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Race and Incarceration in Delaware: A Preliminary Consideration, Eichler, 2003

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Preliminary Consideration
A Preliminary Consideration


Thomas by
P. Eichler
Thomas P. Eichler

Published by Delaware Center for Justice and Metropolitan Wilmington Urban League

The production and printing is underwritten by former Governor Russell Peterson,
James Gilliam, Sr., the Metropolitan Wilmington Urban League, and Delaware Center
for Justice.
Recommendations in this report are endorsed by:
ACLU of Delaware
Delaware Center for Justice
League of Women Voters of Delaware
Metropolitan Wilmington Urban League
NAACP, Wilmington Branch
National Association of University Women
Prison Ministries of Delaware
Unitarian Universalist Fellowship of Newark
United Methodist Women


Preface .................................................................................................................4
Executive Summary..............................................................................................6
Rationale and Methodology ..................................................................................7
Introduction: The Inescapability of Race..............................................................9
Significant Findings
Finding 1................................................................................................10
Finding 2................................................................................................12
Finding 3................................................................................................13
Conclusions and Recommendations ....................................................................20
Endnotes ............................................................................................................21
Appendix A ............................................................................................25
Appendix B ............................................................................................26
Appendix C ............................................................................................27

Thomas P. Eichler, M.A., M.P.A., was a Delaware cabinet official during the
administrations of Governor Castle, where he served as Secretary of Health and Social
Services, and Governor Carper, where he served as Secretary of Services to Children,
Youth and Their Families. While Secretary of Health and Social Services he was also a
member of the State’s Criminal Justice Council. He was also the first Executive Director
of Stand Up for what’s Right and Just (SURJ), a Delaware advocacy organization, serving
through June 2004.

This report is modeled after the report of the Justice Policy Institute titled Race and
Incarceration in Maryland (October 2003) by Vincent Schiraldi and Jason Zidenberg
( Thanks to Kevin R. Reitz for the use of his graph depicting male
incarceration by race from 1880 to 2000. The author is indebted to many people for their
assistance, including John P. O’Connell and his staff at the Statistical Analysis Center for
their data and advice. Thanks to Dr. Leland Ware for reviewing this report and providing
the Preface. Also thanks to Dr. Lana Harrison, Dr. Frank Scarpitti, and Dr. Tim Brandau for
their review of the report and to others whose review and comments have contributed to this
report. I also wish to thank the Delaware Center for Justice for publishing and distributing
this report.
The opinions expressed in this report are those of the author and not necessarily those of his
affiliate d organizations, past or present, or the funders of this report.


The United States has world’s highest incarceration rate. Delaware, the second smallest
state, enjoys the dubious distinction of having one of the highest incarceration rates of any
of the 50 states in America. More important, the scales of justice in Delaware weigh far
more heavily on African Americans than similarly situated Whites.
Incarceration Rate per 100,000 population1


United States of


South Africa

England & Wales











In Delaware, Blacks represent:
§ 20% of the general population;
§ 42% of those arrested for criminal offenses;
§ 64% of the prison population; and
§ 86.8% of those incarcerated for drug offenses.
This is not, as many assume, attributable to a higher incidence of criminal behavior among
Blacks. The national data shows that Non-whites are statistically more likely to be
imprisoned because they are more likely to be arrested than Whites. Much of this appears to
be attributable to the “war on drugs.” Studies have consistently shown that Whites use drugs
at rates comparable to Blacks, which makes them the vast majority of illicit drug users.
White drug dealers far outnumber Black dealers. Yet, of those incarcerated for drug charges
in Delaware, Blacks represent 86.8 percent of those sentenced to prison terms for drug


The percentage of Blacks incarcerated in Delaware--63.79% of all detentions; 64.30% of the
jail and prison population-- far exceeds the Black arrest rate, which is only 41% of all
arrests. In comparison, the percentage of White incarceration --36.03% of those detained;
35.61% of the jail and prison population --is significantly below the White arrest rate, which
is 56% of all arrests. Among those arrested, African Americans are two-and-a-half times
more likely to serve prison terms than Whites. Among those arrested on drug charges,
African Americans are five times more likely to be sentenced to prison terms of a year or
more than Whites arrested on the drug charges.
The cause of these disparities is not entirely clear but one conclusion is inescapable ;
Delaware’s criminal justice system treats Blacks differently and far less favorably than
similarly situated Whites. The data shows that the racial disparities in the criminal justice
system are increasing. Public officials responsible for Delaware’s criminal justice system
must examine this problem and develop policies that will reverse this alarming trend.
Leland Ware
Louis L. Redding Professor of Law and Public Policy,
University of Delaware


