Crack as Proxy: Aggressive Federal Drug Prosecutions and the Production of Black–White Racial Inequality

Abstract

In this article, we empirically examine jurisdictional variations in federal crack prosecutions to measure whether aggressive crack prosecutorial practices are associated with racial inequality in federal caseload characteristics and outcomes. Building on theories that address the production of inequality in institutional settings, we hypothesize that U.S. Attorneys' offices that are more proactive in charging defendants with crack, relative to other kinds of drugs, and relative to case strength and seriousness, will demonstrate higher rates of black-white racial inequality in case outcomes across the entire criminal caseload. Consistent with theories of institutional racism, our findings demonstrate that aggressive crack prosecutions at the district level are a strong predictor of black-white inequality in conviction rates across the entire criminal caseload, and a much more modest predictor of inequality in final sentence outcomes. We conclude by discussing the importance of organizational-level empirical analyses for more effectively uncovering the conditions under which inequality can and does flourish in legal settings, and suggest possible future lines of inquiry along these lines.

Institutionalizing inequality in the courts: Decomposing racial and ethnic disparities in detention, conviction, and sentencing*

“…Conviction decisions stem from the power of mandatory minimums and other prosecutorial charging policies (Engen, 2009; Fischman & Scanzenbach, 2012), as well as from the leverage gained through pretrial detention (Jones, 2013; Martinez et al., 2019; Schlesinger, 2007; Stevenson, 2016), implemented through prosecutors (Bushway & Forst, 2013). Sentencing may reflect a blend of sentencing guidelines or scores (Rehavi & Starr, 2014) but also prosecutorial recommendations and judges to impose terms (Bushway & Forst, 2013; Lynch & Omori, 2018).…”

“…This individual‐level theoretical orientation is also reflected in the empirical choices that undergird many studies. Although some research broadens this conversation by examining court processes and policies that lead to inequalities (Bushway & Forst, 2013; Engen, 2009; Lynch & Omori, 2018; Schlesinger, 2011; Ulmer, Painter‐Davis, & Tinik, 2016), scholars typically treat “legally relevant” case factors as race neutral (Fischman & Scanzenbach, 2012; Rehavi & Starr, 2014) and only examine direct “race effects” net of these case factors. As Baumer (2013) noted, the “modal” sentencing model generally includes a series of “legally relevant” controls and case characteristics, and then it focuses on racial disparities net of these controls.…”

Racial Innocence: Law, Social Science, and the Unknowing of Racism in the US Carceral State

“…Because researchers reject general population racial proportions as a valid benchmark against which to evaluate disparity, studies depend on baseline measures of group-differentiated criminality (differential involvement) and controls for individual-level criminality (legally relevant factors). These benchmarks and controls reflect racially differentiated policing and prosecution, all reflected in arrest records, offense history, and offense seriousness (Beckett et al 2006, Lynch & Omori 2018, Van Cleve & Mayes 2015. Like many sentencing studies, risk assessments essentially "launder" racial inequalities by declaring criminal history a nonracial and legally relevant predictive factor (Goddard & Myers 2017).…”

“…Many studies test for racism in a discrete moment, examining a snapshot of contact with the carceral state. This method washes out the cumulative effect of racism (Murakawa & Beckett 2010, Omori 2018, Van Cleve & Mayes 2015. Modeling "cumulative disadvantage" in case processing, recent sentencing studies find that black felony defendants face a greater likelihood of prison sentences owing to accrued discrimination across criminal justice decision points (Sutton 2013, Wooldredge et al 2015.…”

A kinder, gentler drug war? Race, drugs, and punishment in 21st century America

“…Policy developments mirrored this racialized rhetoric, as criminal sanctions for those who used or sold crack cocaine were ratcheted up at the federal level and in many states (Alexander, 2010; Lynch, 2011, 2016; Provine, 2007; Reinarman and Levine,1997b). In this context, black people bore the brunt of law enforcement’s intensified campaign to punish those who used and/or sold controlled substances (Alexander, 2010; Beckett et al., 2005, 2006; Duster, 1997; Lynch, 2016; Lynch and Omori, 2018; Provine, 2007).…”