MEMORANDUM Washington State Prosecuting Attorneys. Racial Disproportionality in the Criminal Justice System

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1 MEMORANDUM Washington State Prosecuting Attorneys Racial Disproportionality in the Criminal Justice System INTRODUCTION At the 2011 Winter Meeting, the Korematsu Center for Law and Equality made a presentation about the Task Force on Race and the Criminal Justice System s Preliminary Report on Race and Washington's Criminal Justice System. This presentation raised many questions, including the validity of some of the studies relied upon in the study. Several Prosecuting Attorneys requested a summary of the studies related to Washington and elsewhere to allow prosecutors to intelligently engage in discussion about this issue. This memorandum discusses what is meant by racial disproportionality, the factors that lead to racial disproportionality, Washington-specific studies regarding racial disproportionality, and Washington responses to racial disproportionality. RACIAL DISPROPORTIONALITY DEFINED Racial disproportionality in the criminal justice system exists when the proportion of a racial or ethnic group within the control of the system is greater than the proportion of such groups in the general population. The causes of such disproportionality are varied and can include differing levels of criminal activity, law enforcement emphasis on particular communities, legislative policies, and/or decision making by criminal justice practitioners who exercise broad discretion in the justice process at one or more stages in the system. The evidence of disproportionality does not, in and of itself, establish racial bias. Illegitimate or unwarranted racial disproportionality in the criminal justice system, which may be termed disparity, results from the dissimilar treatment of similarly situated people based on race. In some instances this may involve overt racial bias, while in others it may reflect the influence of factors that are only indirectly associated with race. In some cases disparity results from unguarded, individual- or institution-level decisions that are race-based. Structural racism, derived from the longstanding differential treatment of those with characteristics highly correlated with race (e.g., poverty) can cause or aggravate racial disproportionality as well. There is clear evidence of racial disproportionality in Washington s prison population. However, that is not evidence in and of itself, that the disproportionality is the result of racial bias. The data, moreover, indicates that racial disproportionality is decreasing. 1 1 Sentencing Guidelines Commission, 20 Years in Sentencing a Look at Washington State Adult Felony Sentencing Fiscal years 1989 to 2008 at 21 (Dec. 2010) ( In 1990, Whites received 72 percent of sentences, Blacks received 18 percent while Others held 10 percent. By 2005, Whites increased to 77 percent, Blacks decreased to 14 Page 1 of 41

2 There is some evidence that race is a proxy for other societal ills, including economic distress and educational deficits. High school dropouts account for most of the rise in African American incarceration rates. Research reveals that an African American man born in the late 1960s who dropped out of high school has a 59% chance of going to prison in his lifetime whereas an African 2 American man who attended college has only a 5% chance. Similarly, white men born in the late 1960s faced a lifetime risk of imprisonment that is more than ten times higher for those who dropped out of high school than for those who attended some amount of college. 3 The major participants in the criminal justice system, including prosecutors, are committed to reforms that will reduce illegitimate or unwarranted racial disparity. INTERPRETATION OF STUDIES A large number of national and local studies examine racial disproportionality. When reviewing such studies, one must first examine the research protocol. Was the same test of race or ethnicity used at every point? What types of crimes were examined? How does the structure of this study compare to the structure of a study that yielded other conclusions? Inappropriate Generalization Only a few studies have been conducted in Washington regarding officer contact with citizens. The studies focus almost entirely on drugs. Generalizing the results of these studies to all types of crimes, resulted in one court to find that there is discrimination in Washington's criminal 4 justice system on account of race. This conclusion, however, is based upon an unwarranted premise that people of every race and ethnicity commit all types of crimes at roughly the same rate. Nationwide, it is believed that African Americans and Caucasians use drugs at roughly the same rates, but African Americans are significantly more likely to be arrested and imprisoned for 5 drug crimes. The statistics on selling drugs are less clear-cut, but here too the racial disparities in percent and Others decreased to 9 percent. ; For every 1000 Blacks in 1990, there were 20 felony sentences, for Others there were 4 and for Whites there were 3. By 2005, the rate for Blacks had decreased to 17 per 1000, Others had decreased back to 4 per 1000 and Whites increased to 4 per ). 2 James Forman, Jr, Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, NYU Law Review, April 2012, Yale Law School, Public Law Working Paper No. 243, at 45. Electronic copy available at: 3 Id., at 46, citing Bruce Western, Punishment and Inequality in America (2006) (The lifetime risk of incarceration for whites who dropped out of high school is 11.2%; for those who attended college, it is only 0.7%.). 4 Farrakhan v. Gregoire, 590 F.3d 989, 995 (9th Cir.), vacated by, rehearing granted by Farrakhan v. Gregoire, 603 F.3d 1072 (9th Cir.), decision on rehearing Farrakhan v. Gregoire, 623 F.3d 990 (9th Cir. 2010). 5 Michael Tonry & Matthew Melewski, The Malign Effects of Drugs and Crime Control Policies on Black Americans, in Thinking about Punishment: Penal Policy Across Space, Time and Discipline (Michael Tonry ed. 2009). Page 2 of 41