Delaware has one of the highest incarceration rates of any state, in a nation with the world’s
highest incarceration rate.
However, even more disturbing is that Blacks, who are 20 % of the general population in
Delaware, are disproportionately represented between those being arrested and jailed,
particularly for drug offenses.
Analysis of available data indicates that Blacks are being funneled into Delaware’s prisons
far beyond any explanation that can be made from either rates of arrest or illicit drug use.
Consider the following facts:
Prison sentences:
• Whites are 56% of those arrested,
• But Blacks are 64% of those sentenced to a jail or prison term.
Drug use:
• Whites are an estimated 73% of those using illicit drugs,
• But Blacks are 86% of those doing time for drug charges.
Drug Treatment:
• Whites are 59% of the admissions to the State’s community drug treatment
• But Blacks are a majority of those getting drug treatment in prison.
When you look at Delaware’s prison census, you will see that Blacks comprise almost twothirds of the prison population and are 86.8% of those incarcerated for drug offenses. In
fact, Blacks account for two-thirds of the 344% increase in Delaware’s prison capacity over
20 years.
From the data, we can derive a disturbing conclusion: White offenders enjoy a revolving
door back to the community compared to Black offenders, who are disproportionately sent
to prison.
Unequal risk of incarceration
As this report delineates, the risk of a White arrestee being sentenced to incarceration is only
40 % of the risk that a Black arrestee faces. Further, among arrestees on drug charges, the
chance that a White drug offender will be sentenced to a prison term (one year or more) is
only 21% of that faced by Black arrestees.
Three Significant Findings
This report presents three significant findings based on the data.
1. Blacks in Delaware are disproportionately represented in Delaware’s criminal justice
system versus their representation in the population at large.

2. As Delaware expanded its use of incarceration for drug offenses, Blacks have borne
the brunt of the increase.
3. While the reasons for Black disproportionate representation in the DOC census are
complex, several indicators raise questions about possible disparate consequences for
illicit activity.
These facts set off many alarms ranging from questions about the quality of justice for
Blacks to the effectiveness of public safety regarding White offenders. While more needs to
be done to analyze the reasons for these disparities, some effective remedial steps can be
taken now.
Principle recommendations of this report include:
1. Repeal Delaware’s minimum mandatory drug sentencing laws in favor of judicial
discretion under sentencing guidelines.
2. Examine enforcement and arrest policies to determine basis for White under
representation by creating a special commission charged with making
recommendations for feasible reforms in areas of pre-trial, sentencing, and correction
3. Implement reforms recommended in existing government report findings, from
reviewing the “violent” label put on drug offenses and improved treatment
alternatives for Department of Correction inmates as recommended by the
Sentencing Accountability Commission (SENTAC) to recommendations for
alternatives for new prison construction that are made in the DOC master plans for
male and female facilities.
4. Reduce caseloads of public defenders to meet the national standard.
5. Increase awareness of and access to drug and alcohol treatment programs and
services by aggressively promoting availability (similar to the state’s public
education smoking cessation campaign), and by removing barriers to court-directed
drug and alcohol treatment in group health insurance plans, starting with the State of
Delaware’s plan for State employees.
“The combination of miscommunications, ignored warnings and general hubris – all in a culture that discouraged internal
criticism – virtually guaranteed disaster. No, this is not a follow-up on NASA and the Columbia space shuttle tragedy. It is a
commentary on criminal justice in America. The Columbia Accident Investigation Board, after months of painstaking
investigation of the Feb. 1 space calamity, has issued a scathing report of those in charge. A similarly independent body ought
to take a look at our criminal justice system. It would find, as the NASA investigators found, not so much a lack of information
but rather an almost willful failure to connect the dots.”
William Raspberry, Connect the Dots on Crime, September 1, 2003

Race and Incarceration in Delaware: A Preliminary Consideration
was developed in response to continuing suggestions that reform of Delaware’s criminal
justice system cannot be effectively advanced without a growing understanding of the
impact of existing policies, particularly the war on drugs, on the African American
community in Delaware.
Unfortunately there presently is no other analysis of this issue regarding Delaware’s adult
criminal justice system. Considering that Delaware ranks high in its national rate of

