Human Rights Violations in
New York attorney Jamie Fellner, on behalf of Human Rights Watch (HRW), has found the national pattern of racial disproportion in arrests and sentencing in the "war on drugs" is replicated in the state of Georgia (Jamie Fellner, Human Rights Watch, "Race and Drug Law Enforcement in the State of Georgia," Human Rights Watch Report, July 1996, Vol. 8, No. 4).
Racial disparity in the "war on drugs" is becoming a national crisis, according to HRW. One in three young black American males is either in prison or jail, on probation or parole. Drug and law enforcement policy is one of the dominant causes of this important social crisis. "Urban black Americans have borne the brunt of the War on Drugs. They have been arrested, prosecuted, convicted, and imprisoned at increasing rates since the early 1980s, and grossly out of proportion to their numbers in the general population or among drug users," wrote Michael Tonry in his book, Malign Neglect: Race, Crime and Punishment in America, (Oxford University Press, 1995) p. 105.
Drawing on computerized statewide databases, HRW examined drug law enforcement in Georgia and its disproportionate impact on blacks, focusing on the years 1990 to 1995. The raw arrest data in the report was provided by the Georgia Crime Information Center and the incarceration data was provided by the Georgia Department of Corrections. HRW also interviewed police officials, prosecutors, defense attorneys and the chief justice of the Georgia Supreme Court.
Of course Georgia's drug laws by their terms are racially neutral, but application of these drugs laws has had a disproportional effect on blacks. Before the "war on drugs" was launched in the mid 1980s, more whites than blacks were arrested for drug offenses. By the end of the decade, blacks were arrested for drugs more than twice as often as whites. The disparity continues into the 1990s. Although blacks make up less than one-third of the population of Georgia, 64.2% of those arrested for drugs between 1990 and 1995 were black. In each of those years, comparing the rate of arrests per 100,000 adult males the black arrest rate was five times greater than the white arrest rate. Comparing the ratio of actual arrests to population reveals that whites were arrested for cocaine offenses (447.2 per 100,000 adults) at a rate of one-seventeenth the rate for blacks (7668.4 per 100,000 adults).
If different arrests rates reflected different rates of criminal conduct by blacks and whites, then the data would not suggest discrimination in the enforcement of drug laws in Georgia. However, drug use rates taken from the National Household Survey on Drug Abuse suggest only a small difference. Drug use rates, which provide a reasonable proxy for possession rates, were about 20% higher for blacks than whites. Yet, blacks were arrested for possession of illegal drugs at a proportional rate that was 500% greater than whites. See Table 1 for a comparison of the race of drug use and possession arrests.
|YEAR||BLACK % of DRUG USERS ||BLACK % of DRUG ARRESTS ||WHITE % of DRUG USERS ||WHITE % of DRUG ARRESTS |
According to almost everyone that HRW interviewed, including police officials, the disparate impact flows from one central reality in law enforcement: it is easier to make drug arrests in low-income neighborhoods. "When you want to catch fish, you go where the fishing is easiest," explained one Georgia official, requesting anonymity. According to this view, blacks are arrested disproportionately, not because of racial discrimination, but because the circumstances of their lives and drug transactions make them easier to arrest.
Drug sales in low-income areas frequently occur on the streets between strangers who buy small amounts of drugs for personal consumption. Most of these sellers are black. In contrast, most white drug sellers usually sell indoors, in bars and clubs and within private homes, to other, more affluent white buyers. Criminal conduct on the open streets makes it easier to find, monitor (and record on videotape) and arrest drug offenders. "[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," writes Tonry in Malign Neglect at p. 106.
Faced with the choice of pursuing drug dealers who are easier to detect and arrest versus pursuing offenders who are harder to detect, Georgia police not surprisingly choose the former. That choice is also politically sensible. Rooting out drug dealing in middle and upper-class neighborhoods would undoubtedly generate considerable opposition and criticism, says Chief Justice Robert Benham of the Georgia Supreme Court. [emphasis added] Police departments are complaint-driven organizations. The disorder that accompanies public drug markets in poorer communities produces pressure on the police departments from the residents, the media and politicians. These departments generally receive fewer complaints about private drug transactions, which do not create visible nuisance.