3 arrest and incarceration rates exceed any disparities that might exist in the race of drug sellers. 6 Violent crime is a different matter. While rates of drug offenses are roughly the same throughout the population, African Americans are overrepresented among the population for violent offenses. For example, the African-American arrest rate for murder is seven to eight times higher than the white arrest rate; the black arrest rate for robbery is ten times higher than the white arrest 7 rate. Murder and robbery are the two offenses for which the arrest data are considered most reliable 8 as an indicator of offending. On the other hand, Caucasians are overrepresented among the 9 population for sex offenses. Early studies concluded that 80 percent of the racial disproportionality in imprisonment could 10 be explained by differential rates of crime commission. Today, the same 80 percent figure is 6 Id. at Henry Ruth & Kevin R. Reitz, The Challenge of Crime: Rethinking Our Response 33 (2003). For other crimes the differences are smaller. For burglary, larceny, and motor vehicle theft, for example, the black arrest rates in 1990 were three to four times the white arrest rates. Id. 8 Alfred Blumstein, Racial Disproportionality of U.S. Prison Populations Revisited, 64 U. COLO. L. REV. 743, 752 (1993); Gary Lafree, Losing Legitimacy: Street Crime and the Decline of Social Institutions in America 49 (1998) (.Both critics and supporters of UCR [Uniform Crime Reports] agree that its quality is generally highest for more serious crimes... because citizens are more likely to report more serious crimes to police and police are more likely to make arrests for more serious crimes..). 9 See Washington State Institute for Public Policy, Sex Offender Sentencing in Washington States: How Sex Offenders Differ From Other Felony Offenders at 2 (Sep. 2, 2005) (offenders involved in felony sex convictions are predominately European American (84 percent)); Janis Wolak, Kimberly Mitchell & David Finkelhor, Crimes Against Children Research Ctr., Internet Sex Crimes Against Minors: the Response of Law Enforcement viii (2003) (a study sponsored by the Department of Justice reporting that the.vast majority of [Internet sex-crime] offenders were non-hispanic White males older than 25 who were acting alone.); Loren Rigsby, A Call for Judicial Scrutiny: How Increased Judicial Discretion Has Led To Disparity and Unpredictability in Federal Sentencings for Child Pornography, 33 Seattle U. L. Rev. 1319, (2010) (explaining that 85.6% of child pornography defendants are white, and that these defendants are, on average, much older and more educated than the majority of defendants in federal prosecutions). Sentences for child pornography in Washington were significantly reduced by the Washington Supreme Court s unit of prosecution decision in State v. Sutherby, 165 Wn.2d 870, 204 P.3d 916 (2009). Legislative action in 2010 should result in a lengthening of such sentences. See generally Laws of 2010, ch See generally Alfred Blumstein, On the Racial Disproportionality of the United States. Prison Populations, 73 J. Crim. L. & Criminology 1259, 1274 (1982). Some researchers claim that mid- to early-1990 studies indicated that far less of the Black/White difference in imprisonment was warranted by the measurable legally relevant factor of higher criminal involvement by Blacks. See, e.g., Robert Crutchfield, Racial Disparity in the Washington State Criminal Justice System at 7-10, 69 (Oct. 25, 2005) (citing to a study that examined racial composition of prisons as of December 31, 1982, to conclude that only 40 percent of imprisonment disparity in Washington can be explained by arrest disparity); Task Force on Race and the Criminal Justice System, Preliminary Report on Race and Washington s Criminal Justice System at 12 (2011) ( differential rates of crime commission (as measured by arrest) explained only 20% of Black-White disproportionality in Washington State prisons. ); R. Crutchfield, G. Bridges, and S. Pitchford, Analytical and Aggregation Biases in Analyses of Imprisonment: Reconciling Discrepancies in Studies of Racial Disparity, 31 J. Res. Crime & Deliquency 166 (1994) (based upon inmate population in Washington s prison on December 31, 1982, concludes that only 40% of Black-White disproportionality can be based upon differential rates of crime commission). These studies do not take criminal history, a relevant factor in determining length of confinement under both Page 3 of 41

4 considered warranted when the focus is on violent crimes, but only around 60 percent of differences 11 in rates of incarceration can be accounted for in drug offenses. The Task Force on Race and the Criminal Justice System s Preliminary Report on Race and Washington s Criminal Justice System makes no effort to segregate violent crimes from drug crimes or to take into account Washington s sentencing policies which have significantly reduced prison terms for non-violent offenses. The Task Force takes the position that less than 64 percent of the racial disproportionality in imprisonment in Washington is a function of differential rates of crime commission. 12 Ethnicity vs. Race 13 Quality data on Hispanics in the prison systems is often lacking. Police agencies generally do not include the ethnic origin for arrestees. Arrestees of Hispanic origin are generally coded as Caucasian/White or as African American/Black. Researchers will generally conduct a Hispanic surname analysis to determine whether an individual should be reclassified as Hispanic. 14 Unfortunately, there is no universally accepted manner for doing such an analysis. In some studies the surname analysis is only conducted on the arrestees that are originally coded as White or Caucasian, but not on arrestees that are originally 15 coded as non-white. indeterminate sentencing and the Sentencing Reform Act, into account. Robert Crutchfield, supra at See R. Crutchfield, Racial Disparity in the Washington State Criminal Justice System at (Oct. 25, 2005) (discussing preliminary results for Professor Albert Blumstein of Carnegie Mellon University). 12 Task Force on Race and the Criminal Justice System, Preliminary Report on Race and Washington s Criminal Justice System at (2011). The Task Force does acknowledge that the 64% represents an increase of the proportion of racial disproportionality in Washington prisons that reflects the racial distribution of arrest rates. 13 Marc Mauer & Ryan S. King, The Sentencing Project, Uneven Justice: State Rates of Incarceration By Race and Ethnicity 12 n.14 (July 2007) (.Reporting on Hispanics in the criminal justice system has been limited and often inaccurate over many years, as evidenced by the fact that 11 states in this analysis do not provide any data on Hispanic inmates..); Damian J. Martinez, Felony Disenfranchisement and Voting Participation: Considerations in Latino Ex-Prisoner Reentry, 36 Colum. Hum. Rts. L. Rev. 217, 222 (2004) ([G]overnmentally-collected criminal justice data during the 1980s and 1990s lumped incarcerated Latinos into the racial classifications of whites and African Americans..); id. at (noting that even the category Latino is overbroad, and encouraging researchers to focus on differences between Latino sub-groups). 14 Word, D.L. & Perkins, Jr. C., Building a Spanish Surname List for the 1990's A New Approach to an Old Problem (1996). Washington, D.C.: U.S. Census Bureau. 15 Compare K. Beckett, K. Nyrop, L. Pfingst & M. Bowen, Drug Use, Drug Possession Arrests, and the Question of Race: Lessons from Seattle, 52 Social Problems 419, 424 (2005) (Hispanic surname analysis was applied only to whites in order to avoid double-counting non-whites (i.e., counting black Latinos as black and Latino). As a result, only white Latinos appear in the Latino category. ), with M. Smith & R. Engel, Race, Drugs and Policing in Seattle: A Reexamination of the Evidence, at (Feb. 10, 2008) ( Of the 425 arrestees in our data set with Hispanic surnames, 76 (17.8%) were non-white, and the therefore following the methods used by Beckett, et al., were not considered to be Hispanic. ). Page 4 of 41

