Imperative : We Must Take a Second Look at Evidence Based Sentencing

By: Ryan Frazier

To: United States Congress

May 2015

1

Table of Contents:

Executive Summary 3

Implicit Racial Bias 4

The War on Drugs 9

Evidence Based Sentencing 15

Conclusion 20

Recommendations 21

2

Executive Summary

Within this document you will find a report that highlights the

discriminatory practices of our judicial system. The focus of this report is to

specifically address the racial discrimination that has become commonplace within

our courtrooms and the role it plays in a judge’s or jury’s sentencing decree. The

purpose of this report is to illustrate why Evidence Based Sentencing (EBS) is

unconstitutional, and how its implementation will only lead to greater racial

disparities within the sentencing practices of our courts.

This report will explore the role of implicit racial biases to develop an

explanation of why racial prejudices are so prevalent within our judicial system. It

will offer a brief history of the War on Drugs and discuss how its application has

contributed to the racial disparities we see in the sentencing practices of our courts.

Commentary from judges will be provided and offer insights into the thought

process that goes into determining the sentence of an individual. An overview of

Evidence Based Sentencing will be provided (i.e. what it is, how it works, etc.) with

an explanation of why its implementation is unconstitutional. Finally, I will offer

possible solutions to address EBS and the racial disparities within our judicial

system.

This report will yield emotions akin to contempt. It will also produce

unparalleled feelings of betrayal and remorse if you indeed possess the human

element of empathy. The sentiment of betrayal will find its origins in the farce of the

supposed post racialist society that many of us believe we live in. Your remorse will

stem from the fact that the systematic racism that exist within in our criminal justice

3

system is a direct product of your lack of compassion and true dedication to creating

a more just society, that abides by the constitution you seek to uphold, for all of the

people that call this great country home. Though these feelings may arise, I ask that

you refrain from allowing them to blind you from the objective of this report. It was

not formed solely for your sympathy. It was materialized to create change. The

disproportionate impact of sentencing laws and practices on racial minorities within

this country is a problem, and it needs to be fixed. It has gone ignored for far too

long. I ask that you recognize the importance of this subject matter, and use this

report to assist in the demolition of the undeniable institutionalized racism that

exists within our judicial system.

Implicit Racial Bias

Implicit biases are the attitudes and society driven stereotypes that shape

our understanding of and feelings towards a group of individuals in an unconscious

manner (Kirwan Institute). They constantly work to help us form opinions about

people that we lack personal relationships with based on their race, ethnicity, age

and appearance (Kirwan Institute). We all have implicit biases, and we all use them

to make connections that play significant roles in our decision-making process.

Implicit biases are malleable. They don’t always align with our explicit or affirmed

beliefs, and they often are in favor of groups that we consider ourselves to be apart

of (Kirwan Institute).

Implicit racial bias can be seen throughout every aspect of our judicial

system. It exists within police departments across the country and their interactions

with ethnic minorities and within sentencing practices of our courts. The population

4

of the United States is 12% black. However, in 2011 black Americans accounted for

30% of property offense arrest and 38% of persons arrested for violent offenses

(FBI Criminal Justice Services Division). Studies suggest that differences in arrest

rates between black and white Americans may stem from the fact that blacks

commit specific crimes at higher rates (The Sentencing Project; p. 3). Other studies

suggest that higher crime rates are more so a product of socioeconomic factors as

opposed to race (The Sentencing Project; p. 3). The belief being that the poorer an

individual is, the more likely he or she is to commit certain types of crimes.

However, further studies into why minorities are arrested at such higher rates than

whites suggest the prevalence of the role that racial implicit biases play when police

officers are forced to decide whether an arrest is warranted or not (The Sentencing

Project; p. 3). Police officers are constantly forced to make decision with “imperfect

information” (The Sentencing Project; p. 3). Implicit biases “fill in missing

information”, which allow police officers to “make decisions in the limited time

allowed” (The Sentencing Project; p. 3). We find major differences in how the police

interact with ethnic minorities when compared to their interactions with whites

because their implicit biases often place ethnic minorities in a “high threat”

category.

