Holder’s Sentencing Reforms Could Increase Racial Disparities in Incarceration

Instructing federal prosecutors to use long sentences for drug dealing within organizations may increase the over-representation of people of color in prison

Attorney General Holder’s new policy on the application of mandatory minimum sentences in drug cases reserves tough sentences for offenders who work within larger organizations rather than being independent operators. Under this policy, a banker who will launder drug money for any outside drug organization may get more leniency than would a courier or lookout who is a member of single criminal organization. In a balanced appraisal of Holder’s proposal, Jonathan Caulkins points out a potential adverse impact of prioritizing offenders on this criterion:

Organizations of all ethnicities import drugs, but given the geography of production and transshipment, smuggling operations are disproportionately Hispanic. Likewise, members of all racial and ethnic groups participate in retail selling, but — with the exception of outlaw motorcycle groups — the gang members are disproportionately minorities.

The result of assuming that those criminals who work within a larger organization deserve more severe punishment may therefore be that the federal prison population over-represents Hispanics and African-Americans to an even greater extent than it does today.

An alternative approach to sentencing is to worry less about whether drug offenders are part of an organization and instead focus the toughest punishment on those individuals whose removal would most severely disrupt the overall illegal drug trade. This would be a significant departure from the longstanding law enforcement practice of sweeping up huge numbers of low-level drug offenders, most of whom are people of color who work within a gang or other large criminal organization. To quote from an op-ed Jon and I co-authored a few years back:

The US has increased incarceration for drug-law violations literally tenfold since 1980 without achieving more than temporary increases in prices. There would be little lost by halving the average sentence length for easy-to-replace functionaries within the drug distribution system (lookouts, typical retail sellers, hired hands, etc). It would also spare the public the enormous human and social costs of mass incarceration.

Author: Keith Humphreys

Keith Humphreys is the Esther Ting Memorial Professor of Psychiatry at Stanford University and an Honorary Professor of Psychiatry at Kings College London. His research, teaching and writing have focused on addictive disorders, self-help organizations (e.g., breast cancer support groups, Alcoholics Anonymous), evaluation research methods, and public policy related to health care, mental illness, veterans, drugs, crime and correctional systems. Professor Humphreys' over 300 scholarly articles, monographs and books have been cited over thirteen thousand times by scientific colleagues. He is a regular contributor to Washington Post and has also written for the New York Times, Wall Street Journal, Washington Monthly, San Francisco Chronicle, The Guardian (UK), The Telegraph (UK), Times Higher Education (UK), Crossbow (UK) and other media outlets.

15 thoughts on “Holder’s Sentencing Reforms Could Increase Racial Disparities in Incarceration”

  1. How do you mark out the management in a way that will hold water in court? ¨Conspiracy with a laptop?¨ More seriously, you can follow the money. Seizure plus a fine equal to the amount seized.

  2. Setting aside the fact that I’d rather we weren’t going after anybody at all for these sorts of crimes… So what? Minorities have a higher commission rate for a wide variety of crimes, it’s literally impossible to draft a law of general application in many areas without disparate impact.

    If the disparate impact is due to disparate proclivity to break the law, I can’t get especially excited about it.

    1. It isn’t that simple, because minorities don’t have a higher proclivity to break the law in general. Rather, they are disproportionately prone to breaking some laws but not others. If we are misprioritizing which laws we enforce more heavily that has the direct consequence of letting more important criminals off. But it also has an indirect consequence of putting a disproportionate burden of paying the price for crime on certain communities.

      That you missed the point of the post, namely that we are engaged in this sort of misprioritization, doesn’t surprise me.

      1. Holder seems to have concluded that focusing on people working within organizations will better utilize enforcement resources. He may be right, he may be wrong, but I don’t Keith giving me much basis for the latter conclusion besides the disparate impact.

      2. I certainly agree that minorities show no more proclivity to break the law than white folks do, despite Brett’s uncloseted racism. I do disagree with J. Michael on this — or at least the way the problem is formulated:
        “Rather, they are disproportionately prone to breaking some laws but not others.”

        If we’re seeing this, we need to look at the justice system itself. Why is it that we as a society still pass and enforce laws that are clearly intended and often demonstrate the intent to prioritize the offenses of minorities, while ignoring equally or more damaging crimes by others?

        The example of the banker that Keith used can be repurposed. Why do we lock up so many low level minority crack dealers, with stunningly poor results in terms of price, availability, personal reform , etc, while at the same time virtually zero bankers even when it’s obvious numerous crimes have been committed and prison for even a relatively few bankers might have a salutary effect on crime in banking in general? Certainly bankers are far more organized than most street gangs and have access to far more resources, as well as posing potential flight risks — assuming any were ever arrested.

        We should just own up to the fact that we have a racially-targetted system of mass incarceration that is targeted at certain populations because certain politicians chose to do that. We need to confront — and correct — that fact or we’re just tidying the deck chairs on a sinking ship. Combine this sort of regrettable and unnecessary “conditioning” of certain groups to bear the brunt of the social narcissism like Brett’s with the avaricious office-seeking of many American politicians, a militarized police force, a ruling elite intent on forcing most Americans to accept 3rd world levels of income, and lots of guns…Red Dawn doesn’t need imaginary Cubans parachuting in, real people will just quit putting up with this cre-ap at some point and things will get really ugly, really fast.

