Race, drug, and criminal sentencing: Hidden effects of the criminal law

Journal of Criminal Justice, Vol. 24, No. 1, pp. 39-55, 1996 Copyright © 1996 Elsevier Science Ltd Printed in the USA. All rights reserved 0047-2352/96 $15.00 + .00

Pergamon

0047-2352(95)00051-8

RACE, DRUG, A N D CRIMINAL SENTENCING: HIDDEN EFFECTS OF THE CRIMINAL LAW

CAROLE WOLFF BARNES a n d RODNEY KINGSNORTH

Department of Sociology California State University, Sacramento Sacramento, California 95819-6005

ABSTRACT This study analyzes a sample ofl,379 cases involving persons arrested and charged with a single drug felony in Sacramento County, California, in 1987, and completed before December 31, 1989. The data were collected f r o m the district attorney's files, and permit an analysis o f the intersection between the racial/ethnic status o f the defendant, type o f drug, and criminal justice system decision making from the point o f intake in the district attorney's office to final case disposition. Major findings include: African Americans are significantly more likely than Caucasians or Latinos to have their cases rejected or dismissed by prosecutors; Caucasians are more likely to be placed on diversion and to have their charges reduced to a misdemeanor; African Americans are more likely than Latinos who are more likely than Caucasians to receive a prison term; and, when sentenced to prison, African Americans and Latinos receive substantially longer terms than Caucasians. Two major hypotheses are offered to explain these findings. First, the penalty structure prescribed by the penal code provides f o r significantly less severe penalties f o r those charged with methamphetamine offenses than f o r those charged with offenses involving other drugs, in particular crack cocaine, and these drugs represent drugs o f choice for different racial/ethnic groups. Second, the law provides f o r more severe penalties for those charged with possession for sale and sale than f o r those charged with simple possession. This study argues that the character o f inner city drug markets, coupled with law enforcement drug suppression strategies, means that African Americans and, secondarily, Latinos are more frequently charged with more severe offenses than Caucasians. These factors, rather than racial~ethnic status per se, account for the differences in outcomes noted above.

INTRODUCTION

ical difficulties, notably the failure to establish appropriate statistical controls when assessing the role of extralegal variables, such as race in official decision making, have been substantially overcome in later studies (Hagan and Bumiller, 1983). Despite increased meth-

The relative importance of legal versus extralegal variables in criminal justice case processing is an issue o f continuing controversy in social science research. Early methodolog39

40

c. WOLFFBARNESand R. KINGSNORTH

odological rigor, it still is not possible to speak of a research consensus on the role of race and ethnicity in the decision-making process. Zatz (1984:147) has summarized this conclusion in the following way: "The sum of our knowledge is that for some offenses in some jurisdictions, controlling for some legal and extralegal factors, at some historical points, and using some methodologies, some groups are differentially treated." Literature reviews are unanimous, however, in concurring that the importance of race as an explanatory variable diminishes substantially when prior record and offense severity are controlled (Hagan, 1974; Kleck, 1981, 1985; Blumstein et al., 1983; Hagan and Bumiller, 1983; Wilbanks, 1987; Neubauer, 1992). Nonetheless, a number of studies continue to report significant effects associated with the racial status of the offender and/or victim (e.g., Gibson, 1978; LaFree, 1980; Paternoster, 1984, 1991; Peterson and Hagan, 1984; Spohn, Gruhl, and Welch, 1987; Spohn, 1994). Several attempts to delineate more precisely the circumstances in which race/ethnicity assert their greatest effects have focused on the degree of discretion available to decision makers, particularly in relation to offense severity (Gottfredson and Gottfredson, 1980). In general, the research literature views discrimination as associated with discretion, which tends to increase as the offense severity diminishes both within and between offense types. For example, Paternoster (1984) has suggested that, in murder cases, the racial status of the victim exerts its greatest effect on prosecutorial requests for the death penalty when multiple aggravating circumstances virtually compelling that penalty are not present. Absent such aggravation, prosecutors have more discretion in deciding whether to request the death penalty, creating an opportunity for race to play a role in that decision. This observation echoes the work of Blumstein (1982:1274), who argued that the least amount of "unexplained disproportionality" in the racial composition of United States' prisons occurred in relation to the most serious offenses, such as homicide. Conversely, the greatest amount of unexplained racial dis-

proportionality was associated with less serious offenses, in particular drug offenses. This relationship was further confirmed by Hawkins (1986), who identified driving under the influence (DUI) and drug violations as offenses most likely to be associated with unexplained disproportionality. It is noteworthy that the data relied on by Blumstein and Hawkins predate the full effects of the drug war of the 1980s. Since prison admissions for drug offenses increased dramatically in the 1980s (Bureau of Justice Statistics, 1992)- a change that was particularly associated with increases in the incarceration of minority offenders (Blumstein, 1993; Tonry, 1995)--it seems likely that the relationship noted by Blumstein and Hawkins has intensified rather than diminished. Neither Blumstein nor Hawkins are able to draw any definitive conclusions from their data regarding the role played by the racial status of the offender in the court's processing and sentencing of drug law violators. Nonetheless, their work suggests that the possibility of such a relationship urgently requires research attention. A traditional analysis of the relationships between race, court processing, and sentencing, without specifying the drug involved, could lead to serious misinterpretations of the role of race in processing these offenses. If there are racial differences in the drug of choice and penalty structures of varying severity for different drugs, then a racially neutral application of the law could, nonetheless, produce racial differences in the severity of penalties applied. For example, significant differences in the case outcomes for different racial groups charged with drug offenses of the same severity (possession, possession for sale, sale) could lead to an erroneous conclusion that race influenced prosecutorial and judicial decision making. This conclusion, however, would be premature if the law specifies penalties of varying severity for different drugs. In that event, an interaction between penalty structure, race, and drug of choice would produce varying penalties for different racial groups, even when the offense severity is controlled. This issue recently has assumed national attention as a result of marked differences in

41

Race, Drug, and Criminal Sentencing

the treatment of powder cocaine in contrast to crack cocaine in the federal sentencing guidelines. It frequently has been noted that those guidelines require the possession of one hundred times as much powder as crack cocaine in order to receive an identical punishment (e.g., House supports, 1994). As will be shown, this problem is compounded in the California sentencing scheme by the very different treatment accorded users of methamphetamines. For this reason, this study's analysis focuses on the penalty structure for different types of drugs and offense levels in attempting to account for the relationship between the racial/ethnic status of the offender and case outcomes. Table 1 shows the penalty structure for selected drug offenses by offense level, as provided in California law. California's determinate sentencing law is a presumptive midterm felony sentencing guideline that enables judges to impose higher or lower penalties in response to aggravating or mitigating circumstances. Thus, every felony is associated with a triad of terms-except for a few very serious offenses, such as murder, which continue to be punished with indeterminate sentences. As could be expected, penalties increase for all drug types as the offense severity increases. For this study's purposes, it is particularly noteworthy that the severity of punishment also varies by the type of drug within the offense level. For example, as Table 1 indicates by the option of a one-year jail term, only possession of methamphetamine and marijuana can be reduced to a misdemeanor, while possession of cocaine (crack or powder) and heroin must be prosecuted as felonies. In addition,

the midterm prison sentence for possession for sale of crack cocaine is substantially longer than that for powder cocaine or heroin, and twice as long as the midterm sentence for possession for sale of methamphetamine. Similarly, sale of marijuana or of methamphetamine carries a lesser prison term than conviction for sale of the other drugs. It is clear from Table 1 that if different racial and ethnic groups gravitate toward different drugs of choice, then a racially neutral application of the law will produce penalties that vary with the racial status of the offender if the type of drug is not controlled. In addition, if, for any of several possible reasons, racial and ethnic minorities are more likely to be charged with possession for sale or sale than Caucasians, the same result will ensue. The purpose of this article is to discuss the ways in which these two dimensions of the penalty structure of the law intersect to produce varying charges and penalties for different racial and ethnic groups.

