In the death penalty setting, as we have seen, most studies conclude that there is dis- crimination based on the race of the victim, even after controlling for other possible fac— tors. In non—death penalty cases, however, the results are more mixed. In a 1993 study Of the racial impact of the federal sentencing The Color oannishment 239 guidelines, for example, the US. Justice De- partment’s Bureau of J...
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