Racism is a disease that infects our whole society. This infection has caused our laws to change so that prison terms are vastly longer than they ever were before. Our prisons and courts are filled with non-violent drug users whose primary offense is the color of their skin.
Approximately as many whites use illegal narcotics as African-Americans, but 90 percent of people arrested for drug offenses in DC are African-American.1 In DC, an African-American is nearly 4 times as likely to be arrested for drugs as a Caucasian. This is no accident. When Metropolitan Police officers go looking for arrests, they don't go to Georgetown, they go to Anacostia, even though as many people use drugs in one area as in the other.
To their credit, the DC Council has been addressing this problem, most recently by decreasing the maximum jail-time for first-time marijuana offenders and proposing to legalize possession of marijuana. They now continue their efforts by proposing the Record-Sealing for Non-Violent Possession of Marijuana Bill. This bill is necessary because many people are currently permanently handicapped by their criminal records, which make it difficult for them to find employment, rent an apartment, or get a job. This bill seals the criminal records of people whose only arrest was for possessing marijuana. I am particularly gratified to see that the Record-Sealing bill has seven co-sponsors. These lawmakers are willing to stand up be counted in the fight against racism. The D.C. National Lawyers' Guild strongly endorses this bill.
I can only find one fault with these bills. They don't go far enough. The epidemic of racism has thoroughly infected our justice system for years. The effects of this epidemic are insidious and far-reaching.
Anti-drug laws, combined with determinate sentencing laws, still prescribe preposterously long sentences of up to 30 years in prison for non-violent offenders.2 The laws also exact enormous fines. When they are released from prison, ex-offenders—returning citizens—often have huge debts and no way to repay them.
The plight of our fellow citizens goes beyond drug offenses, however. The same study that found African-Americans accounted for 90 percent of drug arrests in DC also found that they accounted for 80 percent of disorderly behavior arrests, 70 percent of traffic arrests, and 80 percent of arrests for "other assaults", a category that includes the least serious kinds of assaults.3
Legalization of a behavior does not automatically lead to fewer arrests. Instead, it appears that police find new causes for arrest. For example, in 2010 the Council removed "loud and boisterous" behavior from the "disorderly conduct" statute. In 2011, "disorderly conduct" arrests decreased by 16%, but there was no discernible decrease in overall arrests, suggesting that police officers may have found other pretexts to make arrests.4
These arrest figures strongly suggest that African-Americans are being targeted by police on the basis of racial characteristics, so-called racial profiling. To counteract racial profiling, we need to do more than pass this one bill affecting one small category of non-violent crime. We should extend this bill to all those who have criminal records for minor crimes. We need to give returning citizens a chance to rebuild their lives and support their families.
The entire War on Drugs has attacked the problem of drug use by treating the symptom—drug use itself—instead of the causes. Sealing arrest records, while a good idea in itself, only treats one symptom of the problems caused by racism. The problem starts with selection of targets for questioning by police—racial, or bias-based, profiling.
While police regulations contain a definition of bias-based profiling5, the D.C. Code does not. The Code lists only “discriminatory treatment” as a cause for investigation by the Police Complaint Board. This vague description should be amended by adding a detailed definition of bias-based profiling, as well as by providing a private right of action for any citizen who feels he or she has been victimized by it.6
Finally, the District of Columbia should work toward better relations between the community and the police department by establishing an independent Inspector General of Police, similar to the office of Inspector General created by New York City.
We cannot prevent every injustice caused by racism. But we can limit the number of injustices. The D.C. Council has the opportunity to do so. Will they take advantage of their opportunity?
1 Washington Lawyers' Committee for Civil Rights and Urban Affairs, Racial Disparities in Arrests in the District of Columbia, 2009-2011: Implications for Civil Rights and Criminal Justice in the Nation's Capital 13 (2013).
2 D.C. Official Code §48-904.01.
3 Id., 18, 20, 22.
4 Id., 21.
5GO-OPS-304.15 (March 19, 2007).
6See NYC Local Law 71 for an example of how NYC has dealt with the problem of bias-based profiling.