When Americans hear or see the words “dangerous”, “aggressive”, “violent”,

or “criminal” they implicitly associate them with black Americans, which offer

insights into why blacks are arrested at higher rates than whites. We see a black

man and we think “criminal”. Police officers see a black man and they think

“criminal”. The lack of time and information that police officers have to make

5

decisions give way for their implicit biases to make decisions for them. This is

evident through statistical disparities in traffic stops and drug law enforcement

(The Sentencing Project; p. 4). “Between 1980 and 2000, the U.S. black drug arrest

rate rose from 6.5 to 29.1 per 1,000 persons; during the same time period, the white

drug arrest rate increased from 3.5 to 4.6 per 1,000 persons” (The Sentencing

Project; p. 4). However, the difference in black and white drug arrest does not

“correspond to any significant disparity in black drug activity” (The Sentencing

Project; p. 4). Racial bias can be seen in traffic stop data as well. A Bureau Justice of

Statistics report “found that while black, Hispanic, and whites were stopped at

similar rates nationwide, black drivers were three times more likely to be searched

during a stop as white drivers and twice as likely as Hispanic drivers”. (The

Sentencing Project; p. 5). A study of traffic stops along the New Jersey turnpike

found that “whites were twice as likely to be carrying illegal contraband as stopped

black drivers and five times as likely to be carrying contraband as stopped Hispanic

drivers” (The Sentencing Project; p. 5). However, 73% of arrests made by officers

on the turnpike were of black drivers even though whites and racial minorities

commit traffic violations at almost identical rates (The Sentencing Project; p. 5).

The aforementioned implicit biases are also prevalent in how our courts

determine the sentences of certain individuals. It is undeniable that ethnic

minorities are sentenced more severely for similar crimes than their white

counterparts. This claim is difficult to prove because no judge or jury blatantly uses

race as a justification for a particular sentencing decision. Shifts in our society’s

attitude toward explicit racism and bigotry wouldn’t allow it. However, the racial

6

implicit biases of judges play a factor in the sentencing practices of our courts. An

analysis of over 77,000 federal cases “found that even when cases were controlled

for the severity of the offense, the defendant’s prior criminal history, and the

specific district court’s sentencing tendencies, blacks received sentences 5.5 times

longer than whites and Hispanics received sentences 4.5 times longer than whites”

(The Sentencing Project; p. 12). When the study included income as a variable, it

found that blacks with income levels lower than $5,000 were given sentences 13%

longer than other defendants (The Sentencing Project; p. 12). Overt racism has no

place in our judicial system. However, statistics like these suggest that inherent

unexpressed racism is alive and commonplace within the sentencing practices of

our courts.

Racial implicit biases are prevalent outside and inside our judicial system.

Ethnic minorities are racially profiled before they enter the court and in the manner

in which they are sentenced. During a Frontline interview, Judge Ladoris Cordell

was asked about her opinion concerning the racial disparities that are so profound

within our judicial system. Her response:

“The statistics prove it--they're there. What happens is that stereotypes are so

embedded in the psyche of human beings, that those stereotypes come to play. So

that when a young black kid comes into court before a white male judge, who

perhaps doesn't have any experience dealing with young black males, and this black

male has on baggy pants, has an attitude, may have a tattoo, immediately a picture, a

mindset comes up in that judge's head. We make assumptions; that's what

7

stereotypes are. Assumptions get made. I think, in the main, that's what happens,

and I think that's what accounts for those statistics.”

Justin D. Levinson conducted a study that tested participants ability to recall

facts of a story they had read only one minute earlier to determine whether implicit

racial bias affects how judges and jurors “encode, store, and recall relevant case

facts” (Levinson). The study involved 153 graduate students from the University of

Hawaii. Not one was black. Participants were given two stories, one about a fistfight

and another about an employee that was terminated. After students read the stories

they all completed a distraction task to eliminate immediate memory effects. After

the distraction task was completed students were asked to answer sixteen yes/no

questions to determine what facts students could remember from the two stories.