incarceration and ranks first among the states in its expenditure for corrections (per capita
state and local expenditures), it would seem surprising that there has been no examination of
this by the State’s official policy agencies such as the Criminal Justice Council or the
Sentencing Accountability Commission.
In any case, limited, initial consideration of the issue is made here in the hope of sparking
continuing research and dialogue on this fundamental issue of the quality of justice in
This report explores one relatively simple question. Realizing that the Black population is
20% of the State’s overall population, I set out to find out how that one-fifth of the
population is represented in the criminal justice system. This report does not track
individuals moving through the system. It looks at the relative percentage representation of
Blacks and Whites in various groups (general population, illicit drug users, arrestees,
incarceration). Estimates of the relative risk of Blacks and Whites being in a group are also
made. For example, the risk of White arrestees being incarcerated is compared to risk faced
by Black arrestees. For more on the data and methodology see the Appendices.
The report analyzes demographic data about Delaware’s criminal justice system, principally
data on arrests in 2000 and the Department of Correction (DOC) census for June 30, 2000,
supplemented with DOC census data for 1980 and 1990. These arrest and DOC census data
are from the Delaware Statistical Analysis Center (DelSAC). The choice of using the year
2000 is made because that is the most recent year for which both arrest and DOC census
data could be obtained reflecting demographic (race) characteristics. Other sources,
particularly those lending national perspective, include the U.S. Justice Department’s
Bureau of Justice Statistics and the U.S. Department of Heath and Human Services’
Substance Abuse and Mental Health Services Administration (SAMHSA). The Justice
Polic y Institute’s report Race and Incarceration in Maryland (October 2003) has served as a
model for this report on comparable issues in Delaware, although each report benefits from
the unique state-level sources available to them.
This report is subtitled A Preliminary Consideration because of the limited analysis that has
been done here, in part dictated by the limited data from which the analysis could be drawn.
This report does not focus on Latino representation in the Delaware criminal justice system
because lack of definition in the State’s statistics prevents such consideration. Generally
this report will refer to the demographic categories of White, Black, Other as these are the
categories used in the Department of Correction data provided by DelSAC. Some other
sources refer to African American and such reference is generally used when those sources
are indicated. The report focuses on adult populations, leaving juveniles for another day.
Tom Eichler


The Inescapability of Race in the Discussion of Incarceration
in Delaware and Nationwide
“We must confront another reality. Nationwide more than 40% of the prison population consists of African-American inmates.
About 10% of African-American men in their mid-to-late 20s are behind bars. In some cities, more than 50% of young AfricanAmerican men are under the supervision of the criminal justice system…. Our resources are misspent, our punishments too severe,
our sentences too long.”
Justice Anthony Kennedy, speaking at the American Bar Association, August 2003.

A consideration of the facts on incarceration in the United States cannot proceed very far
before recognizing that the policies that result in the U.S. having the world’s largest prison
population (2 million persons) and the highest incarceration rate (702 per 100,000
population) have had a disproportionate impact on African Americans, Latinos and other
communities defined as non-White.2 The most recent figures from the Justice Department’s
Bureau of Justice Statistics show that, in 2002, African Americans nationally were
incarcerated at 7.4 times the rate of Whites, and Latinos were incarcerated at 2.7 times the
rate of Whites. 3 African Americans and Latinos comprised 70% of all persons incarcerated
in the U.S. in 2002, even though African Americans and Latinos make up 25% of the U. S.
population. 4
In its August 2003 report, the Bureau of Justice Statistics reported that if incarceration rates
continue at the 2001 level, one in 17 White men (5.9%), one in six Hispanic men (17.2%),
and one in three African American men (32.2%) born in 2001 will serve time in prison at
some point in their lifetimes. The report also indicated that 5.6 million Americans are
current or former prisoners; 39% of those are African Americans (2,166,000),5 even though
African Americans comprise only 12.8% of the national population. 6

Prisoners per 100,000 Males of Inmate's Race in Population

Figure 1.4. Male Imprisonment Rates by Race, 1880 to 2000


White Males


Black Males
















SOURCES: U.S. Department of Justice, Bureau of Justice Statistics, Prisoners in 2000 (Washington, DC: Bureau of Justice Statistics, 2001), p. 11 table
15; Margaret Werner Cahalan,Historical Corrections Statistics in the United States, 1850-1984 (Washington, D.C.: U.S. Government Printing Office,
1986), pp. 34 table 3-6, 65 table 3-31; Margaret Cahalan, “Trends in Incarceration in the United States since 1880: A Summary of Reported Rates and
the Distribution of Offenses,” Crime & Delinquency , 25:9-41 (1979), p. 40 table 11; Bureau of the Census, Census of Population (various years).

(See endnote 7)
This policy analysis will examine the issue of racial disparities on Delaware’s criminal
justice system, focusing particularly on the disproportionate representation of Blacks among
the state’s incarcerated population, and among those serving drug sentences. Although there
is debate among academics and policy makers as to the cause of the disproportionate

representation of people of color in Delaware’s prison system, the fact that the growing use
of incarceration in Delaware has disproportionately impacted the state’s Black citizens is
• Blacks as proportion of the general population: 20% 8
• Blacks as proportion of State incarcerated9 population: 64.2% 10
• Blacks as proportion of State population incarcerated for drug offense: 86.8% 11
Finding 1: Blacks in Delaware are disproportionately represented in Delaware’s
criminal justice system versus their representation in the population at large.