METHODS Charging, processing, and sentencing data for all persons charged with a single drug offense were collected from the district attorney's files in Sacramento County. All offenses charged during 1987, with case completion before December 31, 1989, were included in the sample. Cases with multiple drug or nondrug offenses were eliminated because they complicate the sentencing structure and hinder the effort to establish relationships between

TABLE 1 MANDATED LOW, MEDIUM, AND HIGH TERMS FOR SELECTED DRUGS AND OFFENSE LEVELS--CALIFORNIA 1987-1989

Drug Involved Cocaine base (crack) Powder cocaine Heroin Methamphetamine Marijuana

Possession 16 16 16 1 year jail 1

months/2/3 years months/2/3 years months~2~3 years or 16 months/2/3 years year jail/prison*

Possession for Sale 3 / 4 / 5 years 2 / 3 / 4 years 2 / 3 / 4 years 16 months/2/3 years 1 year

*For amounts in excess of 28.5 grams; for lesser amounts, the penalty is a $100 fine.

Sale 3/4/5 3/4/5 3/4/5 2/3/4 2/3/4

years years years years years

42

c. WOLFFBARNESand R. KINGSNORTH

particular drugs and the decision-making process, which is the primary goal of this article. (For example, plea bargaining often leads to a waiver of some charges in exchange for a diminished penalty which, nevertheless, reflects more than the remaining charge would support.) Selecting only single drug offenses suggests that the sample contains the less serious drug offenders. 1 This is supported by the fact that over 90 percent of all racial/ethnic groups in the sample do not have prior felony drug convictions, and roughly 90 percent of Caucasians and Latinos and 82 percent of African Americans lack prior nondrug felony convictions as well. 2 Depending upon disposition, case information was found in one of four locations: (1) cases completed in 1988 and 1989 were coded in the district attorney's file room; (2) those completed in 1987 were in warehouse storage; (3) those reduced to a misdemeanor were coded from the misdemeanor court files; and (4) the limited information existing for cases rejected at the outset was taken from computer printouts summarizing these actions, since a case file was never compiled. Case files, where they existed, contained the charging document (or District Attorney's Information); the arrest report; the court minute order; and, in felony cases, the probation officers' reports. The variables available for all cases included: felony charge at intake, which identifies the penal code section violated and offense level (possession, possession for sale, and sale); disposition (charges rejected at the outset, dismissed later, diverted, reduced to a misdemeanor, or processed as a felony); sentence (restitution, jail, or prison time); and gender and race. For cases processed as felonies, the files also included: initial and final bail amounts; time between arraignment and sentencing or dismissal; police charges and drug identification; bargaining agreements as to term, priors, and "no state prison" guarantees; attorney type (public defender, private, or pro per); and whether diversion was successfully completed. Personal history data, taken from the probation officer's report, included prior juvenile adjudications, adult convictions, prior prison terms, and recommended sentence.

A total of 1,369 cases comprise the initial sample. This excludes single drug offenses involving drugs other than cocaine (crack and powder), heroin, marijuana or methamphetamine, since these were too infrequent to warrant analysis. It also excludes ethnic groups other than African Americans, Latinos, and Caucasians for the same reason (Table 2). When the drug of choice is involved in a table, 332 cases from this initial sample drop out because the drug cannot be identified with sufficient precision; 137 of these are diverted or fully prosecuted as misdemeanors or felonies, 195 are rejected or dismissed.3 The inability to identify the drug in these cases is of minor importance to the main thrust of this study, since the principal objective is to observe the impact of the penalty structure on sentencing practices. Cases rejected and dismissed, by definition, are not sentenced. The analysis of prosecutorial decisions, however, is constrained by the reduction in sample size due to the lack of drug identification. It is more seriously limited by the minimal information available on rejected and dismissed cases and by the interactions between race, drug of choice, law enforcement strategies, and charging restrictions (see Table 3 and Appendix A). Racial differences in the drug of choice, enforcement pressures on crack rather than powder and heroin, and legal restrictions on charge reductions for crack, powder, and heroin lead to many empty cells in the tables and an uneven distribution when race, drug, and prosecutorial outcomes are interrelated. This skewed distribution weakens the logistic regression models for some prosecutorial decisions (rejection or dismissal v. prosecution as a misdemeanor or felony) and leads to marginally significant contributions of some variables, which, with larger cell sizes, might be more important. For this reason, logistic regression models are used to complement rather than replace descriptive statistics that control race, drug, and charge severity singly rather than in combination. The unevenness of the joint distributions of race, drug, and prosecutorial outcome and of race, drug, and priors, which similarly handicaps the analysis of sentencing, are shown in Appendix A

43

Race, Drug, and Criminal Sentencing

TABLE 2 RACIAL DISTRIBUTION OF FELONY DRUG OFFENDERS AT INTAKE

Race b

Total Sample

Sacramento County Population >_ 18 a

Caucasian African American Latino Total Number of cases

44.0% 44.1% 11.8% 100.0% 1,369

79.6% 9.1% 11.2% 99.9% 698,811

aTable54, "Age and Sex by Race and Hispanic Origin," U.S. Census of Population and Housing, 1990. bOther racial groups made up too small a proportion of the telony offender sample for reliable analysis. For comparability, they were omitted from both the sample and population.

and B. These distributions are of descriptive interest as well because they dramatize selective enforcement strategies and illustrate how they serve to entrap more minorities than Caucasians who do not have prior convictions.

FINDINGS Table 2 shows the racial distribution of the sample of felony drug offenders at prosecutorial intake. Since the sample exludes groups other than Caucasians, African Americans, and Latinos due to their small numbers in the arrestee population, these groups also are excluded from the county population. Compared to the racial composition o f Sacramento County, Table 2 reveals that Caucasians are significantly underrepresented (44.0 percent v. 79.6 percent o f the county population), African Americans are substantially overrepre-

sented (44.1 percent v. 9.1 percent of the county population), and Latinos are represented in rough proportion to their presence in the larger population (11.8 percent v. 11.2 percent). The overrepresentation of African Americans at prosecutorial intake reflects their overrepresentation in arrest statistics. It is not argued that these arrest data necessarily reflect racial/ethnic differences in use patterns. 4 Rather, the overrepresentation of African Americans in drug statistics reflects both the larger political environment and variations in the drug markets of the separate racial/ethnic communities. Political pressures to wage a vigorous war on drugs has encouraged law enforcement agencies nationwide to adopt a numbers-driven proactive strategy designed to maximize the volume of arrests (Hagan, 1994). Under these conditions, law enforcement agencies deploy resources in those areas where arrests are easiest to m a k e - a n d where their resources are, in any case, concentrated. Prosecutors, public defenders, and police officers interviewed for this study all emphasize that because of the more public, highly visible nature of drug markets in inner city communities, arrests are much easier to make than in suburban areas where drug use and dealing tends to be more private and conducted behind closed doors between people who know each other. According to one law enforcement officer: Crack is the big drug around town right now, and it's just a fact of life that it's almost exclusivelywithin the black community. They're easy arrests to make.