The studied showed that participants had an easier time recalling aggressive

facts about the characters in the story when such characters were black as

compared to when characters were white or Hawaiian (Levinson). Aggression facts

recalled about Tyrone were remembered at a rate of 80.2 % (black character).

Aggression facts concerning Kawaika (Hawaiian character) were recalled at a rate of

28.2 % and aggression facts regarding William were remembered at a rate of 32.2%

(white character) (Levinson). This empirical study illustrates our inherent decision

to associate black people with aggressive and violent acts and offers another insight

into why such great racial disparities exist in our criminal justice system, and

specifically in the sentencing practices of our courts. The objective of a court

sentence is to protect society by placing an appropriate measure of punishment

8

upon the defendant. Our implicit biases, as cited by judges, and various empirical

studies, often hinder the ability of our courts to achieve this appropriate measure of

punishment when sentencing racial minorities.

The War on Drugs

To fully grasp the systemic racism that comfortably rests within our judicial

system, one must acknowledge its origins. Implicit racial biases have existed in this

country for centuries. They began to play a role in the disenfranchisement of blacks

during the United States’ slave era through the pseudo-scientific and religious

justifications that granted adherence to the atrocities of the American slave trade.

These barbaric evils continued during Reconstruction and into the Civil Rights era.

You could not deem a black man or woman property, but you could take their life

and property without the slightest fear of judicial or social reprimanding. There was

a shift in our country’s attitude toward racism after the passing of the Civil Rights

acts of 1964 and 1968. As mentioned previously, overt racism and bigotry were no

longer acceptable. However, the War on Drugs created a new language to

distinguish black from white and a fresh and acceptable justification for the

disenfranchisement of this country’s most maltreated people.

In 1982, President Ronald Reagan made his intentions concerning America’s

drug problem public in the form of our country’s new look War on Drugs.

Considering all other factors, the War on Drugs has contributed more than any to

the racial disparities that we see within our criminal justice system (The Sentencing

Project; p. 14). It can be attributed to the racial disparities that we see in the

9

interactions between our municipal and local police forces and its ethnic

constituents and in the manner that ethnic minorities are sentenced.

In 1980 41,000 Americans were incarcerated for drug related offenses

(Mauer; King). By 2007, nearly half a million Americans were serving prison

sentences for drug related crimes (Mauer; King). The implementation of mandatory

minimum laws greatly contributed to the extreme increases in incarcerated

individuals due to drug related crimes. The first mandatory minimum laws were

created in 1986 (FAMM). These mandatory sentences were prompted whenever a

crime involved 1kg or more of heroin, 5kg or more of cocaine, 280g or more of

crack, 100g or more of pure PCP, 1kg or more of mixed PCP, 10g or more of LSD,

1000kg or more of marijuana, 50g or more of pure meth, and 500g or more of mixed

meth along with a host of other drug type and quantities. (FAMM). The automatic

punishments for carrying drugs of this amount were the first of its kind in our

judicial system. If an individual was caught manufacturing, possessing, or

distributing the aforementioned types and amounts of drugs with the intent of

selling and without the intent of killing or causing another individual bodily harm

they were sentenced to a minimum of ten years in federal prison (FAMM). If an

individual’s intent were to cause bodily harm to another individual with these types

and quantities of drugs, a first offense would guarantee a minimum sentence of

twenty years (FAMM). If a person were caught with any of these quantities of drugs

with only the intention to sell for a second time he or she would have a mandatory

minimum sentence of twenty years (FAMM). These highlight just a few of the

mandatory sentencing laws that were created in 1986, but provide a picture of how

10

harsh these laws are. To put the effects of these laws into perspective, “in 1986

released drug offenders had spent an average of 22 months in federal prison. By

2004, federal drug offenders were expected to serve almost three times that length:

62 months in prison” (The Sentencing Project; p. 14).