5 In some studies researchers may include names that are coded as Occasionally Hispanic in the Hispanic demographics, while other researchers draw the line at Moderately Hispanic. 16 In some studies the surname analysis is not conducted on females because married women often change their surnames to that of their spouses. 17 The choices made by a researcher in conducting the surname analysis can result in vastly different 18 estimates of the proportion of Hispanics in a particular sample. Differences in Data Researchers obtain data in different ways and from different sources. Sometimes reporting 19 deadlines can result in the exclusion of significant quantities of data. Sequential studies issued by 20 the same organization do not always include data from the same sources. As a consequence, extreme caution must be exercised when comparing statistics in one report to figures published in other reports. Failure to carefully consider all footnotes, definitions, and explanatory text can lead 16 Word, D.L. & Perkins, Jr. C., Building a Spanish Surname List for the 1990's A New Approach to an Old Problem (1996), recommends a value to surnames based upon the percentage of individuals with that surname that indicated they were of Hispanic origin in the 1990 U.S. Census: 1. >0.75 = Heavily Hispanic = Generally Hispanic = Moderately Hispanic = Occasionally Hispanic 5. < = Rarely Hispanic Word & Perkins noted that with very few exceptions every frequently occurring surname is either Heavily Hispanic or Rarely Hispanic and there is not middle ground.... Fewer than 1000 surnames are sufficient for capturing 80 percent of the population in the United States. Id. at Word and Perkins (1996) recommends that Hispanic surname analyses not be conducted on females. 18 M. Smith & R. Engel, supra not 15, at (utilizing the methodology described in Beckett et al s study to the drug arrestees in the current study results in 18.8% of the arrestees being considered Hispanic, while the methodology chosen by Smith and Engel estimated that 5.7% of the same drug arrestees were Hispanic.). 19 The Sentencing Guidelines 2001 report on juvenile offenders excluded dispositions entered in the State s most populous county. See N. Lee, Sentencing Guidelines Commission, Juvenile Offenders: A Study of Disproportionality and Recidivism, at 1 (2001). The Superior Court 2001 Annual Caseload Report indicates that statewide there were 27,094 juvenile offender cases which resulted in the imposition of 16,238 sentences. Nearly 19 percent of juvenile offender cases were filed in King County. Sentences were entered in 2505 King County offender cases, representing percent of all sentences. 20 Compare See N. Lee, supra note 19, at 1 (2001) (King County data omitted), with Sentencing Guidelines Commission, Disproportionality and Disparity in Juvenile Sentencing Fiscal Year 2005, at 2 (December 2005) (providing a county sentencing ratio for minorities in King County), and Sentencing Guidelines Commission, Disproportionality and Disparity in Juvenile Sentencing Fiscal Year 2007, at 2 (May 2008) (providing a county sentencing ratio for minorities in King County). Page 5 of 41

6 to faulty interpretations and erroneous conclusions. WHERE DOES RACIAL DISPROPORTIONALITY APPEAR Police Agencies The racial disproportionality in the justice system originates predominantly at the point of first contact with law enforcement. Depending on the level and type of crime, the disproportionality may increase, remain roughly the same, or in some cases decrease as the case moves through the justice system; however, this change is typically not significant when compared to the disproportionality that occurs at arrest. While the point of first contact occurs across a wide spectrum of interactions between the police and the public, a substantial portion of the racial disproportionality is concentrated around certain policies and practices. Populations of color are disproportionately likely to encounter the justice system as a result of extensive policing of geographic hot spots (e.g. CODEFOR), school referral practices, and current policies for dealing with drug offenders. Most Washington investigations into allegations of bias policing either examine traffic stops or drug investigations. The studies do not present a uniformly grim nor a uniformly rosy picture. WSP Traffic Stop Studies Traffic stop data collected by the Washington State Patrol ( WSP ) has been subjected to multiple analyzes, most recently in The 2007 determined that there is no evidence of a systematic practice of racial profiling in either who is stopped, who is issued a citation, who is 21 searched, and to whom force is applied by WSP officers. The report does note, however, a few instances of noteworthy minority/non-minority disparities in the use of police discretion by the 22 officers of the WSP. Specifically, a higher proportion of certain minorities were stopped in 23 daylight hours in a few Autonomous Patrol Areas. For the most part, however, the data indicates 21 N.Lovrich, M. Gaffney, C. Mosher, T. Pratt, and M. Pickerill, Results of the Monitoring of WSP Traffic Stops for Biased Policing: Analysis of WSP Stop, Citation, Search and Use of Force Data and Results of the Use of Observational Studies for Denominator Assessment, at 2 (2007). 22 Id. 23 Id., at ( while there is considerable variation in the overall proportion of daylight stops across autonomous patrol areas, (adhering to the five percentage point criterion) a higher proportion of Blacks than Whites are stopped in daylight hours in four APAs (APA 12 - Sunnyside; APA 23 - Kelso; APA 37 - Hoquiam; APA 39 - Raymond). A higher proportion of Native-Americans than Whites are stopped in daylight hours in five APAs (APA 4 - Thurston County; APA 5 - Seattle North; APA 13 - Kennewick; APA 15 - Colville; and APA 21 - Vancouver). A higher proportion of Asians/Pacific Islanders than Whites are stopped in daylight hours in three APAs (APA 27 - Okanogan; APA 30, Bellingham; and APA 39 - Raymond). A higher percentage of East Indians than Whites are stopped in four APAs (APA 11 - Yakima; APA 28 - Ephrata; APA 30 Bellingham; A higher proportion of Blacks than Whites are stopped in daylight hours in four APAs located in Sunnyside, Kelso, Hoquiam, and Raymond. A higher proportion of Native-Americans than Whites are stopped in daylight hours in five APAs located in Thurston County, Seattle North, Page 6 of 41