TABLE 3 DRUG INVOLVED BY RACE OF OFFENDER (IN PERCENT)

Drug Involved Crack cocaine Powder cocaine Heroin Marijuana Methamphetamine Total Number of cases

Caucasian

African American

Latino

2.9 6.0 3.7 13.3 74.1

78.3 4.3 2.2 9.2 6.0

7.5 11.3 34.9 11.3 34.9

100.0 517

100.0 414

100.0 106

Total Cases

1,037

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C. WOLFF BARNES and R. KINGSNORTH

Very seldom can you do a 'cold buy' from a crank (methamphetamine) dealer, just walk up and say "Hey man, Joe sent me." But you can walk up on the street in Oak Park and just say "Hey man, give me a 20 ($20 worth of crack)." And he'll say "O.K. man, I'll go get it for you." (Wagner, Mayer, and Alim, 1990:A1) Sheriff Glenn Craig stated in an interview with Sacramento Bee reporters: I have never said white people don't use drugs. White people are more discreet. More private. Less open. And less intrusive on their friends and neighbors in their use of the drug. And that buys probably a little more anonymity in the use of the drug. (Wagner, Mayer, and Alim, 1990:A1). According to the treasurer of the Sacramento County Black Deputies Association: The No. 1 drug problem in Sacramento County is methamphetamines. But they don't sell to people they don't know. You can't bust a crank (methamphetamine) lab and get a lot of busts. But you can get a lot of arrests at a crack house. (Wagner, Mayer, and Alim, 1990:A1) These comments closely mirror Tonry's (1995) recent discussion of why narcotics enforcement practices target inner city minority communities rather than affluent white suburbs. As it will be demonstrated, these enforcement strategies have consequences in terms of the quality of arrests, severity of charges, and subsequent prosecutorial decision making.

Prosecutorial Decisions Table 3 indicates very clearly that, among those arrested and charged, different social groups are associated with different drugs of choice. African Americans are involved primarily in crack cocaine (78.3 percent), Latinos in heroin (34.9 percent) and methamphetamine (34.9 percent), and Caucasians in methamphetamine (74.1 percent). A Sacramento Bee article (Vogel, 1993) emphasizes the growing importance of methamphetamine in the Latino community. O f twenty-eight suspected methamphetamine dealers arrested in September 1993,

nineteen were undocumented immigrants from Mexico. Police believe that Mexican cartels, previously specializing in heroin and cocaine, are using the same transportation links to replace the biker gangs who once dominated the illicit methamphetamine market in California. Mexican produced crank is alleged to be 40 percent cheaper than the California product. As will be shown, these racial/ethnic differences in involvement with different types of drugs are associated with differences in case outcomes. Table 4 shows marked differences in the severity of drug charges by the racial/ethnic status of the offender. Caucasians are substantially m o r e likely than African Americans and Latinos to be charged at the lowest level of s e v e r i t y - s i m p l e possession (70.1 percent v. 41.7 percent and 47.4 percent, respectively). Conversely, 38.4 percent of African Americans are charged with possession for sale, compared to 22.9 percent of Caucasians and 21.2 percent of Latinos. African Americans are three times as likely as Caucasians, and Latinos four times as likely as Caucasians to be charged with sale. These differences appear to be related to differences in the characteristics and social organization of the racially segregated drug markets in Sacramento County, coupled with the politically driven imperatives of drug enforcement strategies. The high proportion of African Americans charged with possession for sale may be due to the ease in successfully prosecuting offenders who deal on the street and who frequently possess, in addition to the drug, other characteristics judged by prosecutors to be indicative of sales activity. For example, when considering whether to charge simple possession or possession for sale, law enforcement officers and prosecutors not only consider the amount of drug involved, but also the possession of large sums of money, or electronic devices ("beepers"), or other indicia of sales, such as scales. Raids on known crack houses and arrests of street dealers are likely to produce this kind o f evidence in support of possession for sale charges as opposed to simple possession. Police sting operations, with police posing as buyers, are a law enforcement tactic utilized

Race, Drug, and Criminal Sentencing

45

TABLE 4 OFFENSE LEVEL CHARGED BY RACE AND DRUG INVOLVED Variables Race Caucasian African American Latino Total Drug involved Crack cocaine Powder cocaine Heroin Marijuana Methamphetamine

Possession

Possession for Sale

Sale

Total

70.1 41.7 47.4

22.9 38.5 21.2

7.0 19.8 31.4

100.0 100.0 100.0

582 580 156 1,318 a

25.0 76.7 37.5 37.8 75.2

59.1 11.7 20.3 18.0 21.6

15.9 11.7 42.2 44.1 3.2

100. 0 100. 0 100.0 100.0 100.0

340 60 64 111 444

Total

Number of Cases

1,019

aThere are sixteen cases involving the drugs of interest but charges other than possession, possession for sale, or sale (e.g., transportation).

more frequently in the crack and heroin markets than in the methamphetamine market. Police perceive the Caucasian methamphetamine market as closed in the sense that sales are more likely to be restricted to people who know each other. One public defender (McElheney, 1994)5 offered the observation that the typical methamphetamine arrest was precipitated by a car stop for reasons unrelated to drug use. Such arrests are more likely to result in possession charges than sting operations, which will, of course, produce a greater number of arrests for sale. Finally, it is also possible that small-time dealing is more prevalent among African Americans than among other racial/ethnic groups. Poverty and high unemployment rates among inner city African American males may create economic pressures in this direction. Table 4 also shows the charge severity by the type of drug. Not surprisingly, in view of the discussion above, methamphetamine cases are more than three times as likely as crack cases to be prosecuted as simple possession. Marijuana cases are more likely than other drug cases to be prosecuted for sale, with heroin a close second. The relative importance of sale among those charged with marijuana offenses is probably a function of the low police priority given to simple possession of this drug, which, in California, is a misdemeanor

carrying a $100 fine. Crack cocaine is far more likely than other drugs to be prosecuted as possession for sale. As noted above, the relationship between drug type and offense level can be seen as a function of the features of the separate drug markets in Sacramento County as these interact with enforcement strategies. Table 5 shows prosecutorial decisions by the racial/ethnic status of the defendant. As noted by several authorities (e.g., Neubauer, 1992), most analyses of racial discrimination in the criminal justice system have focused on sentencing owing to the ready availability of data for statistical analysis. Spohn, Gruhl, and Welch (1987) noted that although a few studies of prosecutorial dismissals existed at the time of their study, none had analyzed the prosecutorial decision to reject cases. The paucity of analyses in this area lends particular significance to the data in Table 5. The findings of the present study do not support those of Spohn, Gruhl, and Welch (1987), who, in their study of Los Angeles County prosecutors, found that cases involving Caucasian offenders were significantly more likely to be rejected than those involving African American or Latino offenders. Rejection rates for the complete sample, irrespective of the known identity of the drug, vary between the three racial/ethnic groups and were actually higher for African Americans (16.4 percent v. 14.2

