When it comes to drug cases, Judge Sydney Hanlon knows what she’s looking at. As presiding justice of Dorchester District Court, she runs Boston’s busiest community court, with 8,636 criminal complaints filed there last year. In narcotics charges, only one court in the city and three others in the state see more action than hers.
Unlike many judges, Hanlon also knows the neighborhood she presides over like the back of her hand. She was born and raised in Dorchester, and lives there still. She knows the people, and she knows the streets. Sometimes, what she sees from the bench doesn’t quite square with what she knows.
The court’s jurisdiction includes many predominantly black and Hispanic neighborhoods, but white suspects come through her courtroom, too. Not only does the court’s territory include white, working-class neighborhoods along the Dorchester coastline, but easy access to the Southeast Expressway draws suburban customers-and suburban dealers replenishing their supplies-to the local drug trade.
What bothers Hanlon, looking down from her bench, is what she perceives as a difference in the way white and black drug offenders are brought to justice. “What seemed to me, anecdotally-I wasn’t keeping numbers-was white defendants, particularly from the suburbs, who were not being charged with possession with intent [to distribute], when a neighborhood [minority] person would be, for the same quantity of drugs,” says Hanlon.
This bothered her because, as a former state and federal prosecutor, she knew that possession of narcotics in amounts greater than those typical for personal use is considered prima facie evidence of “intent to distribute.” And it bothered her particularly because so many arrests for drug dealing in the densely-built urban neighborhood take place within 1,000 feet of a schoolhouse, and are therefore subject to a mandatory two-year prison sentence. “All of Boston’s a school zone,” she says, with only slight exaggeration. (See map).
Hanlon, like most judges, does not care for mandatory-minimum sentences in general, and the school-zone law in particular, because it dictates what she calls “a very harsh sentence” in comparison to punishments handed down for other offenses. Law enforcement officials say the threat of serious jail time is just what makes mandatory-minimum sentences effective in combatting the urban drug trade, not to mention the violent crime and neighborhood degradation that goes with it. But Hanlon contends that the very power of mandatory minimums in the hands of police and prosecutors makes it vulnerable to abuse.
“Discretion gets taken out of the courtroom” as the mandatory sentences “shift that discretion to police officers,” she says. When it comes to choosing whether to throw the school-zone charge at a suspect or not, “that decision is made out of the public eye.” To see whether justice is being administered fairly, she says, “you have to look very carefully at who is being charged.”
That is precisely what is starting to happen, and the results raise troubling questions about how police and prosecutors enforce the state’s tough drug laws. A new study by scholars at Northeastern University and new statistics compiled by the Massachusetts Sentencing Commission-both released exclusively to CommonWealth-suggest disparities in the way white and nonwhite suspects are charged, prosecuted, and punished for the same narcotics crimes. Together, the two reports suggest what some in communities of color have long suspected-that the heavy hand of the law comes down harder on minorities than on whites.
The Northeastern study of Hanlon’s Dorchester District Court found that minority suspects are more likely to be charged with dealing drugs than white suspects in similar circumstances-and therefore, in a neighborhood dense with schools and parks, are more likely to be subject to a “school-zone” charge and the strict mandatory prison sentence that accompanies it. And the sentencing commission data show that 89 percent of those serving two-year school-zone sentences from Boston are black or Hispanic, even though Boston police say that 45 percent of those arrested for drug violations are white.
In a city historically riven by race, it is hard to imagine a more volatile charge, or one more calculated to provoke hostility and defensiveness. Indeed, law enforcement officials contest-in some cases heatedly-some of the statistics and most of the conclusions drawn from them. Yet discussion of this research has prompted law enforcement officials to place their own practices and procedures under unprecedented scrutiny to determine whether racial prejudice taints the exercise of police and prosecutorial duty. The result could be the most detailed analysis to date on the effect of race throughout the criminal-justice process.
The new initiative, which promises strict documentation of new drug cases from arrest to sentencing, is still in the formative stages. Whether this exercise in analysis -and, ultimately, accountability-brings a new level of fairness to the state’s criminal justice system or collapses from internal conflicts remains to be seen. But much is at stake, including the nationally heralded alliance of law enforcement officials and black ministers that has helped police and prosecutors get tough on crime without raising the racial temperature in the manner of New York, Los Angeles, and other cities.
“Anything dealing with race is explosive-in this country, and in this city, with its history,” says the Rev. Ray Hammond, of the Ten Point Coalition. “But I think there is an ongoing commitment to doing what needs to be done.”
It was comments from Judge Hanlon and others in the criminal-justice system that encouraged researchers from Northeastern University to examine the role of race in the enforcement of mandatory-minimum drug laws. Two years ago, Northeastern Law School professor Deborah Ramirez, a former colleague of Hanlon’s in the US Attorney’s office, and Jack McDevitt, co-director of Northeastern’s Center for Criminal Justice Policy Research, devised a study to determine whether nonwhite offenders were more likely to face the tough school-zone charge-and therefore, the threat of mandatory jail time-than whites.