7 that minority drivers tend to be under-represented in daylight stops by WSP officers A minority driver is more likely to receive a citation than a non-minority driver. A number of important differences across the racial groups with respect to both the number of violations observed as a result of a traffic stop and the seriousness of those violations influence the decision of WSP Troopers to issue citations. A multivariate analysis of the data reveals that East Indians were more likely to be issued 26 citations than the comparison group of non-hispanic Whites in one APA. Asian drivers were 27 significantly more likely to be issued citations in five of the state s APAs. Native Americans, African Americans, and Hispanics were not more likely to be issued a citation in any single APA, 28 and were significantly less likely to receive a citation in at least one APA. A separate multivariate analysis was performed for drivers whose contact record indicates that they had only one recorded violation. The purpose of this analysis was to see if officers record a greater number and severity of violations for members of minority groups due to bias rather than the actual driving behavior of those contacted. These multivariate statistical analyses reveal somewhat more evidence of potential bias in additional APAs, they do not indicate the existence of systematic bias in citing minorities who have a single violation recorded by the WSP. 29 Kennewick, Colville, and Vancouver. A higher proportion of APA 39 - Raymond). ). 24 Id., at Id., at Id., at 33 (Bellingham APA). Results should be treated with caution due to the large number of APAs in which there were too low a number of contacts with members of this group to allow for reliable statistical analyses. 27 Id., at 33 (Kelso, Ellensburg, Bellingham, Mount Vernon, and Everett (Central) APAs.) 28 Id., at 33 (Native Americans were significantly less likely to receive a citation in Yakima APA; African Americans were significantly less likely to receive a citation in Tacoma Freeway, Seattle North, Everett Central and Everett East APAs; Hispanics were significantly less likely to be issued citations in the Seattle North, Seattle East, Wenatchee, and Hoqiuam APAs). The reduction in citations issued to Native Americans in the Yakima APA may arise from Confederated Tribes of the Colville Reservation v. Washington, 938 F.2d 146 (1991), cert. denied, 503 U.S. 997 (1992). This case held that the State of Washington is not allowed to enforce its speeding laws, which are civil infractions, upon public roads within the Colville Reservation. 29 N.Lovrich, et.al, supra note 21, at 37 ( African American drivers who had only one recorded violation were not significantly more likely to be issued a citation in a single APA, and were significantly less likely to be issued a citation in the Tacoma Freeway and Spokane APAs. Native-Americans with a single recorded violation were not significantly more likely to be issued a citation in any APA, and were significantly less likely to be issued a citation in theyakima APA. Hispanics with a single violation were significantly more likely to be cited in the Sunnyside, Walla Walla, and Okanogan APAs, and were significantly less likely to be cited in Bellingham and Hoqiuam. East Indian drivers with a single recorded violation were significantly more likely to be cited in the Bellingham APA, while Asian drivers with a single violation were significantly more likely to be cited in the Ephrata, Bellingham, Mount Vernon, Oak Harbor and Port Angeles APAs. ). Page 7 of 41

8 A third multivariate analysis was conducted to examine whether officers were demonstrating bias by piling on violations, that is issuing a greater number of citations to members of minority groups than they do to Non-Hispanic Whites for the same type of offenses. This analysis indicated that there were no APAs where African American drivers, Native Americans, or East Indians were issued more citations. Hispanics were issued a greater number of citations in one APA, and significantly fewer citations in four APAs. Asians with more than recorded violation were issued 30 a greater number of citations in seven APAs. Despite these variances, there is no evidence of systematic racial bias on the part of the WSP at the level of which drivers are issued citations. 31 Searches resulting from traffic stops are highly infrequent. Only 3.3 percent of motorists 32 contacted by WSP between November 1, 2005, and September 30, Native Americans, Hispanics and African Americans are more likely to be searched than Whites, while Asians/Pacific 33 Islanders and East Indians are the least likely to be searched. The likelihood of finding contraband was equal for Whites, Blacks, and Native Americans when the search is a low discretion search. 34 The hit rate for Whites is greater than for minorities when the search is a high discretion 35 search. These results are essentially the same as in the period analyzed in previous reports. The disproportionality in search rate is troubling, but whether it is the result of purposeful discrimination is unclear. Researchers who apply univariate descriptive statistics (e.g. frequencies and proportions) or bivariate analyses to these findings have concluded that the difference in search 30 Id., at 38 ( there were no APAs where African American drivers were issued a greater number of citations, and two (Bellingham and Everett East) in which they were issued significantly fewer citations. There was not a single APA in which Native-Americans were issued a greater number of citations, and one (Wenatchee) in which they were issued significantly fewer citations. Hispanics were issued a greater number of citations in Goldendale, and significantly fewer citations in Seattle East, Walla Walla, Wenatchee, and Ellensburg. East Indians were not issued more citations in a single APA, while Asians with more than one recorded violation were issued a greater number of citations in seven APAs (Thurston County, Seattle South, Kelso, Chehalis, Mount Vernon, and Everett Central). ). 31 Id. 32 Id., at Id., at A low discretion search is triggered by a preceding event. Low discretion searches include searches incident to arrest, impound or inventory searches, and warrant searches. Id., at 42. The hit rate in low discretion searches was.26 for White, Black, and Native American. The hit rate for other racial/ethnic groups were.17 for Asian/Pacific Islander,.20 for Hispanic,.10 for East Indian, and.21 for Other. Id., at 46. The number of low discretion searches, or at least the mix of low discretion searches, is likely to be impacted by relatively recent legislative enactments and case law. See generally Arizona v. Gant, 556 U.S., 129 S. Ct (2009) (placing new restrictions on searches of vehicles incident to arrest); State v. Snapp, No , Wn.2d, P.3d (Apr. 5, 2012) (Const. art. I, 7 prohibits nearly all warrantless searches of vehicles incident to the arrest of an occupant); Laws of 2011, ch. 167 (mandatory 12-hour impound of vehicles when driver is arrested for DUI). 35 High discretion searches include consent searches, Terry searches or frisks, and K-9 searches. N.Lovrich, et al., supra note 21, at 42. The hit rate in high discretion searches is as follows: White.18%; Native American.17%; Black and Hispanic.15%; Other 13%; East Indian.11%; Asian/Pacific Islander.10%. Page 8 of 41

