Sharks and Minnows in the War on Drugs: A Study of Quantity, Race and Drug Type in Drug Arrests
UC Davis Law Review, Vol. 53: 729-801
73 Pages Posted: 7 Jan 2019
Date Written: December 22, 2018
Conventional wisdom has it that in the war on drugs you have to catch small fish in order to catch big fish. But what if the vast majority of drug arrests were for very small fish, and disproportionately brown ones at that? This Article is the first to conclusively establish that the war on drugs is being waged primarily against those possessing or selling minuscule amounts of drugs. Two out of three drug offenders arrested by non-federal law enforcement possess or sell a gram or less at the time of arrest. Furthermore, about 40% of arrests for hard drugs such as cocaine, heroin, and meth/amphetamine are for trace amounts — a quarter of a gram or less. These findings are the result of a first of its kind study of drug arrest data from National Incident-Based Reporting System (“NIBRS”) that analyzed all drug arrests reported for the years 2004, 2008, and 2012. The resulting data set contained over a million cases, and useable quantity data was found in over 700,000 cases, making this study the most comprehensive study of drug arrest quantity undertaken to date by orders of magnitude.
This Article also challenges assumptions that the disproportionate representation of offenders of color among those incarcerated for drug offenses results from their greater involvement in selling larger quantities of drugs. Offenders of color are by and large not more serious offenders in terms of quantity. They just possess and sell drugs that are the most frequent target of arrest. Blacks are disproportionately arrested overall because we arrest more for “Black drugs” than for “White drugs.” Racial disparities might vanish or reverse if we were to make as many meth/ amphetamine and heroin arrests as crack cocaine arrests.
After confirming that felony liability is typically triggered for selling — and in the case of hard drugs even possessing — such minuscule amounts, this Article argues that such offenses should be downgraded to misdemeanors for political, criminological and philosophical reasons. Such liability is doubly unjust in light of the racial disparities revealed in the patterns of arrest. A drug war premised on hunting great white sharks instead scoops up mostly minnows, and disproportionately ones of color. Felony liability for the two-thirds of offenders arrested for these gram-or-less amounts should be eliminated.
Keywords: war on drugs, drug arrests, race, drug quantities, drug types, NIBRS
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