46

c . WOLFF BARNES and R. KINGSNORTH

TABLE 5 PROSECUTORIAL DECISION BY RACE, DRUG INVOLVED, AND OFFENSE LEVEL CHARGED

Variables Race Caucasian African American Latino Total Drug involved a Crack cocaine Powder cocaine Heroin Marijuana Methamphetamine Total Offense level charged Possession Possession for sale Sale/Manufacture Total

Rejected at Outset

Dismissed

Diverted

Reduced to Misdemeanor

Prosecuted as Felony

Total

10.4 16.4 14.2

18.4 24.5 19.1

25.4 9.6 11.7

15.1 3.3 6.2

30.7 46.2 48.8

100.0 100.0 100.0

603 604 162 1,369

-

15.1 39.1 5.3 36.9 34.1

2.1 1.8 9.5 26.9

82.2 60.9 93.0 53.6 39.0

100.0 100.0 100.0 100.0 100.0

239 46 57 84 331 757

18.1 30.3 16.1

31.1 --

14.1 1.8 -

22.1 53.5 76.1

100.0 100.0 100.0

724 389 205 1,318

-

14.6 14.4 7.8

Number of Cases

aAII rejected and dismissed crack, powder, and heroin cases had to be removed from this table because, without file confirmation of the drug, they cannot be distinguished by penal code section alone. Therefore, for comparability, all rejected and dismissed cases, irrespective of drug involved, have been eliminated from this part of the analysis.

percent and 10.4 percent for Latinos and Caucasians, respectively). The difference in findings may reflect the fact that Spohn, Gruhl, and Welch (1987) report their findings for all offenders as a single group without regard to the type of offense (personal, property, and drug); this may mask variation by offense type. In addition, their data are drawn from the period 1977-1980, prior to the drug war of the 1980s. Between 1984 and 1989, drug arrests in Sacramento County increased by 313 percent (Wagner, Mayer, and Alim, 1990) and, as noted in Table 2, African Americans are significantly overrepresented in those arrests. African Americans also were significantly more likely than Latinos and Caucasians to have their cases dismissed (24.5 percent v. 19.1 percent and 18.4 percent). 6 (The overwhelming majority of dismissed cases are in response to a request for dismissal by the prosecutor, rather than an independent judgment of the court contrary to the prosecutor's wishes.) Prosecutors interviewed for this study (Powell, 1993; Bravo, 1993) 7 offered a variety of reasons to account for the higher rates of rejection and dismissal of cases involving African American offenders. First, as noted above, in-

ner city minority drug subcultures are more open, visible, and communal in nature. Thus, a large proportion of drug arrests are group arrests, which occur on street corners or as a result of automobile stops consequent to an aggressive proactive enforcement strategy. For example, one law enforcement officer noted: And if you've got 200 people a night coming off a particular street, picking up drugs, and we send our officers in there, we want them stopped if they've got a tail light out, we want them cited, we want them to know its a miserable place to come to buy drugs. (Wagner, Mayer, and Alim, 1990:A1). In these situations, drugs may be found in the automobile or where they have been thrown on the ground, but if they cannot be tied to a particular individual, as is frequently the case, charges against all members of the group may be rejected or dismissed. Second, police portray themselves as under constant community pressure to clean up neighborhoods because of the more public nature o f inner city drug subcultures. If this is a credible explanation for law enforcement strategies, then ar-

Race, Drug, and Criminal Sentencing

rests become a way of responding to those pressures and the quality o f the arrests is a secondary consideration, s Third, in the view of some prosecutors, arrests by city patrol officers (which account for the bulk of drug arrests) are more likely to be plagued by due process problems than arrests by county sheriff officers. Prosecutors attribute this to the fact that all sheriff's deputies must complete a period of three to five years of duty at the county jail prior to going on patrol and, thus, they are more experienced officers than city police who are placed on patrol immediately after academy training. For this reason, searches conducted by city officers, who police minority neighborhoods, are perceived by some prosecutors as more likely to involve search and seizure violations (Powell, 1993). Fourth, the quantity of drugs seized is a factor in determining case disposition. Rock cocaine arrests often involve extremely small amounts (known on the street as "kibbles and bits") found on the floor of a car or in a suspect's pocket. If the amount is too small for analysis (e.g., below one hundredth of a gram), it will be rejected by the crime lab and the case will be dismissed. Finally, one prosecutor offered his judgment that the Sacramento City Police Department was a numbers driven department. In his view, the chief of police, during the period under study, saw a large volume of arrests as a means of building the police department budget. In contrast to the difficulties associated with building solid prosecutions for crack cases, methamphetamine prosecutions were seen as posing fewer problems. Sheriff's department arrests were seen by prosecutors as more likely to involve careful police work than the "sweeps" engaged in by city officers. Moreover, most methamphetamine use in the county is by injection and this means that offenders are sometimes in possession of paraphernalia at the time of the arrest. This increases the likelihood of a successful prosecution and, therefore, diminishes the likelihood of case dismissal (Powell, 1993). The regression model distinguishing rejected or dismissed cases from all others (diverted or prosecuted as a misdemeanor or felony) is much more successful in predicting

47

the latter than the former (97 percent v. 12 percent, respectively), reflecting the absence of variables that capture the discretion involved in arrest. A charge of possession for sale is strongly predictive of rejection or dismissal unless marijuana is involved, in which case charges are filed. Women are more likely to have charges rejected or dismissed unless they are charged with heroin, in which case charges are filed (Table 6). While rejection and dismissal are more common among cases involving African Americans, diversion is much more likely among those involving Caucasians (25.4 percent v. 9.6 percent and 11.7 percent for African Americans and Latinos, respectively-see Table 5). This difference also can be traced to provisions in the state's penal code. Under California law (California Penal Code, 1990), diversion means that criminal proceedings are suspended for a period up to one year, during which time the defendant is required to complete a drug treatment program involving a minimum of sixteen hours of drug counseling. Successful completion of the program is followed by dismissal of all criminal charges and their elimination from the individual's arrest record. Access to diversion is a right available to all felony drug defendants, provided they satisfy criteria designated by law. These criteria include: the criminal charge must be for simple possession, not possession for sale, or sale; violence cannot be involved in the instant offense; there cannot be felony convictions or diversion placement in the previous five years; and there cannot be revocation o f p r o b a t i o n / p a r o l e without its subsequent successful completion (California Penal Code, 1990). These provisions produce a racial difference in the likelihood of receiving diversion because, for the reasons noted above, Caucasians are substantially more likely to be charged with simple possession than African Americans or Latinos, who are more apt to be charged with possession for sale or sale, precluding placement on diversion (see Table 4). In addition, since the great majority of crack users are African American, and African Americans are somewhat more likely than Caucasians to have a prior felony conviction (18 percent v. 10 per-