9 36 rate is not warranted by any legitimate policing purpose. Other researchers, citing to the case law standard that probable cause for a warrant and the reasonableness of a search are to be determined 37 by the totality of the circumstances, argue that even a multivariate analysis alone cannot prove or disprove bad purpose by police officers or get at other important but idiosyncratic explanatory variables such as citizen or officer demeanor. 38 A review of WSP use of force data for 2005, across the 270 incidents of use of force for which digital records were available indicated that there was no relationship between race/ethnicity 39 and frequency of use of different levels of force employed by WSP officers. An analysis of use of force data allowed researchers to examine whether there was a proper correspondence between 40 the suspect s behavior and the officer reaction. The data revealed no evidence of systemic bias in the application force vis-á-vis racial/ethnic minorities. 41 Drug Investigations Seattle has been the location of a number of investigations into whether race plays a role in arrests for drug offenses. In 2004, public defenders associated with Seattle s Racial Disparity Project commissioned Associate Professor Katherine Beckett to prepare a report analyzing the extent 42 and causes of racial disproportionality in Seattle drug delivery arrests. The data collected for this report and other research submitted to the King County Superior Court in State v. Johnson, et al., resulted in two articles. One focuses on drug possession arrests and the second article focuses on racial disproportionality in drug delivery arrests. 43 Utilizing a needle exchange survey and public drug treatment admission data, Professor Beckett opines that Whites are overrepresented among those who use methamphetamine, that Blacks are overrepresented among uses of cocaine, and that rates of drug use among Latinos are very close 44 to what would be predicted on the basis of Seattle demographic data. The racial/ethnic 36 See, e.g., Task Force on Race and the Criminal Justice System, Preliminary Report on Race and Washington s Criminal Justice System at (2011). 37 See, e.g., Illinois v. Gates, 462 U.S. 213 (1983). 38 See, e.g., J. Pickerill, C. Mosher, and T. Pratt, Search and Seizure, Racial Profiling, and Traffic Stops: A Disparate Impact Framework, 31 Law & Policy 1 (Jan. 2009). 39 N.Lovrich, et al, supra note 21, at Id., at Id., at See Muhammad Shabazz Farrakhan, et al., v. Christine Gregoire, et al., No. CV RHW (U.S. Dist. E. Wash.), Katherine Beckett Declaration: Farrakhan v. Locke, at 1 (Filed 01/27/2006). 43 Id. 44 K. Beckett, et al., supra note 15, at 426. Page 9 of 41

10 composition of Seattle s marijuana and crack users cannot be determined with precision, so Professor Beckett estimated that one-half of those who use crack cocaine are White A comparison of drug arrest statistics from January 1999 through April 2001 a racial/ethnic 47 composition of arrestees that is different from the estimated composition of users of each drug. The comparisons suggest that Blacks are significantly overrepresented among marijuana, methamphetamine, and crack arrestees. Latinos are significantly overrepresented among heroin and 48 crack arrestees, and Whites are significantly underrepresented among crack arrestees. Since most drug arrests involved crack cocaine, the number of Black possession arrestees outnumbered White possession arrestees. 49 Why most possession arrests involved crack users is not clear. Because Professor Beckett 50 could not find a significant link between violence or deaths and crack cocaine, she examined two other race-neutral explanations for the emphasis on crack interdiction: greater frequency of crack transactions and differential access to private spaces. Seattle s drug market characteristics for four drugs (methamphetamine, powder cocaine, crack cocaine and heroin), and the location of drug transactions (indoors or outdoors) were 51 estimated using Arrestee Drug Abuse Monitoring (ADAM) Program data. According to the calculations, crack cocaine and heroin are each involved in approximately 33.3 percent of the outdoor drug transactions, nearly 23 percent of outdoor drug transactions involved powder cocaine, and methamphetamine is estimated to be involved in 10.7 percent of the outdoor drug transactions. 52 Actual arrest data differs significantly from the estimated characteristics, with 75.2% of the possession arrests involving crack cocaine. 53 Access to private space is differentially distributed across socio-economic (and, hence, racial) groups. More impoverished crack users might be more likely to obtain the drug outdoors. Thus, a greater proportion of arrests will occur at an outdoor venue than an indoor venue. The Seattle arrest 45 Id., at 426. This estimate is based upon averaging the results of the needle exchange survey and the public treatment data. This estimate is consistent with national data, which indicate that just over half of U.S. crack users are white and that just fewer than half are black. Id. 46 Id., at Id., at Id. At Id., at Id., at Id., at 424 and Id., at Id., at 432. Page 10 of 41

11 reports establish that Whites composed a larger share of those arrested indoors (49.5 percent) than outside (38.5 percent.) Blacks compose a plurality of those arrested outdoors (49.9 percent) but percent of those arrested indoors. With over 72 percent of the possession arrests occurring outdoors, socio-economic and racial differences in access to private spaces do appear to contribute to the overrepresentation of Blacks among drug possession arrestees. 55 Professor Beckett contends that police focus on outdoor venues is an inefficient policy choice 56 that is not a legal necessity. Buy-bust operations in Seattle yielded significantly smaller amounts 57 of narcotics then a search warrant arrest. Weapons were far more likely to be seized in the course 58 of search warrant operations than in connection with buy-bust operations. Professor Beckett further contends that deployment choices with respect to which outdoor markets merited attention were not 59 made in response to citizen complaints. Her concerns were apparently supported by a separate study conducted by Tal Klement and Elizabeth Siggins. 60 Ms. Klement and Ms. Siggins also contend that racial disproportionality in drug arrests are exacerbated by the focus on sellers vs. buyers. They acknowledge that sellers in many of the public drug markets are disproportionately people of color, while the clientele are more racially 61 diverse. Ms. Klement and Ms. Siggins contend that the moral culpability of sellers is not so clear as the line between users and dealers in the open street markets is an extremely fine one In a subsequent study, Professor Beckett contends that blacks arrested indoors outnumber whites by a ratio of more than 2 to 1". K. Beckett, K. Nyrop, and L. Pfingst, Race, Drugs, and Policing: Understanding Disparities in Drug Delivery Arrests, 44 Criminology 105, 123 (2006). 55 K. Beckett, et al., supra note 15, at It is much more difficult to enforce against private activity. It is more dangerous to police personnel to go into a house undercover and investigations into sales at private locations require more resources. See T. Klement and E. Siggins, A Window of Opportunity: Addressing the Complexities of the Relationship Between Drug Enforcement and Racial Disparity in Seattle, 1 Seattle Journal for Social Justice 165, 206 (2002) (quoting former Seattle Police Chief Chief Kerlikowske). 57 K. Beckett, et al., supra note 15, at 434 (buy bust operations yielded an average of.1 gram of narcotics; search warrant arrests yielded an average of 52 grams of illegal drugs). 58 Id., at 434 (52 weapons were seized in the course of warrant operations in 3 of the four precincts, while only two weapons were seized in conjunction with buy-bust operations). 59 Id., at See T. Klement and E. Siggins, A Window of Opportunity: Addressing the Complexities of the Relationship Between Drug Enforcement and Racial Disparity in Seattle, 1 Seattle Journal for Social Justice 165, 204 (2002) (the pattern of Narcotics Activity Reports (NAR), which are filed when a citizen calls to report narcotic activities, do not match the pattern of arrest levels). 61 Id., at 211. Professor Beckett contends that racial and ethnic patterns of involvement in drug delivery appear to vary significantly by drug. See K. Beckett, et al, supra note 54, at T. Klement and E. Siggins, supra note 54, at 190 and Page 11 of 41