“This mass imprisonment of such a large portion of African Americans raises questions of justice, fairness, and access to
resources to rehabilitate offenders after making bad choices. Many of these men and women are from poor and working class
The State of Black America 2003, National Urban League 12

Black men are incarcerated at nearly seven times (6.78) the rate of White men. 13 In 2000,
according to the Delaware Population Consortium, 20 % of Delaware’s general population
was Black14. However, Blacks comprised 64.21 % of the Department of Correction (DOC)
census in 2000. 15 As noted above, nationally, Blacks are incarcerated at 7 times the rate of
Whites, similar to but slightly higher than the Delaware rate.
In the 20-year period from 1980 to 2000 the Delaware DOC census had increased from
1,436 inmates to 6,374- a 344 % increase. Black inmates have disproportionately
represented this dramatic increase:
• Black increase 389%;
• White increase 280%.
DOC Population Increase
















The percentage of the DOC census composed of Blacks grew in the 20-year period:
% Black
The DOC census grew from 1,435 in 1980 to 6,374 in 2000. Of that growth:
• 3,256 were Blacks; and
• 1,676 were Whites.

For every additional White in the 20-year increase in the DOC census there were
two Blacks.
Consider the implication of this finding. If the 20-year census increase were proportionate
to the State’s general population, for every four additional Whites added there would be one
Black. However, the experience has in fact has been that for every 4 additional Whites there
have been 8 additio nal Blacks in the growth of the DOC census.
While women represent only 7.89 percent of the total DOC census, Black women are
disproportionately represented at 5 times the rate of White women. 16
Changes in incarceration rates between 1980 and 2000 show that while the number of
Whites incarcerated grew during the 20-year period, the number of Blacks incarcerated grew
faster, and the proportion of Whites incarcerated declined.
Number Incarcerated



% Change

The rate of incarceration per 100,000 populations grew in all categories, but the Blacks
incarcerated per 100,000 is the highest.
Rate Per 100,000




Expressing the 2000 incarceration rates another way:
• One Black male out of 20 is incarcerated;
• One White male out of 140 is incarcerated;
• One Black female out of 284 is incarcerated;
• One White female out of 1,448 is incarcerated.
Incarceration Rate Per 100,000

Incarceration Rate Per

Incarceration Rate
Per 100,000









For the total Delaware population, one person out of 123 is incarcerated, or a rate of 811 per
100,000 population. This compares with one out of 142 incarcerated in the United States
(699 per 100,000, 702 in 2002), the highest rate for any nation in the world. 17 In short
Delaware has an incarceration rate that towers over the national rate, which itself is the
highest of any nation.


Finding 2: As Delaware expanded its use of incarceration for drug offenses, Blacks
have borne the brunt of the increase.
“The collective portrait of prisoners is very telling. Three-quarters have a history of drug or alcohol abuse, one-sixth a history
of mental illness, and more than half the women inmates a history of sexual or physical abuse. Most prisoners are from poor or
working-class communities and two-thirds are racial and ethnic minorities.”
Invisible Punishment: The Collateral Consequences of Mass Imprisonment18

The DOC incarcerated population in 2000 of 6,374 includes 1,033 with a drug charge, or
16% of the total population:
• 167 detained on drug charges;
• 866 serving a sentence.19
Of those incarcerated on drug charges, Blacks are 86.8 % of both the detained and sentenced
Drug offenses as a percentage of the DOC census grew dramatically between 1980 and
1990, then stabilized, while the total number continued to increase:

Drug Offenses
DOC Census
percent drug offenses




The absolute number has increased from 61 in 1980 to 1,033 in 2000.
Drug Offenses In DOC Census
DOC Population

Drug Offenses


DOC Census
Drug Offenses
DOC Census










The Black percentage of those incarcerated for drug offenses has greatly increased in the
20-year period:
• 57.38 in 1980;
• 70.83 in 1990;
• 86.83 in 2000.
Several research entities have suggested that Black Americans are disproportionately
incarcerated for drug offenses in the United States.20 To help understand the scale of this
situation, it is important to consider what is known to be the differences between indicators
of drug use by different races, and drug incarceration.
According to national data, Whites use drugs at rates similar to Blacks in the U.S., and what
disparity in use that may exist does not explain the level of disproportionate representation
experienced in Delaware’s prison system. According to the U. S. Department of Health and
Human Services, Substance Abuse and Mental Health Services Administration (SAMHSA),
in 2002, 8.5% of Whites, and 9.7% of Blacks reported using illicit drugs in the preceding

month. Among youth age 12 to 17, 10% of Black youth and 12.6% of White youth reported
using illicit drugs within the preceding month. 21
Race and Age of People Reporting
Use of An Illicit Drug In The Past
White Youth