These mandatory minimum sentencing laws, similar to other aspects of our

criminal justice system, disproportionately affect blacks. “In 2010 the number of

black male offenders convicted of a federal offense subject to a mandatory minimum

sentence was twice that of convicted white males” (The Sentencing Project; p. 15).

Under mandatory minimum laws, the average sentences of blacks nearly doubled,

increasing from an average of 76 months for federal offenses to 152 months (The

Sentencing Project; p. 15). A major issue with mandatory sentencing laws is their

“blind application” (The Sentencing Project; p. 16). Federal judges are forced to

convict individuals to these harsh sentences even in cases where the defendant is

underserving.

The intent of the War on Drugs may have been to lower drug use amongst

American citizens. It may have been to stop drug related crimes in an attempt to

make our communities safer for the people who live in them. However, Americans

are still doing drugs and lives are still being lost in drug related criminal activities.

In 2012, 23.9 million Americans, 12 years of age or older, had used an illicit drug, an

increase in 1.1% since 2002 (National Institute of Drug Abuse). In 2007 about 14.4

million Americans had used marijuana. By 2012 18.9 million Americans were using

marijuana (National Institute of Drug Abuse). In 1987 there were 17,963 homicides

in the United States, 4.9% were drug related (Bureau of Justice Statistics). In 2006

11

there were 15,087 homicides in the United States, 5.3% of these homicides were

drug related (Bureau of Justice Statistics).

The War on Drugs has failed in its attempt to lower drug use, and its affect on

drug related crimes has been minimal at best. However, one area in which the War

on Drugs has been unarguably successful is in its disenfranchisement of ethnic

minorities, specifically black and Latino men, in this country. From 1995 to 2005,

African-Americans constituted roughly 13% of drug users on average but 36% of

those arrested for drug offenses and 46% of those convicted for drug offenses (The

Sentencing Project; p. 14).

When examining one of the most noted atrocities of the War on Drugs, the

“chronic disparity between federal sentencing laws for crack and powdered cocaine

offenses, we can see how racially bias the War on Drugs was and how it continues to

disproportionately affect ethnic minorities. From the 1980’s to 2010 the “ratio of

the amount of powdered cocaine needed to trigger the same sentence as an amount

of crack cocaine was 100:1” (The Sentencing Project; p. 15). This method of

sentencing was practiced in our courts for over two decades even though “crack and

powder are pharmacologically identical” (The Sentencing Project; p. 15). Since

blacks compose 80% of those “sentenced under federal crack cocaine laws each

year, the disparity in federal sentencing laws leads to harsher sentences for black

defendants” who have committed similar criminal offenses to their white and Latino

counterparts (The Sentencing Project; p. 15). The fact that blacks are sentenced at

such high rates for crack use, possession etc. is a farce given the amount of white

12

and other ethnic minority users of the drug. A graph provided by the Substance

Abuse and Mental Health Data Archive illustrates this below.

Crack use does not vary much amongst race. However, the War on Drugs,

which also could be deemed the “War on Crack”, at various points in history,

specifically targeted largely black communities, which offers one explanation into

the largely black prison population we see today. In the United States, “one in every

three black males born today can expect to go to prison at some point in their life”

(Knafo). Whereas only one out of every six Latino male and one out every seventeen

white male can be expected to serve some amount of time in prison. (Knafo).

13

Efforts have been taken to limit the disproportionate effects of the powdered

cocaine to crack ratio in the form of the Fair Sentencing Act of 2010. The act has

lowered the ratio from100: 1 to 18:1. However, if powdered cocaine and crack

cocaine are indeed pharmacologically identical why wouldn’t this ratio be lowered

to 1:1? Another well-documented issue with the Fair Sentencing Act of 2010 is the

fact that it does not work retroactively (The Sentencing Project; p. 15). That is,

“thousands continue to languish in prison serving sentences applied under the old

laws” (The Sentencing Project; p. 15). Do these lives not matter? The explicit answer

of our government is that they don’t.

