Class matters.

• Author: Hashimoto, Erica J.
• Position: Inadequacy of criminal data collection, importance of economic status

1. INTRODUCTION

   The United States spends nearly two hundred billion dollars each year to combat crime. (1) Both because of the amount of money involved and because of the importance of this issue, policymakers should rest their decisions on accurate data so that there is some assurance that the vast criminal justice budget is being effectively spent. In too many instances, however, legislators develop policy and laws with little or no information. Part of the reason that policymakers do not consider data may be that data are unavailable. In particular, demographic information on defendants in the system (with the possible exception of information regarding race and gender) is almost nonexistent. Indeed, one of the most potentially significant factors--the economic status of the defendant--has been almost completely ignored.

   The data we do have show that poor people become defendants in criminal cases at a much higher rate than do non-poor people. Without collecting more data on those defendants--their criminal histories, the crimes with which they are charged, the outcomes of their cases, their sentences, and the extent of their overrepresentation in the system--we can neither generate interest from policymakers in the problems presented by the sheer volume of poor people in the system nor begin to identify causes and solutions for this overrepresentation.

   Some might argue that collecting more data is not necessary because everyone knows that the criminal justice system prosecutes more indigent than non-indigent persons. Without data, however, we do not, and cannot, know the extent of this disparity and the issue lacks resonance. In this context, data represent the most powerful, descriptive tool. In addition, without data, we cannot determine the causes of overrepresentation, so we cannot develop effective solutions. A very simple (and admittedly oversimplified) example makes the point. If, for instance, the data reveal that poor defendants commit all types of offenses at a uniformly higher rate than non-poor defendants, that information may suggest that poor defendants commit crimes for reasons other than economic need. If that is the case, any programs targeted at reducing offense rates of poor people need to recognize that the motivation for the criminal behavior may not be economic need and may need to incorporate a model of promoting not only job placement but also community investment and engagement. (2) On the other hand, if the differential in offense rates between poor and non-poor defendants does vary depending on the economic nature of the crime, the message may be that job programs constitute the best tool for countering criminal activity.

   In addition to its importance in developing rational criminal justice policy, information collection plays a critical role in ensuring even-handed administration of our laws. Again, an example illustrates the point. If the percentage of poor people who are prosecuted for a particular crime--for instance, drug possession (3)--is much greater than the percentage of poor people who commit the offense, this fact may lead to questions about our enforcement efforts. Do police target poor people or neighborhoods where poor people live? Are prosecutors more likely to charge poor people for drug offenses than wealthy people? The answers to these questions may well be no, but we cannot know if that is the case unless we collect data. (4)

   The Article proceeds in three parts. Citing examples, Part II describes the benefits of collecting and analyzing data on defendants in the criminal justice system--namely, that data further the development of more rational criminal justice policy and provide a means of assuring equal enforcement of the laws. Part III describes the data on economic status that states and the federal government now collect and the deficiencies in the available data. It also sets forth the argument that analysis of these data is necessary both to develop effective criminal justice policy and to ensure that the law does not discriminate against poor people. Finally, Part IV proposes new methods of analysis for the existing data and advocates the collection of more detailed data, particularly at the state level.

2. THE IMPORTANCE OF KEEPING DATA ON CRIMINAL DEFENDANTS

   There are two principal reasons we should collect data about defendants in the criminal justice system. First, data should (although they often do not) inform policy decisions regarding the definitions of crimes, the development of programs, and the enactment of sentencing provisions. After all, regardless of the goals policymakers have for the criminal justice system--whether crime prevention or retribution or both--they need information in order to assess whether the money is being spent in the most cost-effective way to further those goals. If we do not know who is being prosecuted for crimes, legislators and those working in the criminal justice system cannot make informed decisions. Second, we cannot have any assurance that laws are being enforced uniformly--and not on the basis of unconstitutional or arbitrary factors such as race or gender--unless we know who is being prosecuted, convicted and punished, and for what.