48

c . WOLFF BARNES and R. KINGSNORTH

TABLE 6 SUMMARY OF LOGISTIC REGRESSION MODELS OF PROSECUTORIAL OUTCOMES Variables Percent correctly predicted Caucasian Latino Gender Methamphetamine Marijuana Heroin Powder Charge Possession Possession for sale Priors Methamphetamine by charge Possession Possession for sale Marijuana by charge Possession Possession for sale Heroin by gender Constant c Residual chi-square Number of cases

Reject~Dismiss v. All Others

Felony v. Misdemeanor

Misdemeanor~Felony v. Diversion

12% v. 97% a

92% v. 95%

95% v. 30%

-.0049 b

+.0442

+. 0001

.0000 +.0168 +.0000 .0447 +.3627 -.0208 .0000 +.9838 -.0000 -.0476 -.0000 .2215 1,017

.3406 -. 7414 -.7904 +.6907 . 0000 -.0000 +.8781 . 0038 -.9430 -.0008

.0004 -. 5846 -.6933 +.0212

+.6686 .9597 415

+.5455 . 9790 506

. 0000 -.0145 -.0000

aThe value assigned a 1 is listed first. The percent correctly predicted follows the order listed. bTabled values are the row variable's significance level in the column's model, accompanied by the sign of the beta weight. CTheconstant consists of the following categories of three dummy variables: African American offenders, those charged with crack cocaine, and those charged with sale. Among the dichotomized independent variables, a 1 is assigned to men and those with one or more priors.

cent), a lower diversion rate for this group would be predicted. The regression distinguishing those diverted from those fully prosecuted reflects the criteria designated by law. Those with priors and charged with sale are prosecuted. Discretion in the assignment of diversion, however, lowers its predictability (30 percent v. 95 percent for those fully prosecuted). Some charged with possession for sale (e.g., those arrested for marijuana) are diverted, as are w o m e n - i n d e pendent of the drug or charge (Table 6). Charge reduction from a felony to a misdemeanor occurs more frequently in cases involving Caucasian offenders (see Table 5). Caucasians are approximately two and onehalf times as likely as Latinos and five times as likely as African Americans to have their offenses reduced to a misdemeanor. Consequently, they are significantly less likely than African Americans and Latinos to have their drug offenses prosecuted as felonies (30.7 per-

cent v. 46.2 percent and 48.8 percent, respectively, in the total sample). It is believed that the difference is due, not to racially motivated decision making at the prosecutorial level, but to Caucasians' choice of methamphetamine and marijuana (87.4 p e r c e n t ) - the only drugs the California Penal Code allows to be reduced to a misdemeanor (see Table 1). 9 When African Americans and Latinos are charged with these same drugs, they experience very similar processing outcomes. Although the numbers are small, felony charges were filed against 34.9 percent of sixty-three African Americans involved with marijuana or methamphetamine, compared to 30.6 percent of Latinos (N = 49) and 30.3 percent of Caucasains (N = 452). Moreover, 19.0 percent of African Americans charged with these drugs were diverted, compared to 24.5 percent of Latinos and 26.5 percent o f Caucasians. (None of these differences is statistically significant.) In short, there is no support for the

Race, Drug, and Criminal Sentencing

racially discriminatory hypothesis in prosecutorial decision making when the nature of the drug is controlled. The regression analysis supports this interpretation. Race is rejected for inclusion in the model, possession of methamphetamine and possession for sale of marijuana significantly predict prosecution for a misdemeanor. The charge is of borderline significance because, by law, its effect varies by the type of drug (Table 6). Table 5 also presents prosecutorial decision making by the type of drug for those cases fully prosecuted or diverted, and further illustrates the points discussed above. Methamphetamine cases and, secondarily, marijuana cases are significantly more likely to be reduced to a misdemeanor than those involving other drugs because the penalty structure specifically authorizes this reduction for these two drugs. 1° Crack cocaine and heroin cases are significantly less likely than the other three drugs to be diverted because, as noted above, the users of these drugs are less likely to be charged with simple possession and are more likely to have prior records. Finally, methamphetamine and marij uana charges are less likely to be prosecuted as felonies, reflecting the law's greater flexibility with respect to these drugs. Conversely, heroin and crack cocaine are more likely to be prosecuted as felonies (82 percent and 93 percent, respectively). These drug based, decision-making practices disproportionately benefit Caucasians, primarily users of methamphetamine and marijuana, rather than African Americans, specializing in crack cocaine, or Latinos, who deal equally in heroin and methamphetamine. Offense level interacts with the structure of the drug market and legal restrictions on diversion and charge reduction in strongly influencing prosecutorial decisions (Table 5). Since only cases charged with possession can be reduced to a misdemeanor or diverted, almost all cases charged with possession for sale or sale that are not rejected or dismissed are filed as felonies. The few exceptions involve persons charged with possession for sale in which the charge was subsequently reduced to simple possession. Table 5 also indicates that de-

49

fendants charged with possession for sale are substantially more likely than those charged with possession and particularly sale to have their cases rejected or dismissed. This reflects the previously discussed lower quality o f arrests associated with law enforcement practices in African American inner city areas.

Sentencing Outcomes Table 7 describes the relationship between conviction offense and sentence severity. Offenders convicted of simple possession are more than seven to eight times as likely to receive a low jail term as offenders convicted of the more serious offenses of possession for sale and sale, and they are substantially less likely to receive a prison term. Table 7 also reveals dramatic differences in the system's response to drug of choice. Cases involving marijuana and methamphetamine are much more likely to receive short jail terms and much less likely to receive prison terms, since more of these cases have been reduced to misdemeanors. Since crack and powder cocaine and heroin cases are ineligible for this reduction, it follows that they receive the more punitive responses. Table 7 clearly demonstrates the more lenient sentencing outcomes associated with offenses involving possession a n d / o r those involving marijuana and methamphetamine. It also shows the implications of these sentencing outcomes for different racial/ethnic groups. Caucasians receive short jail terms twice as often as Latinos and five times more frequently than African Americans, and they go to prison half as often. This is a direct reflection of their greater involvement in drugs for which they can be charged with misdemeanors, and their greater likelihood of being charged with simple possession. When the sentences of African Americans and Latinos involved in marijuana and methamphetamine are compared with Caucasians (not shown in the table), significant differences do not emerge. For example, 5.1 percent of Caucasians (N-- 452), 6.3 percent of African Americans (N = 63), and 4.1 percent of Latinos (N = 49) charged with these drugs receive