12 Former public defendant Robert Boruchowitz suggests that if the buyers [of drugs] were more afraid of getting caught, it would be a tougher market for the sellers. 63 The City of Seattle funded a research project to examine the concerns raised in Professor Beckett s studies. The research was conducted by Michael R. Smith, J.D., Ph.D., Chair, Department of Criminology and Criminal Justice, University of South Carolina, and by Robin S. Engel, Ph.D, Director, University of Cincinnati Policing Institute. Their findings and expert opinions are contained in a document entitled Race, Drugs and Policing in Seattle: A Reexamination of the Evidence. This document is unpublished, but is available from WAPA. The research protocols developed by Smith and Engel varied from those utilized in Beckett s studies. The 2003 observation study that was incorporated into Beckett s studies, relied upon field observations in two defined areas using an unidentified key informant and those involved in public venue transactions to help former substance abusers identify drug deals and the nature of the 64 drugs being sold. Smith and Engel s 2007 study used experienced narcotics officers from a neighboring city and criminal justice graduate students as the observers. The officers would alert 65 the graduate students to an identified drug transaction and both the officer and the graduate student independently recorded the race/ethnicity and gender of the participants in the transaction. 66 The 2007 observers recorded far fewer drug transactions than did the 2003 observers. The Beckett researchers claimed to have observed 686 individuals involved in drug delivery Downtown over 60 hours of observation. The Smith team observed only 78 persons selling drugs over 54 hours 67 of observation in the Downtown area. In the Capitol Hill observation, Beckett s researchers 68 reported 102 purchasers to Smith s researchers 13 transactions. 63 Id., at K. Beckett, et al, supra note 54 at ; K. Beckett, et al., supra note 15, at The protocol used in the observational studies is more fully set out in K. Nyrop, An Ethnographic Comparison of Public Venue Drug Markets in Two Seattle Neighborhoods, Unpublished Report (April 2003). at Officers utilized the Terry v. Ohio reasonable suspicion standard. M. Smith and R Engel, supra note 15, 66 Id. 67 Id., at Id., at 13. Page 12 of 41

13 The 2007 observers also recorded a significant difference in the racial/ethnic make up of sellers than that recorded by the 2003 observers: DOWNTOWN CAPITOL HILL Seller Race/Ethnicity Whites of non- Hispanic origin % 16.7% 95% 50% Black 38% 75.8% 20% Hispanic 16% 1.5% 20% Other 4% 3.0% 5% person of color Unknown 3.0% 10% 69 K. Nyrop, supra note 64, at M. Smith and R Engel, supra note 15, at 11 (Repeat sellers removed from the 2007 data.) 71 K. Nyrop, supra note 64, at M. Smith and R Engel, supra note 15, at 12 (Repeat sellers removed from the 2007 data.) Page 13 of 41

14 The 2007 observers also recorded a significant difference in the racial/ethnic make up of purchasers than that recorded by the 2003 observers: DOWNTOWN CAPITOL HILL Purchaser Race/Ethnicity Whites of non- Hispanic origin % 32.3% 95% 81.8% Black 39% 54.8% 9.1% Hispanic 12% 8.1% Asian 1.6% Other 3% 3.2% 5% person of color 9.1% Unknown/missing 1 Several reasons may explain the differences between the studies in both the number and racial composition of the dealers and buyers observed. First, the drug markets in the Downtown and Capitol Hill areas may have changed. The number of drug arrests and calls for service involving drug complaints in these two areas across the five year period suggests that this is unlikely. 77 Second, the differences in the findings across the two studies is most likely due to the differences in the observation methods employed. The observers in the 2003 study might have been better at identifying drug transactions than the narcotics officers who served as observers in the 2007 study. 78 Third, the purpose of the 2007 study was to estimate the racial composition of open air drug market sellers and buyers risk of criminal apprehension for comparison to drug arrests. The 2003 study focused on sellers and dealers who were attempting to avoid police detection. Whether the 73 K. Nyrop, supra note 64, at M. Smith and R Engel, supra note 15, at K. Nyrop, supra note 64, at M. Smith and R Engel, Race, supra note 15, at Id., at Id., at 14. Page 14 of 41

15 2003 or the 2007 study produced the most reliable benchmark for comparison to drug arrests is an 79 open question. The Smith and Engel study also examined calls for service data to see if Beckett s position that deployment choices did not match citizen requests. The Smith and Engel study considered calls, while Beckett considered only Narcotics Activity Reports (NARs) in determining whether 81 officer were deployed in a manner consistent with citizen complaints. NARs make up less than percent of all drug complaints in Seattle. In total, Smith and Engel examined 11,484 drug-related 911 calls that included a description of the suspect(s) race to determine the racial composition of drug suspects identified by callers. A similar analysis was made of the 911 calls for service from January 1, 2002 through December 31, The Smith and Engel study relied upon statistical reporting areas (SRAs) as the unit of analysis. SRAs are small geographic areas used by the Seattle Police Department (SPD) for 84 reporting purposes. Most SRAs contain between one and court city blocks. Beckett s studies used Census tracts. 85 The Smith and Engel study revealed that drug-related citizen complaints are much more highly concentrated in the Downtown Pike/Pine Street Corridor than they are in the Capitol Hill area along Broadway. Contrary to Beckett s assertions, the pattern of 911 drug complaints suggests that 86 police enforcement activity ought to be concentrated more heavily in the Downtown area. At the SRA level, there is a moderately strong relationship between drug arrests and drug complaints. 87 There is some evidence, however, that SPD drug enforcement activity in the Downtown area is 88 somewhat higher than one might expect based on citizens requests for services. There are some 79 Id., at NARs are written complaints of drug activity that citizens in Seattle typically make at their local police precincts. These are generally non-emergency reports that can be initiated by citizens or police officers. According to Seattle officials, NARs are typically based on suspicious or unusual activity around residences or businesses. Id., at See K. Beckett, et al., supra note 54 at See Bob Scales August 12, 2005, letter to Ray Paternoster, Professor, Department of Criminology; M. Smith and R Engel, supra note 15, at ( For example, between January 2004 and October 2007, SPD recorded only 4,305 NAR reports, as compared to 23,653 narcotics-related [911] calls for service. ). 83 M. Smith and R Engel, supra note 15, at Id., at See K. Beckett, et al, supra note 54, at 114, 117,and M. Smith and R Engel, supra note 15, at Id., at Id., at 38. Page 15 of 41