All Whites




Source: SAMHSA 2002 National Survey

Note on source 22
Between 1980 and 2000 the DOC census of those incarcerated on drug charges increased
from 61 persons to 1,033. The number of Whites and Others incarcerated with drug charges
increased from 26 to 136 persons, while the number of Blacks increased from 35 to 897
persons. In effect, of all the increases in the DOC census in 20 years because of drug
charges, the Black increase was 25 times the 1980 number while Whites and Others
increased 5 times the respective 1980 number.
DOC Census Growth For Drug Offenses
Black Drug Offenders

All Other Drug


Black Drug



All Other



Finding 3: While the reasons for Black disproportionate representation in the DOC
census are complex, several indicators raise questions about possible disparate
consequences for illicit activity.

“There is a gap in alternatives to incarceration, primarily a lack of community-based substance abuse and mental health
treatment beds in Delaware. Because of these gaps in community-based supervision options, the Court has little choice but
to use jail or prison for women offenders.”
Delaware Department of Correction Female Offender Master Plan23

The reasons why Blacks, who compose only 20% of Delaware’s total population, account
for 64% of the DOC census are complex. Considering this issue from a national
perspective, researchers point to level of income as a major consideration. The data
analyzed here do not include information on income levels of the DOC census prior to
incarceration. But the level of income argument does not fully explain the disproportionate
representation of Blacks when a fuller consideration of various dimensions is reflected.
A survey of the research by Vincent Schiraldi and Jason Ziedenberg indicates that
“…whether or not White and racial and ethnic minorities actually commit crimes at the same

rates, non-Whites are more likely to be imprisoned because they are more likely to be
arrested for a criminal act.24 They indicate:
“The nation’s leading criminologists have found that higher arrest rates, alone, do not
account for the scale of the problem. Alfred Blumstein, a professor at Carnegie Mellon
University and Director of the National Consortium on Violence Research found that 76% of
the higher black imprisonment rate was accounted for by higher arrest rates for African
Americans, while 24% could be attributed to racial bias or other factors.”25

The data available for this report included arrest data for the entire year of 2000, as well as
Department of Correction (DOC) census data for the end of the second quarter of 2000 (June
30). As such it is not possible to determine how many incarcerations resulted from the year
2000 arrests. However, it is possible to compare the relative percentage of Blacks and
Whites in the year 2000 arrests with the relative percentage of Blacks and Whites in the
DOC census data.
In Delaware the data reflective of the criminal justice system help illustrate the dimensions
of disproportionality. Consider that in Delaware, Blacks are:
• 20% of the general population;
• 42% of the arrests;26
• 64% of incarcerated population;
• 64% of those sentenced to jail or prison term; and
• 66% of those serving a sentence of more than a year.
Delaware Criminal Justice System



Popul Arres Deten Jail or Sente

White 75.38 56.48 36.03 35.61%34.23
Black 20.06 41.09%63.79 64.30 65.63

Note: Population means Delaware general population; Jail or Prison means any
sentence to incarceration.
The percentage of Blacks incarcerated (detention: 63.79%, jail or prison: 64.30%) far
exceeds the Black arrest rate (41%). Meantime, the White incarceration percentage
(detention: 36.03%, jail or prison: 35.61%) significantly trails the White arrest rate (56%).
The data also show that while more Whites were arrested (18,911) than Blacks (13,758),
relatively fewer Whites were serving sentences:
Arrests to Sentences






