A Judge’s Guide

Similarly, adults of color face dramatically disproportionate rates of arrest, prosecution and
incarceration. 91 While African-Americans constitute just 13 percent of all drug users, they
represent 35 percent of defendants arrested for possessing drugs, 55 percent of those receiving
convictions, and 74 percent of those being incarcerated. 92 Some states’ records of disparate
racial dispositions are even more pronounced, as evidenced by seven states in which African-
Americans comprise 75-90 percent of all incarcerated drug defendants. 93 The racial disparity in
arrest rates, coupled with media attention, perpetuates the misconception that whites do not use
drugs as often as African-Americans, when the opposite is true. Former drug czar William
Bennett clarified that, “The typical cocaine user is white, male, a high school graduate
employed full time and living in a small metropolitan area or suburb.” 94
Annually, close to half of the 700,000 marijuana arrests are Latinos. Such imbalanced
practices permeate every phase of the criminal justice system with little redress by powerful
legal and legislative stakeholders, 95 and often, disastrous consequences for the convicted men
of color. Criminal drug and felony convictions can preclude receipt of financial aid for college
or technical schools, and result in denial of public housing, emergency financial assistance, the
right to vote and apply for civil service jobs and the military. 96 Currently, 13 percent of
African-American adult males (1.4 million) are disenfranchised by virtue of criminal
convictions. 97
While incarceration of all females increased eighty-eight percent from 1990 to 1998, 98 twothirds
are women of color, most of whom are African-American. 99 Of further concern, the
misdemeanor and felony offenses also reflect a disheartening disparity based on race. Although African American
youth are just 13 percent of the juvenile population, they reflect 23 percent of the juvenile referrals. 51 percent of
Texas youth are white, yet only 38 percent of them have been adjudicated in the juvenile court system. Hispanic
youth account for 39 percent of the referrals, and are 36 percent of the juvenile population. Fabelo, T., (2001)
Profiles of Referrals to Selected Juvenile Probation Departments in Texas, Criminal Justice Policy Council Report
pepared for the 77th Texas Legislature, p. 8.
91 Deborah Small, The war on drugs is a war on racial justice, 68 SOC. RESEARCH (Oct. 1, 2001) 2001 WL
24181757.
92 Drugs and Human Rights. Who Goes to Prison for Drug Offenses: A Rebuttal to the New York State District
Attorneys Association. Human Rights Watch World Report, 1999. http://www.hrw.org/campaigns/drugs/nydrugs.htm,
site accessed December 29, 2002.
93 Id. Note that California and New York annually incarcerate more Latino and African-American men than are
graduated from universities and colleges. More than 94 percent of New York inmates serving time for drug
offenses are Latino or African-American. At least 15 states incarcerate African-American drug offenders 20 to 57
times more often than white drug offenders. Small, supra note 45.
94 Holly Sklar, Reinforcing Racism with the War on Drugs, CHAOS OR COMMUNITY? SEEKING
SOLUTIONS, NOT SCAPEGOATS FOR BAD ECONOMICS (1995).
95 Small, supra note 45.
96 Id.
97 US Elections 2000-Losing the Vote: The Impact of Felony Disenfranchisement Laws, Human Rights Watch
World Report (November 8, 2000) at http://www.hrw.org/campaigns/elections/results.htm. Site visited Dec. 29,
2002.
98 U.S. Department of Justice, Bureau of Justice Statistics, Special Report: Women Offenders 6 (1999) (hereinafter
Speical Report) as cited in Paula Johnson, INNER LIVES, VOICES OF AFRICAN AMERICAN WOMEN IN
PRISON 5 (2003).
99 Special Report, id. at 6-7.
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