16 race-neutral reasons for this, such as a need to reduce crime in high tourism areas. 89 The Smith and Engel study also revealed that the racial composition of reported drug suspects from calls for service varied significantly from Beckett s observational findings. In the Downtown area, Blacks comprised 38% of the dealers observed in Beckett s 2002 study, but almost 66% of the 911 complaints about drug sellers in Whites and Hispanics were underrepresented in the 911 call data compared to the Beckett study. Similar differences between calls for service data and the 2002 observations existed in the Capitol Hill area. Specifically, Blacks comprised a much larger percentage of the caller-identified drug dealers in than reported in % compared to 5% while White dealers were underrepresented when compared to the 2002 data. In the Capitol Hill area, Blacks and Hispanics comprised a larger percentage of the drug purchaserrelated 911 complaints than they did in the Beckett observation data, while Whites were underrepresented. 90 The difference in ethnic composition of the drug market as established by the 911 calls and by Beckett s observational study does not appear to be due to changes in the drug market in the Capitol Hill area. Changes in the Downtown area do not explain the differences between the two studies, as a comparison of 911 calls for service between Jan. 1, 2002 and Dec. 31, 2002, with the calls for service suggest that citizens were more likely to have complained about Black drug sellers and buyers in the Downtown area in 2002 than in Specifically, the percentage of complaints of drug selling involving Black sellers decreased from 83.5% of the calls in 2002 to 65.8% of the calls in Likewise, the percent of buyers identified as Black decreased from 61.8% of the calls for service in 2002 to 46.3% of the calls for service in A comparison of drug arrest data for the period to the 2007 police officer observational data and the calls for service data. When the racial composition of arrests is compared to citizen complaints about drug-related activity and the direct on-site observations of drug activity, only slight differences emerge. None of the differences rise to the level 92 described by Beckett. The results are still troubling, as Blacks were arrested in the Downtown area at twice their expected rate based upon citizen complaints. This level of disproportionality is 93 reduced when compared to the observations of drug activity in the Downtown area. Ultimately, Smith and Engel concluded that the available evidence either mitigates against the existence of racial bias in SPD drug enforcement practices or, as to the Downtown area, is inconclusive Id., at Id., at Id., at Id., at Id., at Id., at 43. Page 16 of 41

17 Prosecution Decisions Prosecutors charging decisions and sentencing recommendations have an important impact on criminal justice outcomes. In Washington, charging decisions are guided by race-neutral statutory standards and by office guidelines. Some of the legally relevant factors that guide prosecutor decision making, such as criminal history, are easily quantifiable, others, such as witness credibility, 97 are not. Washington State Minority and Justice Commission s 1995 Study The Washington State Minority and Justice Commission sponsored a 1995 study of prosecutor discretion in the King County Prosecuting Attorney s Office. Data for this study were obtained from the King County Prosecuting Attorney s automated database, 500 felony case files, 98 and interviews with 15 King County deputy prosecuting attorneys. While the study determined that the most important factors in the prosecution of felony cases in King County were legally relevant factors, some observable instances where racial and ethnic differences did appear in the handling of cases. 99 The major results of the multivariate analyses (analyses of race effects on processing when other relevant factors have been statistically taken into account) are: 1. The filing of felony charges by the King County Prosecutor s Office varies by the type of offense and by the race of the offender. Charges were filed in 67% of drug-related referrals, 64% of crimes against persons, and 58% of all other/property-related referrals. White offenders were the least likely to be charged (60%), compared to 65% of all minority offenders. Multivariate analyses show that those differences by race in the probability of filing persist, even after adjusting for the possible effects of other offender characteristics and of legally relevant factors. 95 See RCW 9.94A.401 and RCW 9.94A See, e.g., Russell Hauge, Kitsap County Prosecuting Attorney, Mission Statement And Standards and Guidelines (May 7, 2007), (Last visited Apr. 3, 2012); Snohomish County Prosecuting Attorney s Office, Charging and Disposition Standards (July 1, 2011), 1.pdf (Last visited Apr. 3, 2012). 97 R. Crutchfield, J. Weis, R. Engen, and R. Gainey, note in Racial and Ethnic Disparities in the Prosecution of Felony Cases in King County (November 1995), that Evidentiary requirements are likely, of course, to be the single most important determinant of any decision to file charges. The studies generally assume, however, that the quality of evidence available to prosecutors does not differ systematically by the offender s race. Id., at 30 n Id., at Id., at 5. Page 17 of 41

18 Among offenders who were charged, most plead guilty (65%). There were few differences in dispositions by the race of the offender. African American offenders were less likely to plead guilty, and more likely to go to trial. While this did not affect the overall conviction rate for African American offenders, it could potentially result in African American offenders receiving, on average, slightly more severe sentencing recommendations and more severe sentences, independent of their offenses. 2. In general, the results show few disparities by race of the offender in the various recommendations of deputy prosecuting attorneys, as represented in the PROMIS data and the 500 sampled cases. Clearly, the strongest correlates of the various recommendations and actions of deputy prosecutors are legal characteristics of the offense (type and severity) and the criminal history of the defendant. Although race and other extra-legal factors were often shown in the bivariate analyses to be related to prosecutorial decisions, those associations were usually mediated by legal characteristics meaning that they were accounted for by the race differences in the offense or priors of the defendants that were related to the recommendations. A few exceptions to this pattern, however, should be noted. First, the effect of race, particularly African American, on bail was significant in most analyses. The effect was reduced once we controlled for detention recommendation by the police. While this measure may statistically capture [100] legal factors not identified in standard analyses, the variable may also indicate the operation of discretion at earlier stages in the criminal justice system that unknowingly flow into and affect the operations of the Prosecutor s office. Second, there were significant differences in the amount of confinement recommended for Black offenders and White offenders, and deputy prosecutors were less likely to recommend an alternative sentence conversion for Black offenders. Alternatively, Hispanics were less likely than others to receive community placement. Although there may be important variables omitted from these analyses, the findings are strong compared to those produced in other state-of-the-art studies that use traditional variables in their analyses. 3. The results of Judges sentences are consistent with the recommendations of the Prosecuting Attorney s Office. This is not surprising given that the vast majority of offenders plead guilty after negotiations between deputy prosecuting attorneys and defense counsel, and both deputy prosecutors and judges rely on state sentencing guidelines in their recommendations and orders. The primary finding is that legal variables, particularly seriousness 100 Relevant factors that were not captured in the bail recommendations included: (1) the number of prior failures to appear; (2) outstanding bench warrants; (3) ties to the community; (4) employment; (5) history of substance abuse; and (6) verified address and/or telephone. Id, at 37. Page 18 of 41

