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December 2, 2020

What data in the federal system would indicate the Biden Administration is drawing down the federal drug war?

Rates_drug_use_sale_1080_737_80With my usual apologies for only scratching the data/metrics surface in class yesterday, I wanted to link here to some of the materials I mentioned and then set up our final discussion giving particular emphasis to the (federal) war on drugs.  To start, on the crime front, I flagged graphics in class drawn from this short FactTank report, titled "What the data says (and doesn’t say) about crime in the United States," from the Pew Research Center.  I recommend the full piece, though I could easily cite to dozens more articles about so many other uncertain metrics regarding crime.

And when it comes to uncertainty about crime, I always think about drugs because illegal drug activity is the kind of behavior that is unlikely to be regularly reported to police and that is so wide-spread that it has to be, by necessity, only selectively enforced by police and prosecutors.  One reason the so-called "War on Drugs" is often called racist is because survey evidence suggests that blacks and whites use and sell drugs at roughly similar rates, but blacks are much, much more likely to be subject to drug-related arrests, sentences, and incarceration.  This data visualization (also reprinted) from The Hamilton Project is a little dated, but it captures the basic disconcerting data realities of seemingly extraordinarily disparate enforcement patterns.

But, as is often the case, there are reasonable debates based on existing data as to whether we ought to worry particularly about drug war disparities if our biggest concern is mass incarceration.  LawProf John Pfaff wrote an interesting book a few years ago (summarized here) stressing data showing the relatively low percentage of state prisoners incarcerated for drug offenses to argue that we ought not focus on drug offenses as a cause or driver of modern mass incarceration.  Sure enough, if you check out the amazing "Whole Pie" accounting of incarceration, one sees that "only" about 15% of the state prison population is made up of drug offenders.  (One quibble I have always brought up in discussions with Prof Pfaff is his failure to consider sufficiently how prior drug offenses impact and extend the sentences of state (and federal) offenders for other crimes.  Many folks in the states subject to particularly harsh three-strikes or habitual offender laws often have prior convictions based in drug enforcement.  As I see it, folks getting decades in prison for, say, a robbery in 2015 based in part on prior drug offenses in 2010 and 2005 are still "drug war" prisoners.)

However one considers drug war realities in state justice systems, the significant impact of drug enforcement at the federal level is indisputable.  I noted in class this US Sentencing Commission Quick Facts document about caseloads and sentencing in drug cases in the federal system, and that data document shows that more than a quarter of all federal cases sentenced last year were drug cases and the average sentence for all these cases was 77 months (whereas the average sentence for all fraud offenses last year was 23 months).  Another way to see the impact of drug cases in the federal system is this other USSC Quick Facts document on the federal prison population as of June 2020.  That document shows that roughly 45% of the federal prison population is incarcerated for drug offenses and that there are more than 10 times as many current federal prisoners serving time for drug offenses than for fraud offenses.  Indeed, it appears that there are roughly the same number of meth offenders in federal prison as there are federal firearm and robbery offenders combined (and firearm and robbery offenders are the two biggest categories of prisoners after drug offenders according to this USSC data).

ChartBut the story gets even more interesting if you look at some of the quite divergent racial patterns in federal drug enforcement and sentencing.  In this Vox article is a slightly dated chart (also reprinted here) that breaks down the racial composition of offenders for different drugs in the federal system, and it shows that almost all sentenced crack offenders are black whereas very few marijuana and meth offenders are black.  These data suggest that if one had the goal of significantly reducing the number of black federal prisoners serving time for drug offenses, reducing significantly the number of crack (and powder cocaine) prosecutions would be sufficient.  But it the concern was more broadly about all people of color, marijuana and meth prosecutions are key because they are disproportionately involving Latinx individuals.  And, if gender intersectionality is of concern, check out this USSC Quick Facts on female offenders which reports that "Among female drug trafficking offenders, 41.6% were Hispanic followed by White (40.1%), Black (13.4%), and Other races
(5.0%)" as compared to "female fraud offenders, [who were] 43.6% were White, followed by Black (31.3%), Hispanic (18.6%), and Other races (6.5%)."

