The War on Drugs isn’t very successful or popular, but that doesn’t mean it is racist, as many progressives and some libertarians claim. A left-libertarian argues, “Blacks and whites use drugs at the same rate, yet black people are disproportionately searched, arrested, prosecuted, sentenced, and killed for drug crimes. That’s the definition of systemic racism.”
All of his assumptions are questionable. As another libertarian observed in response, “The drug numbers are based off of unreliable survey data. Additionally: ‘African Americans are nearly twice as likely to buy outdoors, three times more likely to buy from a strangers, and significantly more likely to buy away from their homes.'”” “Also, African Americans are more likely to smoke outdoors.”
That’s from a peer-reviewed study which noted:
African Americans are statistically more likely to engage in risky purchasing behaviors that increase their likelihood of arrest. Using trivariate probit regression with demographic, drug use, and drug market covariates, analyses reveal that African Americans are nearly twice as likely to buy outdoors (0.31 versus 0.14), three times more likely to buy from a stranger (0.30 versus 0.09), and significantly more likely to buy away from their homes (0.61 versus 0.48). These results provide an additional explanation for the differential in arrest rates between African Americans and Whites.
This debunks a common argument that police are racist, by showing that rates of open drug use are not the same for different races. Police seldom arrest people for drug use or purchases behind closed doors, because they don’t even know about it. But they are much more likely to arrest people who buy or use drugs in public. As a lawyer points out, “Police can’t arrest people for crimes they don’t see or detect. So police aren’t racist just because arrest rates differ by race, even when crime rates are the same, if one race commits crimes more in the open, making them easier to detect.”
A New York Times article similarly notes that “African Americans may also be more apt to face arrest, according to researchers, because they might be more likely to smoke marijuana outdoors, attracting the attention of the police.”
Even if the assumption that “Blacks and whites use drugs at the same rate” were true — and even if they actually used drugs outdoors at the same rate, which is not the case — this statistic still wouldn’t show racism by the police. As a lawyer observes: “Drugs are often caught in searches of people arrested for other things — and the higher black violent crime rate leads to blacks being arrested for other things at a higher rate, then convicted for drugs at a higher rate, even when cops are NOT racist.”
As a black conservative points out, there is little basis to the progressive claim that the criminal justice system is racist because blacks are incarcerated at a higher rate:
Progressives claim that racism in the criminal justice system is the cause of “mass incarceration” and the fact that blacks comprise a higher fraction of the prison population than the general population.
But racism isn’t the cause of these things. Back when society was much more racist, prisons were less heavily black. Because society didn’t do much to protect black people from black criminals by incarcerating them. Prisons were mostly white in the mid-20th Century, just before the Supreme Court declared segregation unconstitutional.
Even today, black murderers are less likely to be convicted and imprisoned than white murderers. Police clearance rates are already disturbingly low for murders committed against blacks. Chicago solves only 47 percent of cases when a murder victim is white, 33 percent when a victim is Hispanic, and a wretched 22 percent of cases when the victim is black, according to NPR.
To be sure, people incarcerated for murder are more heavily black than the general U.S. population. But that’s because people who commit murder are disproportionately black. As the American Journal of Preventive Medicine has pointed out, “Homicide rates have consistently been at least ten times higher for blacks aged 10-34 years compared with whites in the same age group between 1995 and 2015.” But blacks are not incarcerated for murder at ten times the white rate. According to the FBI’s Uniform Crime Reports, 53.3% of all people arrested for murder and non-negligent manslaughter were black. (By contrast, about 13% of all Americans are black).
To the extent that racism persists in the criminal justice system, it could make black people less likely to cooperate with the police, less likely to report crimes against other people — and murders of black people by blacks could go unpunished as a result. That would mean fewer black offenders in jail, not more.
For non-homicide crimes, though, the victims themselves can call the police, and they do, at similar rates for blacks and whites. And police nowadays usually investigate these crimes in a racially fair way. A 2021 study by the federal Bureau of Justice Statistics found that although blacks are arrested for serious nonfatal violent crimes at more than twice the rate of people in general, this is not due to racism. Instead, arrests are correctly “proportional” to the actual crime rate, and to the crimes actually reported to the police, which often are committed by black offenders. As it found, in 2018, “White and black people were arrested proportionate to their involvement in serious nonfatal violent crime overall and proportionate to their involvement in serious nonfatal violent crime reported to police.” (See Allen J. Beck, Race and Ethnicity of Violent Crime Offenders and Arrestees, 2018).
In short, violent crimes by black offenders are not being overreported; nor are they being underreported, at least as to nonfatal violent crimes.
Most of the people in state prison are there for violent crimes, not things like drugs. Only 4% of people in state prison are there for drug possession. And drug possession is often discovered only after an offender is arrested for something else. The lawyer and former federal court clerk Ted Frank says that “nobody gets arrested for marijuana possession. They get arrested for other things and have the marijuana charge tacked on after they’re searched.” So racial bias in the war on drugs is not the reason why blacks are overrepresented in prison. The higher black crime rate is the reason.
This doesn’t mean there’s no racism in the criminal justice system. Recent research shows statistically-measurable racial bias in police stops — the phenomenon of “Driving While Black,” which might explain as many as 10% of all police stops of black motorists. Prominent African-Americans such as Senator Tim Scott (R-SC) have been stopped repeatedly when a similarly-situated white person would not. I’ve been stopped in such circumstances, too. This may be a reason to pass legislation that restricts police from stopping motorists for trivial reasons. In some cases, it may also be a good reason to bring a class-action lawsuit for racial discrimination.