They collected a sample of roughly 100 white and 100 nonwhite defendants from 1996 Dorchester District Court cocaine cases and examined police reports, lab reports, probation records, and court filings on them. (Because a majority of drug defendants in that court are racial minorities, the nonwhite cases were chosen at random, but the white sample included all of the white offenders for Class B narcotics-cocaine, both crack and powder-that year and for several months prior to and after 1996. Hispanics were not analyzed separately but combined with blacks into a single “nonwhite” category because of inconsistency in the way they are identified in police reports.)
When the researchers looked at defendants who were eligible for the school-zone charge-those arrested with-in a school zone and charged with distributing drugs or “possession with intent to distribute”-they found that black and Hispanic defendants were slightly more likely to be charged with the mandatory-minimum offense than white defendants (75 percent versus 63 percent). But the difference was one that, statistically, could have occurred by chance. What stood out to the researchers was how few white defendants were eligible for the school-zone charge at all: only eight out of 83 whites, compared to 40 out of 98 nonwhite defendants. With roughly 80 percent of all the drug arrests taking place within a school zone, the main difference in who faced the threat of a two-year school-zone sentence appeared to be whether the defendant was charged with simple possession-the least serious drug offense-versus distribution or intent to distribute. This caused Ramirez and McDevitt, working with researcher Amy Farrell and the team of law-school students who collected the data, to take a closer look at the initial charges.
What they found was startling: 52 percent of minorities arrested for cocaine were charged with distribution or intent to distribute, compared to just 15 percent of whites, according to preliminary results. Racial disparities remained even when key factors such as the person’s alleged role in the crime and the quantity of drugs he or she had in possession were taken into account: Half of the white defendants described in police reports as the “seller” in a drug transaction were charged with simple possession, while 93 percent of the nonwhite “sellers” were charged with dealing. Two-thirds of the nonwhites described as the “driver” of a car involved in a drug exchange were charged with distribution, while three-quarters of whites in similar positions faced only possession charges. When the amount of drugs in the suspect’s possession-a factor used in determining whether narcotics are for personal consumption or for sale-was considered, 41 percent of nonwhites holding less than one-eighth of a gram of coke were charged with dealing, but only 11 percent of whites. And while 94 percent of nonwhites carrying more than a gram and a half were charged as dealers, that was the case with only 26 percent of whites.
The racial differences remained even when the researchers considered each defendant’s criminal record. Of 36 blacks and 36 whites with no prior arrests for drugs, 21 minorities were charged with dealing but only 5 whites. While 83 percent of whites with one or more past drug arrests were charged with simple possession, that was true for only 54 percent of blacks. And while only 23 percent of whites with a record of violent crime were charged with dealing, 47 percent of nonwhites with past arrests for violence got the dealing charge.
“We couldn’t find a legitimate explanation,” McDevitt says of the racial differences in the data. When the researchers later interviewed police officers about how they decide what charge to give a suspect, McDevitt says, “I was told, time and time again, it has to do with whether it’s a good kid or a bad kid.” However, the racial disparities in who gets charged with what suggest that, at least at the time of arrest, minorities may be less likely to be given the benefit of the doubt, and white suspects more likely to catch a break.
“What we thought would be the problem is that blacks are overcharged,” says Ramirez. “The problem turns out to be that whites may be undercharged.”
Though the numbers are stark, just what they mean is not so obvious–especially not to the Boston police officials and Suffolk County prosecutors (acting on behalf of Commissioner Paul Evans and District Attorney Ralph C. Martin II) with whom Ramirez and McDevitt have been wrangling since they presented their findings privately a year ago.
Ann Marie Doherty, superintendent of the Boston Police Department, calls the study “flawed,” basing sweeping conclusions on “a handful of cases” of potential undercharging of white defendants. “Let’s see the cases,” she says. “The easiest way to resolve this is to look at the cases.”
Assistant district attorney Andrea Cabral adds that charges made at the time of an arrest are based on more than the suspect’s alleged role in the transaction and the weight of the stash. Who the suspects are, where they’re from, and what role they play in the local drug scene are all part of the judgment, says Cabral; not all of that shows up in the courthouse paper trail. The amount of drugs in someone’s possession may indicate the difference between user and seller, but so can packaging, she says. A large quantity in the hands of a junkie known to have a heavy habit is simple possession, but even a small quantity packaged for individual sale may indicate intent to distribute.
“It’s what’s missing [from the study] that’s the problem,” says Cabral. “To come out with a conclusion that’s controversial and to have so much missing, I think, is dangerous.”
But it would be more dangerous to ignore it, say Ramirez and McDevitt. They acknowledge that the Dorchester court study involves numbers too small to draw definitive conclusions from, but they stand by the analysis of the data they’ve got. They say police and prosecutors are welcome to find ways to explain the cases in dispute; they gave law enforcement officials their case records long ago. Harder to explain away are the patterns, they say. The study, says Ramirez, “doesn’t say everything, but it doesn’t say nothing, either.”