I know that processing all this data is near impossible, and my main goal is just to highlight how many different metrics one might wish to consider.  But I also wanted to finish by focusing on how the new Biden Administration players might set goals for these data as part of an effort to "de-escalate" the drug war.  The number of drug cases prosecutors by federal authorities would seem to be a matter largely of prosecutorial discretion and a matter that the Biden Administration could significantly alter over time.  Given that recent history details about 20,000 federal sentences imposed for drug cases averaging around six years in prison, that means roughly 120,000 years of federal prison is being allocated to federal drug enforcement each year.  Would it be reasonable for a new Attorney General to announce that by, say, 2024 she thinks the federal system ought to allocate only around 50,000 years of federal prison to federal drug enforcement each year (e.g., there should be only 10,000 cases averaging 5 years)?  Or how about only 20,000 years of federal prison to federal drug enforcement each year (only 5,000 cases averaging 4 years)?  Or is this crazy talk?

December 2, 2020 in Current Affairs, Guideline sentencing systems, Scope of imprisonment | Permalink


2 Thoughts on this:
1)Exposure to such a wide variety of metrics & data is certainly eye-opening. It leaves me questioning how heavy one should rely or focus on any single specific set of metrics. The abundance of data creates opportunity for an abundance of arguments to be made in support of numerous different claims, all alleging that one specific set of metrics has a more dramatic effect on the results we see in the sentencing system. While People might say that “numbers don’t lie”, much can take place behind the scenes causing those numbers to be skewed on the surface. As we have learned in class, there are many different powerful “who’s” that have a decent amount of discretion; this discretion does not always have the same impact when looking at numbers on a federal level.(i.e. discretion exercised at a federal level in one area of the country may [somewhat consistently] produce outcomes differing than those produced as a result of discretion exercised in different areas of the country; therefore, leading to “buffed” numbers because of practices that may not be common outside of 1 or 2 highly populated areas, like Texas for example.) The Rob Anon exercise proved, that even with federal sentencing guidelines, discretion will always work its way in there somewhere. However, since I have already gone way too far in the weeds for purposes of a comment, I will conclude this thought by saying I believe it may be more beneficial to just focus on the overall number of drug-related incarceration rates (as well as incarceration rates resulting from drug-enhanced sentences) from a broader view as opposed to getting tied up in attacking the drug war by targeting a specific race, gender, or drug. Allocating too many resources into focusing on sentences that involve one specific drug or race may also have disproportionate impacts. (i.e. some of the “who’s” overcompensating for being soft on one type of drug offense by using discretion to be more strict on a different type of drug offense or in another area of crime.) If we get softer on Marijuana in hopes of limiting the disproportionate effects it has on the Latinx community and that somehow results in tougher approaches on the harder drugs, then certain communities will face even further disparities as a price to pay for lowering numbers connected with marijuana related offenses and disproportionality to the Latinx community. If we look to implement policies which aim to lower numbers for all drug-related offenses overall (maybe something partially related to what Oregon recently did but on a federal level?), then that is just one less problem (amongst many) left to worry about.

Posted by: Francis Williams | Dec 10, 2020 12:01:23 AM

2) As for the question asked at the end of the post, I do not necessarily think it is “crazy talk” to consider having a goal of lowering those numbers by the respective amounts, but I am unsure if it is practically feasible. I believe lowering the number of years may be easier than lowering the number of cases; sentence reform pushing in the direction of being “softer” on drugs may decrease sentence lengths, and therefore incarceration rates, but would not necessarily decrease cases/drug offenses. Some may even argue that it would lead to an increase in drug use, and therefore drug offenses, due to the shift away from using longer sentences to serve as deterrence. Cutting the cases in half (down to 10,000, or more, as mentioned in the post above) is a steep cut to make over a four-year period. However, this itinerary may line up perfectly with a possible trend that one may anticipate after Oregon’s recent decision to decriminalize all drugs. With the right timing, coupled with trending social ideologies/movements, and the right “who’s” implementing efficient policies, anything is possible. Of course, getting all of these stars to align perfectly in order to achieve the goal of cutting the years attributed to federal drug sentences in half, is a long shot to say the least.

Posted by: Francis Williams | Dec 10, 2020 12:03:57 AM

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