The War on Drugs has only enhanced the racial disparities that we find

within our judicial system. Blacks and other ethnic minorities, more often than not,

are arrested for crimes at higher rates than whites that commit these same crimes at

similar rates. Ethnic minorities then go on to serve longer penalties than their white

counterparts for these crimes. This overview and analysis of the War on Drugs

offers insight into why Evidence Based Sentencing (EBS) will only further the racial

disparities that already exist within our judicial system.

Evidence Based Sentencing

Evidence Based Sentencing (EBS) is an innovative tool that was created to

enhance a judge’s ability to reach more effective sentences for defendants and

decrease recidivism rates. “Evidence” in this context does not refer to the to the

“evidence in a particular case” (Starr). It instead uses actuarial analysis of variables

that may predict the recidivism rate of an individual to construct a “risk score” that

assists a judge in his or her sentencing decision (Starr). The variables that go into

14

the construction of this risk score includes: criminal history, gender, age, marital

status, and socioeconomic factors such as employment and education (Starr). It does

not take the current crime into account in its determination of the appropriate risk

score. There are many supporters of EBS. I will offer explanations of their support

next. There are also a good number of people who doubt the effectiveness of EBS

(i.e. the variables used in the actuarial instruments) and its constitutionality. This

section of the report will explore these two arguments against EBS as well.

Supporters of EBS span across academia, judiciaries, sentencing

commissions, and think tanks (Starr). Many believe in EBS’ ability to help judges

identify “low-risk offenders whose sentences can be reduced, not high-risk

offenders who sentences must be increased” (Starr). Cohorts also “frame it as a

strategy for reducing incarceration and the resulting budgetary costs and social

harms” (Starr). The Model Penal Code (MCP) has also accepted the need for EBS in

courtrooms across the country. Below you will find an excerpt from the MCP as to

why:

“Responsible actors in every sentencing system-from prosecutors to judges to

parole officials-make daily judgments about…the risks of recidivism posed by

offenders. These judgments, pervasive as they are, are notoriously imperfect. They

often derive from the intuitions and abilities of individual decision makers, who

typically lack professional training in the sciences of human behavior…Actuarial-or

statistical-predictions of risk, derived from objective criteria, have been found

15

superior to clinical predictions built on the professional training, experience, and

judgment of the persons making predictions”(Starr).

To illustrate an aspect of the process, a process that the MCP finds insufficient,

judges use to determine the sentence of a defendant look below to Judge Thomas

Edwards’ response to a question concerning why white juvenile defendants might

receive more of a break than ethnic minority defendants:

“It all depends on what perspective you're giving it. Probably most judges who

would disagree with that statement, who would want to be defensive about it and

argue with you, would say pretty much something like this: they would say that kids

who come from inner cities, kids who come from economically deprived areas, are

more likely to come from an ethnic group, a minority group, in our culture. They

also come from areas that don't have strong neighborhood resources. Their parents

do not have enough money to provide the type of supervision through a public

school or a mentoring or after-school activities that a kid from an affluent white

neighborhood would. So why should the system then put the white affluent kids in

custody, when the parents can do as good or a better job, spending their own money

doing it?

The kids who don't have those resources, if we just turn them loose to let them go

home, they'll be back on the streets running with the gangs again, getting into more

trouble, and perhaps even hurting themselves the next time around. So why don't

16

we do what we can for them in the system? And that means detaining them. A white

kid goes home to an affluent neighborhood. But what the story doesn't tell you is

that a set of parents is putting out big bucks in order to do what we do through the

taxpayer’s dollars in the system. So there's your statistic.” (Frontline)

The fact that judge’s sentencing decisions are constantly affected by their implicit

biases is no secret, which is expressed by Judge Edwards’ response. The MCP

addresses the implicit biases that judges are forced to use when making sentencing

decisions and determines that EBS better interprets the “objective criteria” that are

required in determining an individual’s recidivism risk.