19 of the offense and the criminal history of the offender, are the most important factors associated with sentencing. However, controlling for legal factors, African Americans tend to receive higher sentences than Whites and are less likely to be provided an alternative sentence conversion. R. Crutchfield, J. Weis, T. Engen, and R. Gainey, Racial and Ethnic Disparities in the Prosecution of Felony Cases in King County, at 4-5 (Nov. 1995). Ultimately, the researchers concluded that the few observed disparities did not reflect racially-based decisions by prosecutors. It seems much more likely that the disparities are related 101 to legal, economic, and social factors. The report ends with a recognition that the King County Prosecuting Attorney s staff exhibited a high level of commitment to fairness and justice, and an opinion that the most fruitful direction to pursue in obtaining a more just criminal justice system is to try to confront and modify law, legal practices, and policies that may disadvantage some 102 groups. Kitsap County s 1998 JOTS Study The Kitsap County Prosecutor s Office developed the Juvenile Offender Tracking System (JOTS) to examine whether the decision to prosecute/not prosecute was influenced by race, gender, 103 religion or creed of the suspect (or victim.) The JOTS program was implemented in a total of four counties Kitsap, Benton, Franklin and Yakima. Ninety-five percent of the cases included in JOTS were referred to the prosecutors offices between November 1996 and June The remaining five percent of the cases were referred before November 1996 but were still being processed in the juvenile system during the implementation of JOTS. 104 Tim Wadsworth and George Bridges examined the JOTS data in 1998 to determine the relationship between the race and ethnicity of the defendant and the likelihood of a case being declined, diverted or charged. After adjusting for the age of the defendant, the type of offense, the number of prior offenses on the defendant s juvenile record, and whether or not the defendant was thought to be a gang member, cases involving minority defendants are 12% more likely to be 105 declined than cases involving white defendants. Among those cases that are not declined, cases 101 Id., at Id. 103 T. Wadsworth and G. Bridges, Racial, Ethnic and Gender Disparity in Prosecutorial Charging Decisions, and Trends in the Duration of Juvenile Offender Proceedings: An Analysis of JOTS Information for Benton, Franklin, Kitsap and Yakima Counties, at vii and 1 (Nov. 1998). 104 Id., at Id., at 9 ( Across the entire sample, minority defendants are about 1.12 times as likely (or 12% morelikley) to have their cases declined as white defendants, after adjusting for differences in offense type, criminal histories, and other characteristics of the defendants. When each county was analyzed separately, minorities in Benton County are Page 19 of 41

20 106 involving white defendants have a higher likelihood of being diverted while cases involving 107 minority defendants have a higher likelihood of having charges filed. Significant correlations between the declination reasons given and the race of the defendant emerge. Prosecutors are more likely to include Insufficient Evidence Connecting Suspect to Crime, Defendant Under 12', Co-Defendant Statement, DeMinimus, and Witness Reliability as factors influencing declination in cases involving minority defndants than in cases involving white 108 defendants. In contrast, Victim Request, Insufficient Evidence, Mutual Combat and No Crime are more likely to be listed as factors for declination in cases involving white defendants than 109 for cases involving minority defendants. Ultimately, the reasons given for declination do not explain the disproportionate likelihood that cases involving minorities will be declined. 110 A limitation of the present study, and the JOTS data, is the incomplete nature of the 111 information on the offense seriousness for those cases in which charges are not filed. This about.85 times as likely (or 15% less likely) as whites to have their cases declined. Similarly, minorities in Franklin County are about.98 times as likely (or 2% less likely) as white defendants to have their cases declined. In contrast, in Kitsap County minority defendants are about 1.19 times as likely (or 19% more likely) as whites to have their cases declined, and in Yakima County, minorities are about 1.38 times as likely (or 38% more likely) as whites to have their cases declined. ). 106 Prosecutors in Washington State do not exercise much discretion over the process of diversion decisions. RCW specifies which categories of offenses are eligible for diversion, and under what conditions a case must be diverted. 107 T. Wadsworth and G. Bridges, supra note 103, at 13and 15-16(Nov. 1998) ( Across the entire sample, minority defendants are about.85 times as likely (or 15% less likely) to have their cases diverted as white defendants, after adjusting for offense type, length of criminal histories and other characteristics of the defendant. When we analyze each county separately, minority defendants in Benton County are about.81 times as likely (or 19% less likely) as white defendants to have their case diverted. In Franklin County, minority defendants are about.97 times as likely (or 3% less likely) as white defendants to have their case diverted. Cases involving minority defendants in Kitsap County are about.90 times as likely (or 10% less likely) as cases involving white defendants to have their case diverted. Minority defendants in Yakima County are about.85 times as likely (or about 15% less likely) as white defendants to have their cases diverted. ; Across the whole sample, charges are 1.29 times as likely (or 29% more likely) to be filed in cases involving minority defendants than in cases involving white defendants. In Benton County charges are about 1.62 times as likely (or 62% more likely) to be filed in cases involving minority defendants as in cases involving white defendants. In cases involving minority defendants in Franklin County charges are about 1.39 times as likely (or 39% more likely) to be filed as in cases involving white defendants. In Kitsap County, charges are about 1.07 times as likely (or 7% more likely) to be filed in cases involving minority defendants as in cases involving white defendants. In Yakima County, charges in cases involving minority defendants are about 1.22 times as likely (or 22% more likely) to be filed as in cases involving white defendants. ). 108 Id., at Id., at Id., at Id., at 10-11, 15 (Nov. 1998) ( JOTS data only include measures of offense seriousness, or offense classification, for cases in which charges are filed, and do not include information concerning the seriousness or recency of the alleged offender s criminal record ; As in the analysis of diversion, since JOTS does not include information Page 20 of 41