While McDevitt and Ramirez held a series of meetings, some of them tense, with police and prosecutors last winter discussing what the Dorchester study does and doesn’t mean, the Massachusetts Sentencing Commission raised questions of its own about whether minority defendants are getting a fair deal. The commission, which was created by the 1993 “truth in sentencing” law to develop uniform sentencing policies, issued its annual survey of sentencing practices, which this year, for the first time, reported results by race. Although a more complete report on the demographics of offenders is due out this summer, the survey, released in January, provided additional reason to look at the role of race in the administration of justice.
Although 62 percent of the people convicted of all crimes and 46 percent of drug offenders last year were white, 80 percent of those serving mandatory drug sentences were black or Hispanic, the survey found. This disparity was enough to prompt the chairman of the sentencing commission, Superior Court Judge Robert Mulligan, to write to his fellow jurists in March, citing the “disproportionate effect of mandatory drug laws on racial/ethnic minorities” as grounds for moderating man-datory-minimum laws through the commission’s recommended sentencing guidelines. The guidelines, which have languished in the Legislature for four years now, set presumptive ranges for sentences based on severity of the offense and criminal record of the offender. Judges could depart from those ranges-and from mandatory-minimum sentences -on the basis of a written opinion that could be appealed.
Statistics compiled by the sentencing commission in response to a public-records request from CommonWealth show even sharper disparities in school-zone cases. Statewide, 82 percent of the 302 defendants convicted of school-zone offenses last year were black or Hispanic. In Suffolk and Hampden counties-which accounted for 64 percent of these sentences imposed statewide -minorities made up 89 and 90 percent of school-zone convictions, respectively.
Although Worcester County District Attorney John Conte sent Mulligan a letter blasting the judge for “shamelessly injecting race” into the sentencing debate, the commission numbers did give the Boston police pause. Because of the Northeastern study, the department “started looking at our drug arrests by race,” says superintendent Doherty. Since the department had spread its drug-enforcement units throughout the city’s neighborhoods in 1995, rather than targeting them on gang-violence hot spots (which, in the early ’90s, were in predominantly minority areas), whites had come to account for roughly 45 percent of drug arrests. It was not immediately clear to police officials why blacks and Latinos would account for 55 percent of drug arrests but 89 percent of those sent to the Suffolk County House of Correction on school-zone convictions .
“We are concerned about the statistics that came out of the sentencing commission report,” says Doherty. “Let’s take a look at the whole system. If we need to do more substantial work, let’s do that.”
There’s no good time, and no polite way, to raise the issue of race and crime, in Boston or anywhere else. Concerns, both local and national, about racial profiling make the issue touchier than ever. And a recent Boston Globe report charging that Boston police and prosecutors backed off on the enforcement of racially motivated crimes in response to complaints from South Boston leaders provided new cause for official defensiveness.
But there still may be no better time than the present. Though there has been a recent flurry of violent incidents, crime is down overall, and neighborhood tension along with it. Police Commissioner Paul Evans and District Attorney Ralph Martin are still widely seen as reform-minded and sensitive to community concerns. Most of all, there is a working relationship between law enforcement and ministers in the black community, through the Ten Point Coalition, that has broken down traditional barriers between police and minority neighborhoods.
For these reasons, the Northeastern researchers “decided not to write a report, put it in a journal, and give it to the media,” says McDevitt, who was principal investigator for the 1991 St. Clair Commission report on Boston police misconduct. “We wanted to work with the departments to institute change. This was not ‘gotcha’ research.”
With the Rev. Ray Hammond as intermediary, the Northeastern researchers have been meeting with Boston police officials and Suffolk County prosecutors over several months to develop a research protocol that can track a broader array of cases citywide as they happen, documenting an exhaustive list of variables and decisions about charges, prosecution, and disposition on a large sample of narcotics cases and every mandatory-minimum charge. For comparison purposes, law enforcement officials in Springfield have tentatively agreed to participate in the data gathering as well. These data, which will likely be analyzed by statisticians at the Massachusetts Sentencing Commission, could show not only if there are discrepancies based on race, but at what point in the process they occur.
“We don’t want this to disappear,” says Doherty, of the Boston police. “We want to know if this is an issue. But if it’s an issue, where is it an issue?”
If this new research effort goes forward, it will do more than settle questions about the Dorchester District Court study, about which the researchers and the law enforcement officials have agreed to disagree. The potential-and the hope-is that this documentation will make police officers and prosecutors alike accountable for discretionary decisions now made largely away from public view.
“Within the [minority] community, there is a level of concern, and some suspicion, that if you’re poor or a person of color, you’re not going to get the same breaks or consideration,” says Hammond. “It’s even stronger among young people. That’s not a perception we can afford for them to keep.”
The details of this research project are still under discussion, and lingering hard feelings about the Dorchester study may yet stop it in its tracks. Even if it gets underway, it will take at least a year to compile the 1,000-plus cases needed to draw definitive conclusions and even longer to figure out what they mean. But even those who remain unconvinced by the evidence presented so far agree that the influence of race at every point in the law enforcement process is well worth closer scrutiny.
“Race plays a role in everything that happens in this country,” says prosecutor Cabral. “It would be crazy to think that the criminal justice system manages to elude this.”
CommonWealth coverage of criminal justice is funded in part by the Gardiner Howland Shaw Foundation, which also funded the Northeastern study.