However, the “objective criteria” within EBS instruments that the MCP refers

to are the same variables that activate the implicit biases already used by judges in

the sentencing process. The MCP suggests that there is an absence of implicit bias in

an EBS process. This is a major point of concern because implicit biases and

uncontrollable factors lay within the data that EBS instruments analyze to produce

these risk scores. Since EBS instruments fail to acknowledge these implicit biases

they ultimately cannot be accounted for when determining a defendant’s risk score.

The argument could be made that an EBS instrument is simply a tool that replaces

the implicit biases already made by a judge in his or her sentencing decision.

However, because a judge may be aware of his or her implicit biases they can better

account for them, something EBS instruments, in their current form, fail to do.

The variable used in EBS that should concern us most is the socioeconomic

factor that goes into determining a defendant’s risk score. In the United States, an

17

unfortunate reality is the fact that one’s socioeconomic status is often an indicator of

an individual’s race. Blacks have the highest poverty rate of all ethnic groups at

27.4% (The State of Working America). Hispanics follow blacks at 26.6% and

whites at 9.9% (The State of Working America). Young black children are also 3

times more likely to be living in poverty than young white children (The State of

Working America). The inclusion of socioeconomic factors in a defendant’s risk

score will almost certainly have a disproportionate affect on ethnic minorities,

which is an all too familiar theme within the past and current landscape of our

judicial system.

A study conducted by Joan Petersilla and Susan Turner determined that

“socioeconomic factors could be excluded from risk prediction” (Starr). In their

study they found that an EBS instrument focused on a defendant’s “past conduct is

generally a better predictor of future conduct than static characteristics” such as

socioeconomic factors (Starr). Justice Hugo Black stated that the “central aim of our

entire criminal justice system [is that] all people charged with crime must, so far as

the law is concerned, stand on the quality of the bar of justice in every American

court” (Starr). The fact that a defendant is poor or uneducated should not play a

factor in the length of his or her sentence.

It is understood that an individual cannot be discriminated against because

of their race in this country because an individual is indeed an individual. An

individual is not bound by the characteristics of others that share common traits

with them (e.g. gender, age, race etc.) (Starr). This right is protected under the Equal

Protection Clause: “people have a right to be treated as individuals” (Starr). It is

18

understood that race is not a blatant variable used in EBS instruments, but

socioeconomic status is. While aforementioned data concerning the poverty rates of

blacks and other ethnic minorities tie race and socioeconomic status together. The

use of socioeconomic factors in EBS instruments is not unconstitutional because of

the connection between an individual’s socioeconomic status and their race. It’s

unconstitutionality rests in the conclusion of the Supreme Court Case, Bearden v.

Georgia.

This case “assessed the decision of a trial court’s decision to revoke the

probation of an indigent defendant who had been unable to pay his court-ordered

fine and restitution” (Starr). The Supreme Court reversed the decision of the trial

court concluding, “incarcerating a defendant merely because he was unable able to

pay amounted to unconstitutional wealth-based discrimination” (Starr). The

Supreme Court also determined that poverty was not a factor that could be used to

justify an individual’s recidivism risk (Starr). EBS’s use of socioeconomic factors

violates the conclusion that the Supreme Court reached in Bearden v. Georgia, and,

under the constitution, cannot be used as a variable in determining a defendant’s

recidivism risk.

Conclusion

I ask that you consider this report in its entirety when assessing the

constitutionality of Evidence Based Sentencing in its current form. Allowing its use

in our courts is unconstitutional, and it will only increase the racial disparities that

already exist within our judicial system. Please garner as much support as you can

to stop the current use of EBS so that we can begin to take steps toward limiting the

19

undeniable racial disparities within our judicial system. If you continue reading you

will find suggestions on how to limit the role of EBS and end racial disparities in

sentencing and other areas of our judicial system.

Recommendations

1. Address the Implicit Biases of Judges

Judges should have to take classes or attend seminars that address their implicit

biases. It should be a topic that is discussed whenever a judge has to sentence a

defendant.

