New Report Shows Big Increase in Arrests for Simple Possession Since 1980

Posted on Categories Criminal Law & Process, Public, Race & Law

Last week, the Bureau of Justice Statistics released an interesting new report, Arrest in the United States, 1980-2009.  I was particularly interested in the data on arrests for simple drug possession or use, which accounted for about ten percent of all arrests in 2009.  This seems a little high (so to speak), especially in comparison to where we were three decades ago with drug arrests.  Between 1980 and 2009, the number of possession/use arrests more than doubled from 200 per 100,000 people to about 450 per 100,000.  The 2009 number actually represents a downturn from a thirty-year high in 2006 (more than 500 per 100,000).

The arrest rates for simple possession and trafficking have not moved in sync, suggesting shifting patterns of enforcement in the War on Drugs.

In 1991, 36 percent of drug arrests were for trafficking, but that number has since dropped to 19 percent.  To judge by these numbers, the War on Drugs is now more than ever targeting users rather than dealers, although I think most people would agree that the dealers are more culpable.  I wonder how much of this trend results from the implementation of a couple thousand drug treatment courts since 1991; one of the recurring concerns about these courts is that they implicitly encourage police to target relatively harmless, low-level drug offenders in the hope that treatment will be made available for them.  It is at least an open question whether such “net-widening” constitutes the best use of scarce criminal-justice and drug-treatment resources.

There is also an interesting racial dimension to the drug arrests.  Although both whites and blacks have experienced increasing arrest rates for possession/use, the black rate has tripled since 1980, while the white rate has only doubled.  The black arrest rate is three times the white rate.  Given that possession/use is the second most common offense for which people are arrested (after only DUI), the possession/use racial disparities are a major driver of overall disparities in arrest rates.

Indeed, the black percentage of possession/use arrests (29 percent) is almost equally equal to the black percentage of arrests overall (28 percent).  These numbers are, of course, much higher than the black percentage of the general population (about 12.5 percent).  The numbers also make for an interesting contrast with DUI, where blacks constitute only 11 percent of arrestees.  The offenses with the largest disparities in arrest rates are gambling (68 percent black) and robbery (55 percent).  Drug trafficking arrestees are about 41 percent black.  Although these offense categories are even more racially lopsided than possession/use, the numbers arrested in those categories are much lower, which is why possession/use might still be thought of as a major driver of overall disparities.  (Query why DUI is so overwhelmingly a white crime and gambling so overwhelmingly black, at least as measured by arrest rates.)

A couple of caveats are in order.  First, arrest rates for a type of crime do not necessarily correlate with the incidence of that crime.  Many crimes go unreported (particularly, but not exclusively, “victimless” crimes like possession/use), and many reported crimes go unsolved.  To a great extent, arrest rates reflect discretionary choices made by police, either at the level of policy (e.g., targeting certain neighborhoods for “broken windows” policing) or at the level of the individual officer.  Thus, for instance, one should not assume that higher black arrest rates for possession/use indicate higher black rates of offending.  Indeed, survey data indicate that about the same percentage of black and white people are drug users.

Second, the arrest numbers used by BJS are based on annual reports made by a large number of police agencies to the FBI.  Within FBI guidelines, there may be some inconsistency in the way agencies collect and report data.  One notable FBI rule, though, requires that an arrest be associated only with the most serious offense charged.  Thus, arrests for relatively minor crimes like possession/use may be underreported to the extent that more serious offenses are also charged.  On the other hand, it is likely that individuals suspected of more serious crimes are sometimes arrested pretextually for crimes like possession/use, which are typically very easy to prove.  In such cases, an arrest may show up in the FBI data as a possession/use arrest, even though the arrest was largely motivated by suspicion of a more serious crime.

Cross posted at Life Sentences.

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