50

C. WOLFF BARNES and R. KINGSNORTH

TABLE 7 SENTENCE BY RACE, DRUG INVOLVED, AND LEVEL OF CONVICTION OFFENSE

Variables Race Caucasian African American Latino

Less than 15 Days in Jail

16+ Days in Jail

Prison

Total

37.8 7.8 19.4

49.8 65.4 56.7

12.4 26.8 23.9

100.0 100.0 100.0

259 231 67 557

4.5 14.3 3.7 33.3 43.4

66.8 60.7 64.8 61.4 44.7

28.6 25.0 31.5 5.3 11.9

100.0 100.0 100.0 100.0 100.0

199 28 54 57 219 557

32.2 3.8 4.6

53.6 61.0 71.3

14.2 35.2 24.1

100.0 100.0 100.0

289 105 108 502

Total Drug involved Crack cocaine Powder cocaine Heroin Marijuana Methamphetamine Total Level of conviction offense Possession Possession for sale Sale/Manufacture Total

prison terms and 23.7 percent of Caucasians, 22.2 percent o f African Americans, and 24.5 percent of Latinos receive high jail terms. This strongly suggests that prosecutorial decision making is driven by the penalty structure of the law and law enforcement proactive strategies, rather than the race of the offender. The regression model distinguishing prison and nonprison sentences (Table 8) again supports this interpretation. Race is rejected for inclusion in the model; having a prior conviction is the model's most important v a r i a b l e predicting a prison t e r m - a n d involvement with methamphetamine is predictive of jail. All other things being equal, women are more likely to receive jail than prison. The small number of cases receiving a prison term (110) lowers the predictability of this option (36 percent v. 93 percent for jail). The same patterns occur when the length of the prison terms is examined (Table 9). Prison terms for simple possession are shorter (three-fourths are two years or less), while those for possession for sale and sale are longer (82.4 percent and 96.2 percent, respectively, are three years or more). Consistent with the penalty structure of the law, offenders charged with crack and heroin offenses receive the longer prison terms. For example, 50.9 percent and 45.1 percent of those charged with crack

Number of Cases

and heroin offenses, respectively, received prison terms o f four years or more. Sentences of this length were received by only 26.9 percent o f methamphetamine offenders; only three marijuana offenders went to prison and none received sentences exceeding three years. The impact on sentencing of drug type and offense severity demonstrated in Table 8 combine to produce dramatically different prison terms for members of different racial/ethnic groups. Caucasians receive the shorter prison terms - two-thirds are sentenced to two years or l e s s - while African Americans and Latinos receive the longer terms, with two-thirds going to prison for three years or more. The correlation of drug and charge and their combined correlation with race can be seen in the set of regression models predicting the length of the prison term (see Table 8). When race is offered for inclusion in the model, it is accepted as the more efficient indicator of this correlation. Caucasian offenders receive shorter prison terms. Charge is the most significant variable, with sale predictive o f terms in excess of three years. When race is n o t offered for inclusion, its effects are absorbed by charge, which becomes more significant. Information on prior convictions adds to the model's strength when race is inc l u d e d - its effects operating independently of

Race, Drug, and Criminal Sentencing

51

TABLE 8

SUMMARY OF LOGISTIC REGRESSIONMODELS OF SENTENCING OUTCOMES

Prison v. No Prison a

Variables Percent correctly predicted Caucasian Latino Gender Methamphetamine Marijuana Heroin Powder Charge Possession Possession for sale Priors Constant b Residual chi-square Number of cases

36% v. 93%

Length of Prison Term >_3 Years v. <_2 Years With Race Included

Length of Prison Term >_3 Years v. <_2 Years With Race Excluded

Priors Included Priors Excluded

Priors Included

Priors Excluded

91% v. 6 5 % * *

92% v. 56% * *

86% v. 74% -.0561

92% v. 56% -.0739

.0002 -.0001 -.0795 +. 1034 +.0078 .6924 74

.0001 -.0001 -,0601 * +.0005 .8746 105

+.0391 -.0013 -.6374

+.0000 -.0000 .8738 440

.0000 -.0000 -.0372

.0000 -.0000 -.0324 * +.0007 .5882 105

+.0012 .7884 74

* Indicates variables omitted from the list offered for inclusion in the model. aThe value assigned a 1 is listed first. The percent correctly predicted follows the order listed. Tabled values are the row variable's significance level in the column's model, accompanied by the sign of the beta weight. bThe constant consists of the following categories of three dummy variables: African American offenders, those charged with crack cocaine, and those charged with sale. Among the dichotomized independent variables, a 1 is assigned to men and those with one or more priors.

race. When race is not made available for model construction, priors drop out. This suggests an interaction of priors and race, which clouds the former's effect when the latter cannot be controlled. The skewed distribution of

priors by race and drug also may contribute to its lack of effect. H With the exception of the model distinguishing felony from misdemeanor prosecution, which predicts 92 percent and 95 percent,

TABLE 9 LENGTH OF PRISON TERM BY RACE, DRUG INVOLVED, AND LEVEL OF CONVICTION OFFENSE

Variables Race Caucasian African American Latino

16 Months

24 Months

36 Months

48 Months

60+ Months

Total

34.4 14.5 12.5

31.3 16.1 25.0

15.6 22.6 18.8

15.6 27.4 31.3

3.1 19.4 12.5

100.0 100.0 100.1

32 62 16 110

12.3 14.3 17.6 33.3 38.5

15.8 42.9 23.5 33.3 26.9

21.1 28.6 23.5 33.3 11.5

29.8 14.3 33.3 23.1

21.1 11.8 3.8

100.0 100.0 100.0 100.0 100.0

57 7 17 3 26 110

39.0 5.4 3.8

36.6 16.2 -

14.6 21.6 30.8

7.3 35.1 42.3

2.4 21.6 23.1

100.0 100.0 100.0

41 37 26 104

Total Drug involved Crack cocaine Powder cocaine Heroin Marijuana Methamphetamine Total Level of conviction offense Possession Possession for sale Sale/Manufacture Total

Number of Cases

52

c. WOLFF BARNES and R. KINGSNORTH

respectively, those models predicting length of prison term are the most effective predictors. Offering priors for inclusion improves the prediction of shorter terms (74 percent and 65 percent v. 56 percent without it) and reduces slightly the successful prediction of longer ones (86 percent and 91 percent v. 92 percent without it). The best model includes both race and priors (Table 8).

CONCLUSIONS Most recent analyses routinely control legal factors (number of priors and offense severity) in assessing the effect o f race in criminal court processing and sentencing. This study sought to elaborate the more complex role of race in criminal justice processing by focusing on the interaction o f race with the larger context of the law's penalty structure, the nature o f drug markets, and numbersdriven law enforcement strategies as these affect the level of charge severity. It has been shown that different racial/ethnic groups are associated with different drugs of choice and, because the criminal law provides for variable penalties based on the type of drug, racial and ethnic minorities receive more severe treatment from the criminal justice system than Caucasians. Thus, Caucasians, because of their use of methamphetamine and marijuana, are more likely to have their cases reduced to misdemeanors and, therefore, receive the shorter jail terms associated with misdemeanor convictions. Furthermore, the lesser prison terms prescribed by law for methamphetamine offenses means that Caucasians, when sentenced to prison, receive shorter sentences than African Americans and Latinos. The highly political nature of the war on drugs, with its attendant pressures on law enforcement to produce a high number of arrests, leads law enforcement to favor strategies most likely to produce those results. Thus, minorities, and African Americans in particular, are more at risk of arrest because of the more public nature of the drug market in which they are involved. In streets, parks, and known crack houses, sweeps, sting operations, and proac-