2. Diversify the Bench

According to a study done by the Brookings Institute, 70% of judges are white men,

15% are white women, 10% were either Hispanic or black males, and only 3% were

minority females. A large majority of the judges (85%) may have more trouble

identifying with the defendant’s that they sentence, which makes the use of implicit

bias in sentencing that much more likely. More racial diversity amongst judges

would limit the use of implicit racial biases and decrease the racial disparities that

we see in the judicial system.

3. Limit the Affects of the War on Drugs

The government must create legislation that supersedes mandatory minimums in

cases that don’t justify a mandatory minimum sentence. The 18:1 ratio of the Fair

Housing Act should be lowered to 1:1. The Fair Housing Act should also work

retrospectively.

20

4. Rule Socioeconomic Variables in EBS Instruments Unconstitutional

The socioeconomic variable within current EBS instruments should be ruled

unconstitutional.

5. Enact the Racial Profiling Act of 2015

Make it a point to eradicate racial profiling from our police forces and judicial

system. We have come far as a society but there are still major gains to be made.

21

Works Cited

Starr, S. B. (2014). EVIDENCE-BASED SENTENCING AND THE SCIENTIFIC RATIONALIZATION OF DISCRIMINATION. Stanford Law Review, 66(4), 803-872. Retrieved from http://search.proquest.com/docview/1526945305?accountid=9784

"Understanding Implicit Bias." Kirwan Institute for the Study of Race and Ethnicity. Kiran Institute, n.d. Web. 06 May 2015. <http://kirwaninstitute.osu.edu/research/understanding-implicit-bias/>.

Marc Mauer & Ryan King, A 25-Year Quagmire: The War on Drugs and Its Impact on American Society, 2 (2007).

"From Both Sides of the Bench - Is the System Race Biased." Interview. PBS. PBS, n.d. Web. 06 May 2015. <http://www.pbs.org/wgbh/pages/frontline/shows/juvenile/bench/race.html>.

"DrugFacts: Nationwide Trends." DrugFacts: Nationwide Trends. N.p., n.d. Web. 06 May 2015. <http://www.drugabuse.gov/publications/drugfacts/nationwide-trends>.

"Substance Abuse and Mental Health Data Archive “: List of Available Quick Tables. Quick Tables. N.p., n.d. Web. 06 May 2015. <http://www.icpsr.umich.edu/quicktables/quickconfig.do?34481-0001_all>.

Knafo, Saki. "1 In 3 Black Males Will Go To Prison In Their Lifetime, Report Warns." The Huffington Post. TheHuffingtonPost.com, n.d. Web. 06 May 2015. <http://www.huffingtonpost.com/2013/10/04/racial-disparities-criminal-justice_n_4045144.html>.

"Poverty." State of Working America. N.p., n.d. Web. 06 May 2015. <http://stateofworkingamerica.org/fact-sheets/poverty/>.

Wheeler, Russell. "The Changing Face of the Federal Judiciary." The Brookings Institution. N.p., 17 Aug. 2009. Web. 06 May 2015. <http://www.brookings.edu/research/papers/2009/08/federal-judiciary-wheeler>.

Levinson, Justin D. "Forgotten Racial Equality: Implicit Bias, Decision Making, And Misremembering." Duke University School of Law (2007): n. pag. [JSTOR]. Web.

Report of the Sentencing Project to the United Nations Human Rights Committee Regarding Racial Disparities in the United States Criminal Justice System. Rep. Washington D.C.: Sentencing Project, 2013.

22

"Drug Use and Crime." Bureau of Justice Statistics, Drugs and Crime Facts: Drug Use and Crime. N.p., n.d. Web. 06 May 2015. <http://www.bjs.gov/content/dcf/duc.cfm>.

FEDERAL MANDATORY MINIMUMS (n.d.): n. pag. Web. <http://famm.org/wp-content/uploads/2013/08/Chart-All-Fed-MMs-NW.pdf>.

23