Sent. >1Year









Note: Sentenced means sentenced to jail or prison

Among those arrested, it is estimated that Blacks are two-and-a-half times (2.48) more likely
to serve time than Whites. Expressing it another way, the risk that a White arrested person
will be sentenced to incarceration is only 40% of the risk that a Black arrested person will be
sentenced to incarceration. See Appendix A for methodology on risk calculation.
We must ask: what is it about White arrests that they reflect such a low ratio to those
sentenced to incarceration compared with Black arrests ratio to Blacks incarcerated?
The disproportionality is more striking when considering drug offenses. The rate of illicit
drug use, as discussed above, is roughly proportionate between Whites and Blacks. For the
purpose of this analysis, Blacks, Whites, made an estimate of the percentage of illicit drug
use and Other based on SAMHSA national estimates for illicit drug use by race and a
Delaware-specific estimate of the rate of total drug use (8.45% in the past month. See
Appendix B for estimation of illicit drug use by race. Based on this analysis, estimates for
Delaware adult illicit drug use in the past month are:
• 22.28% Black;
• 73.37% White; and
4.35% Other.
The 22.28% rate for Blacks is nearly equivalent to the Black percentage of the total
Delaware population (20%).
Drug arrests during the 12-month period of 2000 totaled 3,280, or 9.8% of the 33,485 arrests
made that year. The 3,280 drug arrests break down into two major categories of drug
arrests: sale and manufacture, and possession:
• 607 sale/manufacture arrests; and
• 2,673 possession arrests.
Looking at these 2000 arrest figures on the basis of the arrest rate per 100,000 populations
indicates the following rates:
• Arrests of all types 4,259 per 100,000 general population;
• Arrests of Whites
3,191 per 100,000 White population;
• Arrests of Blacks
8,725 per 100,000 Black population.
Regarding arrests for drug charges, the rates are:
• All drug arrests
340 per 100,000 general population;
• White drug arrests
210 per 100,000 White population;
• Black drug arrests
904 per 100,000 Black population.
Expressing these rates another way, the risk that a Black person will be arrested on a drug
possession charge (904 per 100,000 Black persons) is more than four times greater
(904/210) than the risk that a White person will be arrested on a drug possession charge
(210 per 100,000 White persons).
The risk of White users of illicit drugs being arrested is only 19% of the risk that a Black
user will be arrested. This is in spite of the fact that White persons are estimated to
constitute about 73% of the illicit drug using population in Delaware.
For those thinking that the arrest differential may be explained by choice of drug, say
marijuana which is seen by some as less serious while cocaine is considered to be of major
concern, according to SAMHSA’s 2002 survey, White users of cocaine in the past year

(4.172 million persons) outnumbered Black cocaine users (760,000) by 5.5 to 1. 27 See
Appendix C for national data on use of cocaine by race.
The risk of arrest for sale and manufacture is even more contrasting: the risk of a Black
person being arrested (269 per 100,000) is more than eight times higher (269/31) than a
White person (31 per 100,000).
The issue here is whether Blacks are eight times more likely to be engaged in sale and
manufacture of illicit drugs, in contrast to being arrested for it. Unlike arrest and
incarceration data, there are no Delaware quantitative data on this question, although there
are qualitative data from the National Drug Intelligence Center, as indicated below.
“Research on patterns of drug purchase and use demonstrates that overall drug users report their main drug providers are sellers
of the same racial or ethnic background as they are.”
Dorothy Lockwood, Anne E. Pottieger, and James A. Inciardi 28

From a national perspective, according to the Leadership Conference On Civil Rights’ report
Justice on Trial:
“…since it is empirically true that more whites than non-whites used crack drugs in this
period, this argument presumes that whites largely bought their crack from non-whites.
Studies, however, suggest the contrary – that drug users tend to purchase their drugs from
individuals of the same race as the user, and that drug seller racial breakdowns are similar
to drug user racial breakdowns.”29

Other studies also strongly suggest that drug users tend to purchase from those of the same
race. According to the Human Rights Watch report Punishment And Prejudice: Racial
Disparities In The War On Drugs:
“…such data as exists indicates whites constitute a far greater share of the drug selling
population than of the population arrested for drug selling. For example, during the period
1991-1993, SAMHSA included questions about drug selling in the annual NHSDA survey.
Although the responses are best seen as a rough approximation of drug selling activity, they
are nonetheless highly suggestive…On average over the three year period, blacks were 16
percent of admitted sellers and whites were 82 percent. According to research on patterns
of drug purchase and use in selected major cities, drug users reported that their main drug
sources were sellers of the same racial or ethnic background as they were…A large study
conducted in the Miami, Florida metropolitan area of 699 cocaine users (powder and crack)
revealed that over 96 percent of users in each ethnic/racial category were involved in streetlevel drug dealing, which again would suggest a racial profile of sellers that is comparable
to that of users.”30

SAMHSA’s 2002 survey reports data on sale of illegal drugs by youth aged 12 to 17 years.
Among 1,076 respondents indicating they had sold drugs in the past year, 961 were White
and 135 were Black. 31
Michael Coyle, writing from a national perspective has suggested that:
“Most criminal justice analysts argue that racial disparities in arrest and imprisonment
relate to demographics. Crack is usually sold in small quantities in open-air markets.
Powder is more expensive and is usually sold in larger quantities behind closed doors in
locations that are inherently private. In urban areas the “fronts” of crack use and sales are
large metropolitan centers that gather the greater emphasis of law enforcement. Since
minorities and lower income persons are most likely to inhabit these areas, they are
therefore at greater risk of arrest for crack cocaine possession than are white and higher


income powder offenders. The latter inhabit working class and upper-class neighborhoods
where drug sales are more likely to occur indoors instead of the street sales of the urban
neighborhoods that receive disproportionate (greater) attention from law enforcement.
Though it true that open-air drug sales are easier to observe than indoor drug sales, the
current allocation of law enforcement resources results in a policing structure that is race
and class imbalanced.” 32