tive enforcement strategies generally produce immediate organizational rewards in the form of large numbers of easy arrests. Because these enforcement strategies often subordinate quality to quantity, many such arrests offer insufficient evidence for a prosecutor to sustain the burden of proof. Thus, a greater proportion o f African American and Latino drug cases are rejected and dismissed by the prosecutors. Moreover, these strategies result in African Americans and, secondarily, Latinos, being charged much more frequently with the more serious charges of possession for sale and sale; in contrast, almost two-thirds of Caucasians are charged with simple possession. Charge severity, in turn, critically shapes eligibility for diversion as well as the likelihood and length of prison terms when imposed. These results raise a significant public policy issue: whether the specific dangers posed by these drugs justifies the different penalties. The absence of a consistent relationship between harm and societal response is a recurring theme in discussions of contemporary drug policy. For example, Jonas (1991) has noted: One must conclude that the legal status of the primary recreational drugs has been determined chiefly by (changeable) economic, political and moral considerations. Logic, biomedical and epidemiological knowledge, and considerations of true social and economic costs, appear to have played little role in the decision-making process. (Jonas, 1991:169) Pharmacologically, there would not seem to be a substantial basis for treating methamphetamine more leniently than heroin or cocaine. Methamphetamine is regarded by many authorities (e.g., Abadinsky, 1989) as a pharmacological cousin of cocaine that produces very similar effects on the user. Both drugs, for example, have a pronounced stimulative effect on the central nervous system. On the other hand, many social scientists have noted the close historical connection between drugs, race, and social policy. Reinarman (1994:97), for example, has argued that drug scares are never about drugs per se, but rather "drug scares are about the use of a drug by particular

Race, Drug, and Criminal Sentencing

groups of people who are, typically, already perceived by powerful groups as some kind of threat." Certainly this view is consistent with many historical analyses of "moral panics" and the societal response to particular drugs. Musto (1987) has observed that, at the turn of the century, the association of smoking opium with immigrant Chinese and cocaine use with southern African Americans greatly facilitated passage of legislation designed to suppress the use of those drugs. Likewise, the association between marijuana and Mexican immigrants in the 1930s contributed to the emergence of stereotypes of users as violent, drug-crazed criminals, which led to passage of antimarijuana legislation at the federal level in the late 1930s (McCaghy and Capron, 1994). Bean (1974) also interpreted the transformations in the British drug control system in the 1960s as a response to the changed social characteristics of the user population in that decade. Continuing in this vein, it is at least arguable that the penalty structure outlined in this study is a response, not to the pharmacological danger of the drug itself, but to the alleged social danger of the user population. Increasing racial tensions in the 1980s and the perceived emergence of a threatening so-called underclass in inner city minority communities may be the critical social and political context accounting for differential punishment of pharmacologically similar drugs. California is by no means the only jurisdiction in which drugs favored by different social groups are differentially punished. Concern with such discrepancies in the penalty structure led the Minnesota Supreme Court in State o f Minnesota v. Russell (477 N.W.2d 886, 1991) to strike down a law punishing offenses involving crack cocaine more severely than those involving powder cocaine. Federal judges, however, have consistently refused to strike down federal laws prescribing more severe penalties for offenses involving crack rather than powder cocaine, ruling that Congress could find a rational basis for regarding crack as more dangerous to society (Checchio, 1992). It appears that Congress may now recognize the injustice embedded in the federal penalty structure since, in April 1994, the

53

House of Representatives voted 424-0 to request the federal sentencing commission to reassess the guidelines for sentencing cocaine offenders. Those guidelines require possession of 100 times as much powder as crack cocaine for defendants to receive equal penalties (House supports, 1994). It seems equally indefensible to argue that the prosecution of methamphetamine offenses as misdemeanors is justified by their less dangerous effects on users and society in general. Although this issue has not yet been addressed by the California courts, a bill was introduced into the 1990/1991 session of the California legislature increasing the penalties for methamphetamine to those prescribed for crack cocaine. It failed to pass. 12

NOTES 1. It should be noted that prosecution and sentencing of defendants charged with m e t h a m p h e t a m i n e oflenses is complicated by the fact that many of these cases are referred to the Eastern Federal District of California (centered in Sacramento) for processing. Methamphetamine cases that are processed in federal court, however, are more serious cases involving manufacture as well as sale and typically involve multiple charges (Thomas, 1994). Such cases would have been excluded from the sample, which focuses on less serious offenders charged with a single drug offense. Glenn T h o m a s is chief of the Federal Pre-Trial Services Agency in the Eastern Federal District of California. 2. These percentages are based on the number of cases with district attorney files. They exclude offenders whose cases were rejected or dismissed or reduced to a misdemeanor. As will be noted later in the text, files for these cases either do not exist or contain limited information. 3. There are several reasons for the inability to identify the drug in these cases. First, some of the Health and Safety Code sections fail to distinguish a m o n g groups of drugs. While those involving methamphetamine and marijuana are homogeneous, heroin and powder and crack cocaine often are grouped under the same code sections. For example, possession of crack, powder cocaine, and heroin are charged under the same penal code section and, thus, cannot be distinguished from each other by this method. The same is true for the sale of these drugs and for possession for sale of heroin and powder cocaine. Possession for sale of crack, however, is identified separately. With fully prosecuted or diverted cases, where district attorney files are available, this information can be secured from the f i l e s - u n l e s s , as happened in 137 cases, the file was unavailable. A file may not be available if an offender has violated his or her probation; in this situation, the original file is removed and placed in circulation for purposes of sentencing. In the case of multiple defendants, several files could have been withdrawn from circulation even

54

c . WOLFF BARNES and R. KINGSNORTH

though only one offender violated probation, or a file could have been filed under a co-defendant's name and, through coder oversight, been overlooked. Finally, a case simply may have been misfiled. The relatively small percentage of cases involved, coupled with their even distribution across the categories of diversion, misdemeanor, or felony prosecution, persuades the authors that their exclusion from the relevant tables does not significantly distort the data. Another 195 non-drug identified cases were among those rejected or dismissed; 106 rejected, 89 dismissed. With respect to the rejected cases, the absence of a file and the penal code's inclusion of several drugs under the same section prohibits identification of the drug. The drug involved in dismissed cases may be unknown because the quantity of drugs seized is insufficient for laboratory identification. Indeed, this is often the reason for case dismissal. 4. Lockwood, Pottieger, and Inciardi (1995) recently have summarized social science research as showing that, while there are higher rates of crack use among African Americans, there are more non-African American crack users. 5. Melissa McElheney is a public defender in the felony unit of the Sacramento County Public Defender's office. 6. Appendix A indicates that the racial differences in rejections and dismissals are largely determined by the arrests of Caucasians for methamphetamine and of African Americans for crack. 7. Glen Powell is a prosecutor in the Sacramento County District Attorney's office who, at the time of this study, was assigned to the intake unit. Anna Bravo is lead attorney in the misdemeanor section of the Sacramento County District Attorney's office. 8. See Tonry (1995) for a discussion of this question. 9. It must be emphasized that not all methamphetamine possession cases are reduced to misdemeanors. This is a discretionary judgment by prosecutors based on criteria such as: the quantity of drugs involved, usually less than one-half gram; the absence of any elements suggesting sales; and the absence of a significant prior record. 10. The small number of crack and heroin cases reduced to a misdemeanor means that the original charge was dismissed and a different charge-possession of paraphernalia-was substituted. 11. See Appendix B. 12. AB 155 died in the Ways and Means Committee of the California legislature in 1992. REFERENCES Abadinsky, H. (1989). Drug abuse: An introduction. Chicago: Nelson-Hall. Bean, P. (1974). The social control o f drugs. London: Martin Rob.ertson. Blumstein, A. (1982). On the racial disproportionality of United States prison populations. Journal o f Criminal Law and Criminology 73:1259-81.

