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"Does the Punishment Fit the Crime?"

May/June 1993 issue of Poverty & Race

by Marc Mauer

A new PRRAC-funded report by The Sentencing Project has documented that issues of race and class may have an undue influence on the development and implementation of substance abuse policy in the United States. The report examines social and criminal justice policy toward two different types of substance abusedrunk driving and drug use-and concludes that the societal response to these offenses results in very disparate treatment for low-income African-Americans and Hispanics.

The report, Does the Punishment Fit the Crime? Drug Users and Drunk Drivers, Questions of Race and Class, found that both alcohol and illegal drugs cause a great deal of harm. Drunk drivers are responsible for an estimated 22,000 deaths annually, while overall alcohol-related deaths total 94,000. Drug-related deaths, through overdose, disease, and the violence associated with the drug trade, are estimated at 21,000 annually.

Public concern about these effects led to increased legislative activity during the 1980s, with most states passing harsher sentencing laws to punish both drunk driving and drug possession. The severity of these laws, though, varied dramatically. Although public attention has increasingly focused on drunk driving issues, with harsher sanctions urged by many, a typical state penalty for drunk driving is a fine or license suspension, and possibly, a two-day jail term.

For drug users, though, stiffer sentencing policies along with increased enforcement have resulted in a dramatic increase in the number of drug offenders in the nation's jails and prisons. Many states now call for up to five years' incarceration for a first-time offense of drug possession. Combined with a doubling of drug arrests during the 1980s, an estimated one in four inmates nationally -304,000 persons-is now either awaiting trial or serving time for a drug offense.

While the reasons for the vastly different treatment accorded to persons convicted of drunk driving and drug possession are complex, an analysis of the class composition of these offenders is very revealing. The report found that drunk drivers are overwhelmingly non-Hispanic white males (69%), and represent by far the highest proportion of white arrests for any offense category.

In contrast, persons arrested for drug possession are disproportionately lowincome African-American and Hispanic males. These disparities have been increasing in recent years, with the black proportion of drug possession arrests rising from 22% in 1981 to 37% in 1990. In New York, African-Americans and Hispanics now represent 91% of all drug possession offenders sentenced to prison; in California, they constitute 71%.

The great disparity in punishment for these two offenses, compared to the harm caused to society, raises questions about the relationship of race and class to our notions of punishment and the administration of justice. Drunk drivers, predominantly white males, have been largely defined as people who have a "problem." The societal response to them has generally emphasized keeping them functional and in society, while attempting to stop their dangerous behavior.

Drug users, particularly low-income minorities, tend to be defined more as "criminals," and therefore are viewed as in need of punishment. While drug treatment remains popular and available for middle-class drug users, it is in short supply for low-income persons.

Advocates for change in the societal approach to drug abuse problems have a number of avenues to pursue, both in legislative change and program development. These include the following:

Repeal mandatory sentencing laws: In recent years, Congress and many state legislatures have passed legislation calling for mandatory minimum prison terms for drug offenders. These laws frequently result in small-time drug users and dealers being sentenced to five- and ten-year prison terms with no possibility of parole. Repeal of these laws would still permit judges to sentence drug offenders to prison if they feel it appropriate, but would allow judges to make individual distinctions at sentencing in order to permit a broader range of criminal justice sanctions. Saying he "simply cannot sentence another impoverished person whose destruction has no discernible effect on the drug trade," senior federal judge Jack B. Weinstein of Brooklyn, and a second colleague, recently announced they will no longer preside over drug cases, making public the more informal practice of dozens of other federal judges. Judge Weinstein commented, 'The penalties have been increased enormously without having any impact. It's just a futile endeavor, a waste of taxpayers' money."

Provide more balanced funding for the "War on Drugs": Federal funding for the "war on drugs" has reflected a 70/ 30 split between law enforcement and treatment/ prevention efforts. This "back-end" approach is similar to a health care strategy that would emphasize building hospitals rather than vaccinating children. The result has been continued shortages of treatment availability and a reliance on costly criminal justice responses.

Reassess law enforcement priorities on drug abuse issues: Police resources have been sorely stretched during the past decade, in large part due to the doubling of drug arrests nationally. This inevitably draws resources away from other law enforcement and community priorities. To the extent that police target the drug trade, a priority should be placed on high-level traffickers, and not street-level users and dealers. In New York City, for example, policy changes resulted in a 26% decline in drug arrests from 1990 to 1992, resulting in savings of millions of dollars in court and jail costs.

Divert more drug defendants from the criminal justice system into treatment: In Brooklyn, New York, District Attorney Charles Hynes has initiated Drug Treatment Alternative to Prison as a means of diverting drug offenders from the court system into treatment. Similarly, the Miami, Florida “Drug Court” offers defendants charged with drug possession the option of enrolling in a treatment program as an alternative to prosecution. Growing numbers of criminal justice officials are recognizing that they can play a leadership role in advocating for a broader approach to the problem of crime.

A complex set of factors guides national policy on substance abuse, some more consciously so than others. These may legitimately include harm caused to individuals and communities, the historic tolerance of alcohol, and other factors. Most Americans would agree, however, that issues of race and class should not be determining factors in setting policy for substance abuse or any other issue. The challenge now is to assess the degree to which these issues may be inappropriately involved in such decision making, and to establish a more rational basis for public policy.

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