   1. DATA AS A MEANS OF ACHIEVING RATIONAL CRIMINAL JUSTICE POLICY

      Over the last twenty or thirty years, political considerations generated by highly publicized cases have significantly affected criminal justice policy. (5) Indeed, many pieces of legislation creating new crimes and setting sentences both for new crimes and for existing crimes have been driven by media coverage of the most high profile cases. Political considerations generated by media coverage of atypical high-profile cases, however, provide a poor basis for shaping the criminal justice system. To illustrate the importance of considering data rather than passing legislation based on media frenzy, consider Congress's enactment of legislation that created the one-hundred-to-one sentencing differential for powder cocaine and crack cocaine offenses under the federal Anti-Drug Abuse Act of 1986. (6) The Act set mandatory minimum penalties for defendants convicted of trafficking "kingpin" quantities of drugs: one thousand grams of heroin or five thousand grams of cocaine powder would lead to a ten year mandatory minimum sentence. (7) With respect to crack cocaine, (8) Congress established the "kingpin" level for the mandatory minimum ten-year sentence at fifty grams, one-hundredth of the amount that would trigger the same mandatory minimum penalty for powder cocaine. (9)

      Much has been written about the reasons Congress settled on the 100:1 ratio for powder and crack cocaine. (10) From those reports, it is clear that Congress set that ratio without considering any data on either the relative harmfulness of the drugs at issue (11) or the amounts of these drugs that "kingpins" ordinarily would traffic. (12) The Act itself was passed in record time, (13) without committee hearings to debate the issues in the bill. (14) Instead of focusing on the science of crack cocaine and data on its usage, debate centered on congressional concerns about the "crack epidemic" in urban areas that had been the subject of numerous media stories, (15) including a high-profile Newsweek article. (16) Much attention also focused on the recent death of basketball star Len Bias, a University of Maryland standout who died of a cocaine overdose the night after he was drafted by the Boston Celtics. (17)

      Congress's failure to consider any scientific or usage data before passing the Anti-Drug Abuse Act of 1986, and in particular before adopting the 100:1 ratio, has had negative consequences for federal drug policy. First, the Act has been used primarily to prosecute minor street-level retail sellers of crack cocaine, rather than wholesale sellers of drugs, completely undermining the purpose of the Act. (18) To put it another way, the resources that Congress intended to allocate to combat large-scale drug traffickers instead were diverted to prosecuting and incarcerating street-level dealers. Second, as discussed below, the focus on prosecuting street-level retailers of crack cocaine, combined with the severe penalties for those convicted under the Act, has led to the mass incarceration of young, African-American men. (19)

      The history of the Anti-Drug Abuse Act of 1986 illustrates the dangers of making criminal law policy in the absence of sound data. Fortunately, there are also numerous examples of legislators and policymakers collecting and using data to develop criminal justice policy. Sentencing guidelines legislation provides one example, (20) and the developments of drug courts and of mental health courts provide two more. The data used in formulating these programs are far from perfect and certainly have been subject to criticism. Nonetheless, these reforms demonstrate the benefits both of considering data in the development of criminal justice policy and of creating mechanisms to collect data in order to assess the effectiveness of those policies over time.

      1. Sentencing Guidelines

         Through the late 1970s and 1980s, a number of states developed sentencing guidelines that were designed to curb sentencing discretion of judges. Although the development of guidelines varied across jurisdictions, data played a critical role both in the initial creation of guidelines systems and in monitoring their impact. Concerns about lack of sentencing uniformity and problems with prison overcrowding spurred sentencing reform. (21) Believing that finding solutions to both of these problems required collection and consideration of information related to sentencing practices, drafters of guidelines in at least some states used data to set initial guidelines ranges. Perhaps more importantly, sentencing commissions collected extensive data on the implementation of the guidelines in order to ensure that they were meeting their statutory goals. (22)

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