Blumstein, A. (1993). Making rationality relevant: The American Society of Criminology 1992 Presidential Address. Criminology 31(1): 1-16. Blumstein, A., Cohen, J., Martin, S. E., and Tonry, M. H., eds. (1983). Research on sentencing: The search for reform. Washington, DC: National Academy Press. Bravo, A. (1993). Interview by Rodney Kingsnorth. Sacramento District Attorney's Office, Sacramento, California, May. Bureau of Justice Statistics (1992). Drugs, crime and the justice system. Washington, DC: U.S. Department of Justice. California Penal Code. Section 1000.1. (1990). St. Paul, MN: West Publishing Co. Checchio, M. (1992). The bias in drug laws. California Lawyer 12(5): 19. Gibson, J. L. (1978). Race as a determinant of criminal sentences: A methodological critique and a case study. Law and Society Review 3:455-78. Gottfredson, M. R., and Gottfredson, D. (1980). DecisionMaking in criminal justice: Towards the rational exercise o f discretion. Cambridge, MA: Ballinger Publishing Co. Hagan, J. (1974). Extra-Legal attributes and criminal sentencing: An assessment of a sociological viewpoint. Law and Society Review 3:357-85. Hagan, J. (1994). Crime and disrepute. Thousand Oaks, CA: Pine Forge Press. Hagan, J., and Bumiller, K. (1983). Making sense of sentencing: A review and critique of sentencing research. In Research on sentencing: The search f o r reform, Vol. 2, eds. A. Blumstein, J. Cohen, S. E. Martin, and M. H. Tonry. Washington, DC: National Academy Press. Hawkins, D. (1986) Race, crime type and imprisonment. Justice Quarterly 3:251-70. House supports equalizing cocaine penalties. (1994). The Sacramento Bee, 25 April, AI 1. Jonas, S. (1991). The U.S. drug problem and the U.S. drug culture: A public health solution. In The drug legalization debate, ed. J. A. Inciardi. Newbury Park, CA: Sage Publications. Kleck, G. (1981). Racial discrimination in criminal sentencing: A critical evaluation of the evidence with additional evidence on the death penalty. American Sociological Review 46:783-805. Kleck, G. (1985). Life support for ailing hypotheses: Modes of summarizing the evidence for racial discrimination in sentencing. Law and Human Behavior 3: 271-85. LaFree, G. (1980). The effect of sexual stratification by race on official reactions to rape. American Sociological Review 5:842-54. Lockwood, D., Pottieger, A. E., and lnciardi, J. A. (1995). Crack use, crime by crack users, and ethnicity. In Ethnicity, race and crime, ed. D. F. Hawkins. Albany, NY: State University of New York Press. McCaghy, C. H., and Capron, T. A. (1994). Deviant behavior, 3rd ed. New York: Macmillan College Publishing Co. McElheney, M. (1994). Interview by Rodney Kingsnorth, March. Musto, D. (1987). The American disease. 2nd ed. New York: Oxford University Press. Neubauer, D. W. (1992). America's courts and the criminal justice system. 4th ed. Pacific Grove, CA: Brooks/ Cole Publishing.

Race, Drug, and Criminal Sentencing

Paternoster, R. (1984). Prosecutorial discretion in requesting the death penalty: A case of victim-based racial discrimination. Law and Society Review 18:437-79. Paternoster, R. (1991). Prosecutorial discretion and capital sentencing in North and South Carolina. In The death penalty in America: Current research, ed. R. M. Bohm. Cincinnati, OH: Anderson Publishing Co. Peterson, R. D., and Hagan, J. (1984). Changing conceptions of race: Towards an account of anomalous findings of sentencing research. American Sociological Review 49:56-70. Powell, G. (1993). Interview by Rodney Kingsnorth. Sacramento District Attorney's Office, Sacramento, California, January. Reinarman, C. (1994). The social construction of drug scares. In Constructions o f deviance, eds. P. Adler and P. A. Adler. Belmont, CA: Wadsworth Publishing Company. Spohn, C. (1994). Crime and the social control of Blacks: Offender/Victim race and the sentencing of violent offenders. In Inequality, crime and social control, eds. G. Bridges and M. Myers. Boulder, CO: Westview Press Inc.

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Spohn, C., Gruhl, J., and Welch, S. (1987). The impact of the ethnicity and gender of defendants on the decision to reject or dismiss felony charges. Criminology 1:175-91. Thomas, G. (1993). Telephone interview by Rodney Kingsnorth, March. Tonry, M. (1995). Malign neglect. New York: Oxford University Press. Vogel, N. (1993). Mexican drug cartels rising as meth distributors. The Sacramento Bee, 25 September, B5. Wagner, M. G., Mayer, J., and Alim, F. (1990). Most drug abusers are W h i t e - b u t Blacks fill jail cells here. The Sacramento Bee, 16 September, A1. Wilbanks, W. (1987). The myth o f a racist criminal justice system. Monterey, CA: Brooks/Cole Publishing. Zatz, M. S. (1984). Race, ethnicity and determinate sentencing. Criminology 22(2): 147-71.

CASE CITED State o f Minnesota v. Russell, 477 N.W.2d 886 (1991).

APPENDIX A CELL SIZES FOR COMBINATIONS OF RACE, DRUG INVOLVED, AND PROSECUTORIAL DECISION Crack

Powder

Heroin

Marijuana

Methamphetamine

Prosecutorial Decision

C

A

L

C

A

L

C

A

L

C

A

L

C

A

L

Rejected Dismissed Reduced to misdemeanor Felony Diversion Number of cases

1 3 0 7 4 15

23 77 5 187 32 324

0 2 0 4 0 8

0 6 0 10 15 31

0 8 0 9 1 18

0 1 0 9 2 12

0 3 1 14 1 19

0 1 0 8 0 9

0 4 0 31 2 37

1 17 6 22 23 69

3 8 2 18 7 38

2 4 0 5 1 12

35 57 79 115 97 383

8 6 2 4 5 25

4 4 8 10 11 37

Note: C = Caucasian; A = African American; L = Latino.

APPENDIX B CELL SIZES FOR COMBINATIONS OF RACE, PRIORS, AND TYPE OF DRUG Caucasian Type of Drug Crack, powder, or heroin Marijuana Methamphetamine Number of cases

African American

Latino

No Priors

One or More

No Priors

One or More

No Priors

One or More

29 19 191 249

5 1 18 24

130 12 9 151

41 0 0 41

34 4 19 57

10 0 0 10