These findings strongly suggest that most drug dealers nationally are White. Is there
any reason not to suspect that to be the case in Delaware as well?
The National Drug Intelligence Center’s report Delaware: Drug Threat Assessment
provides a drug-by-drug assessment of trafficking in Delaware.33 While not providing
numeric data in reviewing the drug threat by various types of drugs, the report does make
the reference to dealers by race, including (emphasis supplied):
• Cocaine “African American and Caucasian local independent dealers…dominate
transporters of cocaine into Delaware”;
• Regarding “Wholesale -level cocaine distribution” in Delaware – “Dominican
criminal groups control the wholesale- and retail-level distribution of powdered
cocaine in Wilmington, while Caucasian local independent dealers are the primary
distributors of powdered cocaine elsewhere in the state”;
• Regarding heroin – “African American and Caucasian local independent dealers,
Dominican criminal groups, and local street gangs…are the dominant transporters
of heroin into the state.”
• “Marijuana is the most widely abused illicit drug in Delaware…Caucasian local
independent dealers and abusers are the primary cannabis cultivators in the
state…African American and Caucasian local independent dealers and Mexican
criminal groups…also transport marijuana into the state…(Jamaican criminal
groups) often sell mulitpound quantities of marijuana to African American and
Caucasian local independent dealers…”;
• Ecstasy – “Caucasian criminal groups and independent dealer are the primary
• Diverted pharmaceuticals – “Caucasian local independent dealers and abusers are
the primary retail-level distributors of diverted pharmaceuticals in Delaware.”
Clearly, Whites (Caucasians) figure prominently among those dealing drugs in Delaware,
even if there are no numbers to quantify the present situation.
Under the circumstances, one might expect that the 424 Black arrests for sale/manufacturing
might be accompanied by more than 2,000 White arrests for sale/manufacturing, instead of
the 182 that were actually recorded in the year. Why are so relatively few Whites arrested in
Delaware on drug sale/manufacturing charges?
The Delaware picture of the criminal justice system regarding drug offenses portrays the
following picture for Blacks:
• 20% of the general State population;
• 22.28% estimated illicit drug use in previous month;
• 56% of drug arrests;
• 87% of those detained for drug charge;
• 85% of those sentenced to incarceration for a drug charge;
• 84% of those sentenced to greater than a year for drug charge.


Delaware Criminal Justice System - Drug


Popul Illicit Arres Deten Sente Sente

White 75.38%
20.06 22.28 56.37%86.83 86.84 84.10%


Note: Sentenced means to jail or prison
Even if one is not persuaded on the disproportionate issue regarding either Black percentage
of the population (20%), or estimated drug use (22.28%), one should consider the
relationship of arrests for drug charges to incarceration. The data available for this analysis,
entire year of arrest data for 2000, and one day DOC census on June 30, 2000, while not
strictly comparable, do allow for a comparison of relative ratios of arrests to incarceration
by race.
Presumably, an arrest on a drug charge is equally serious and well founded irrespective of
race. That being the case, even in the face of differing rates of arrests for drug charges by
Whites and Blacks, one would expect to see relatively comparable levels of incarceration.
However, the picture is:
Drug Arrests - Sentences



Arrest for

for Drug

for Drug

1yr +











This graph raises the question: Where have all the White drug arrestees gone?
Among those arrested on a drug charge, the risk that White persons arrested on a drug
charge will be sentenced to a year or greater prison term is only one-fifth (21.11%) the risk
faced by Black persons arrested on a drug charge.
Unless one believes that the quality of the arrests of Whites for drug charges was largely defective
compared to those for Blacks, one must consider whether there is significant disproportionate
application of post-arrest justice procedures.

A consideration of possible key reasons why communities of color are over represented in
the corrections system is made by Schiraldi and Ziedenberg and includes:34
• Overrepresentation in the corrections system is one result of social disadvantages
(less access to high quality education, high unemployment rates).
• Policing practices targeting low-income communities have the unintended
consequence of arresting disproportionately more people of color, even though
Whites use and sell at the same or higher rates. If one is more likely to be arrested,
one is more likely to build up a criminal history resulting in subsequent



Whites, by the nature of their relatively better economic status, may have access to
better legal representation who more vigorously advocate for their release. Studies
in the juvenile justice system have shown that White youth are twice as likely as
Black youth to retain private counsel, and youth represented by private attorneys are
less likely to be convicted and less likely to be tried as adults than youth represented
by either public defenders or appointed counsel. 35
Whites may have better access to high quality treatment and related services to avoid
crime and prison. Race may influence the decision-making of criminal justice
professionals, including officers of the court. Schiraldi and Ziedenberg report on
studies indicating that Whites are more successful than non-Whites at getting charges
reduced to misdemeanors or infractions. 36