The racially disparate impact of drug law enforcement is also reflected in the rates of incarceration. Between 1972 and March 1996, 67.3% of persons sent to prison in Georgia for drug offenses were black. Since 1990, blacks have accounted for more than 75% of persons incarcerated in prison for drug offenses. Between 1990 and 1995, black drug offenders were incarcerated at more than twice the rate of white drug offenders: 8.8% of blacks compared to 3.6% of whites. As a result, blacks make up a growing proportion of those admitted to prison.
Most of the discrepancy appears to originate with different incarceration rates according to the drug involved. That is, a much larger percentage of black than white offenders were arrested for the drug offenses carrying the highest rates of imprisonment.
The most shocking sentencing disparity is life sentencing. 560 blacks, compared to 13 whites, were sentenced to life in prison for drug offenses in the past fourteen years. Blacks make up 97.7% of the people given life sentences for drug offenses.
Until March of 1996, drug offenders convicted of a second or subsequent sale of certain controlled substances faced a mandatory life sentence. However, through a procedural loophole, mandatory life sentences came under the discretion of the prosecutor. For a defendant to receive life, the prosecutor, before the trial, must state an intention to seek the enhanced punishment based on prior convictions. If the prosecutor filed the pretrial notice requesting a life sentence, the judge was mandated to impose it. Prosecutors chose not to seek a life sentence in most cases, calling it "hamfisted" and "stupid." In fact, over 85% of those who were eligible for life sentences were sentenced to lesser terms. Table 2 illustrates that of those given life sentences, almost all were African-American.
The disparity does not mirror the racial distribution of those who were eligible for life imprisonment. 3% of whites who qualified were sentenced to life imprisonment compared to 15% of blacks who qualified for and received life sentences. That is, blacks were five times more likely to receive a life sentence. When looking at adults between the ages of 18 and 21, fifty were sentenced to life terms and all fifty were black. These fifty convictions did not include any serious non-drug crimes. Drug crimes alone sufficed for the Georgia criminal justice system to have young adults condemned to life imprisonment.
Furthermore, according to an analysis prepared by the Georgia State Board of Pardons and Paroles in August 1993, most of the drug offenders who received life sentences were convicted for offenses involving small quantities of drugs. 77% of the offenses leading to the first conviction and 79% of the offenses leading to the second conviction involved less than one gram of a controlled substance. 60% of the cases involved drug values of less than $50.
Mandatory life sentencing in Georgia has been challenged several times on constitutional grounds. Despite strong proof of a discriminatory impact, the courts have refused to make a finding of unconstitutionality, citing the lack of proof that prosecutors had discriminatory motives. The racial disparity in mandatory sentences eventually prompted the Georgia legislature to act. In March 1996, the state passed legislation that changed conviction of a second or subsequent drug sale offense to a punishment of ten to forty years or life. Under the statute, judges can use their discretion even if prosecutors recommend a life sentence. It remains to be seen if granting judges more leeway in sentencing will lead to a more racially equitable imposition of life sentences.
Under both federal and Georgia constitutional law, racially disparate drug law enforcement violates the equal protection guarantee only if it is undertaken with discriminatory intent or purpose. As a result, the burden of proving intent has been a formidable barrier for discrimination victims seeking judicial relief.
The International Convention on the Elimination of All forms of Racial Discrimination (CERD), to which the United States is a signatory, does not impose the requirement of discriminatory intent. CERD defines discrimination as conduct that has the "purpose of effect" of restricting rights on the bases of race. It may be that racial disparities in arrests are disparities of class, but a law enforcement focused on economically disadvantaged individual is one that more seriously impacts minorities. According to Michael Tonry (and the interpretation of CERD), where the disparate racial impact is readily foreseeable, if not expressly intended, equal rights principles are implicated.
According to Human Rights Watch, greater justification of the criminal enforcement of Georgia's anti-drug laws than that of simply following the path of least resistance in drug arrests is required, because the fundamental human right of equal protection is at stake. HRW recommended that the means used to enforce drug laws which have led to a disparity in arrests, and particularly in life sentences, should be modified in light of the state's anti-drug objectives.
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