        1. “I certainly agree that minorities show no more proclivity to break the law than white folks do, despite Brett’s uncloseted racism.”

          Really? Completely ignoring victimization surveys? Completely ignoring victimization surveys of minorities themselves? Just how out of touch with reality do you have to be to make that assertion?

          1. Brett,
            Your racist fantasies do not represent reality, they reflect your own prejudices.

            They also reflect our racist justice system’s focus on retail level crime, while letting the wholesalers take theirs, literally, to the bank.

            Dylan summed it up nicely…

            Now, a very great man once said
            That some people rob you with a fountain pen
            It don’t take too long to find out
            Just what he was talking about
            A lot of people don’t have much food on their table
            But they got a lot of forks and knives
            And they gotta cut something.

          2. Ah, so you discount victimization surveys because too many things are legal you’d like to outlaw. So, let’s just blow off statistics on things like assault and robbery.

            Personally, I think too many things are illegal that ought to be legal, starting with drugs. So this is a fight between two people arguing how to do something I don’t think should be done.

            But that doesn’t change the fact that I didn’t see Keith showing me any basis for thinking his judgment as to how to accomplish something that shouldn’t be done in the first place was any better than Holder’s. Besides disparate impact, of course, which is why I commented about that.

          3. Brett,
            Theft and fraud are still theft and fraud, no matter what your station in life. Whether you are called to account for such goings-on depends very much on how you steal something and how much you steal in the United States.

            If you’re proposing crimes that should be made legal, what else would you like to be added to the list?

            Once again, let’s go back to a matter of priorities. You seem to want to prioritize crimes committed by minorities, while continuing the current order until you can make the office of the attorney general go away. That’s not a whole lot different than what we have currently, except I guess you’d like to clear out any white folks still in prison to be certain we can lock up all those criminally inclined minorities, which you fantasize will somehow address your fears and anxieties.

          4. Brett,
            Ahh, I get it. Some victims of crime are volunteers and the government shouldn’t get involved. How quaint.

            What I can’t figure out is how you trust practically nothing else about government, but you have almost limitless trust and zero skepticism about its ability to racially sort out the white/good from the bad/black in all things, to trust the decisions of a justice system you are otherwise quite skeptical of and the results of which would raise your ire if applied equitably across the board to all citizens, and to support endless expenditures on limiting the freedom of certain Americans that you’d likely find intolerable when applied in equal measure to white folks.

            I guess you’re right. That whole equality thing is just too 18th century to apply to these modern United States.

  3. The US has increased incarceration for drug-law violations literally tenfold since 1980 – without achieving more than temporary increases in prices.

    Does that mean that the goal is to increase the price of illegal drugs? Wouldn’t the effect of that be to drive addicts to commit more hold-ups and burglaries to pay for their drugs, thereby increasing the number of victims of the drug laws? Maybe addicts would also spend more of the money that should go for food for themselves and their families on drugs. I can’t believe that increasing the price of drugs would cause addicts to reduce their consumption of them.

    Another effect of increased incarceration is more turf battles — including more shootings, of innocent bystanders as well as drug dealers — for the customers of the incarcerated dealers. Whenever one reads of a big drug bust, one can assume that it will be followed by an increase in crime and hence an increase in victims of the drug war.

  4. So the question is, will locking up important players in the drug trade create slightly less violence than locking up criminal organization members? Either way, we have lots of violence. And the violence of the drug trade is almost entirely the result of policy choices, as opposed to the violence of consumers which can be influenced by policy but is mostly personal choice. So either way we get violence, and we aren’t sure if all this violence results in lower drug use overall. So what’s the point of all this violence?

    I realize some think that prohibition results in lower drug use, and as Caulkins notes:

    “it is safe to say that prohibition reduces drug use substantially (no illegal drug is used as often or as widely as are alcohol or tobacco) but far from completely (after all, tens of millions of people do use illegal drugs).”

    So I think it’s important to point out that illicit drug use is reduced, but not drug use overall. Caulkins is not counting alcohol as drug when he is talking about use. People who want to become intoxicated have a choice in legal alcohol. So we really aren’t stopping those who wish to alter their mind/mood, we are just pushing them to alcohol. So again, what’s the point of all this violence? Is society really any more sober?

  5. Focusing on low-level, non-violent offenders will only increase the prison population. With twenty-five percent of the worlds prison population in the United States incarcerating low-level offenders would only increase that percentage. The real problem is the addiction that people face. Instead of focusing on higher ups or low-level offenders focus on the health aspect of the problem. More rehabilitation programs would, in the long run, get more people off the street then incarcerating them. Also cartel leaders are the big bosses that control everything. There are always going to be more people who need money and would be willing to sell drugs for it. But eliminating the big leaders would only help the situation because low-level offenders would not know what to do.

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