In Delaware, the Office of Public Defender attorneys handling cases in Superior Court carry
an average of 410 cases per year (237 felony cases, 153 violation of probation cases, and 20
cases returned from appeal) compared with the national standard of 150 felony cases.37
In Delaware, Whites were 59% of admissions for State provided community-based adult
drug and alcohol treatment, but only 13.2% of those serving a drug sentence, while Blacks
were 36% of State community-based treatment admissions but 86.8% of the population
serving a drug sentence. 38
The disproportionate geographic participation in state-funded drug and alcohol treatment is
illustrated by a 1999 study commissioned by The Division of Alcoholism, Drug Abuse and
Mental Health by Robert A. Wilson. It indicates while the City of Wilmington represents
8.9 percent of the State population in need of treatment that:
• For every 17.8 residents of Wilmington in need of treatment, one person is treated;
• Compared with New Castle County, 4.1 to 1;
• Kent County 8.8 to 1; and
• Sussex County 8.9 to 1. 39
Incarceration vs. Treatment By Race
% Black Drug Prison
% Black Treatment
% Whites Drug Prison
% White Treatment







Note: indicates percentage of participants in State’s community-based drug and
alcohol treatment versus percentage of population incarcerated on a drug conviction.


The limited nature of the data used in this analysis is sufficient to document a serious
disproportionate representation of Blacks in Delaware’s criminal justice system, especially when
comparing arrest rates with rates of those sentenced to incarceration. This is especially true for
drug offenses. While the data are sufficient to raise issues, the issues they raise cannot be answered
with the data available here.

Further analysis should be done to:
• Track cases from arrest to disposition to allow for understanding of disproportionate
representation by race, gender, jurisdiction, prior criminal record;
• Flag trends through longitudinal reporting;
• Assess juvenile justice experience to see how it compares with the adult experience;
• Evaluate adequacy of legal defense for the indigent.
Such analysis should be undertaken on a regular basis by the State’s agencies responsible
for monitoring the criminal justice system, with reports to the bodies responsible for policy
development. The Delaware Statistical Analysis Center (DelSAC), for example, should be
charged and resourced to analyze the data it already collects for policy implications, such as
those raised here.
DelSAC should be equipped to conduct racial/ethnic impact statements the same way it
presently provides bed impact statements on pending legislation.
In order to achieve the kind of balanced approach to public safety that public opinion
and best practices support, the following recommendations are made for further
consideration. The State criminal justice policy bodies should:

Make a commitment to research-based policy development and data-based
evaluation of existing policy;
Create racial and ethnic impact statements for all criminal justice legislation;
Examine enforcement and arrest policies to determine basis for White underrepresentation;
Reduce caseloads of public defenders;
Restore to judges discretion on drug minimum mandatory sentencing;
Aggressively promote access to drug and alcohol treatment comparable to the “stop
smoking” advertising campaign being advanced by the State;
Implement the recommendation of the Treatment Task Force for drug and alcohol
screening of arrestees;
Require all drug and alcohol clinical assessments by the Treatment Access Center
(TASC) to be complete and available to the judge at time of sentencing;
Remove barriers to court-directed drug and alcohol treatment in group health
insurance plans, starting with the State of Delaware’s plan for State employees;
Imple ment Sentencing Accountability Commission (SENTAC) recommendations
including reviewing the “violent” label on drug offenses, and those recommendations
for improved treatment of DOC inmates;40
Implement the recommendations for alternatives for new prison construction that are
made in the DOC master plans for male and female facilities;41 and
Create special commission charged with making recommendations for feasible
reforms in areas of pre-trial, sentencing, and correction policies.


Delaware rate based on analysis of DOC Demographics for June 30, 2000 Snapshot
Population. Delaware Statistical Analysis Center, January 2003. U.S. rate from Harrison, Paige
M. and Jennifer C. Karberg, Prison and Jail Inmates at Midyear 2002, April 2003, Washington,
DC: Office of Justice Programs, Bureau of Justice Statistics, page 2, Table 1 an narrative.
International rates from International Centre for Prison Studies, available on line at

Harrison, Paige M. and Jeffifer C. Karberg, Prison and Jail Inmates at Midyear 2002,April
2003, Washington, DC: Office of Justice Programs, Bureau of Justice Statistics, page 2, Table 1
and narrative. The 702 compares with 690 at midyear in 2001, the previous year. Note that
since the original draft of the report BJS has published its new report for 2003 showing the U.S.
incarceration setting another record high at 715 persons incarcerated per 100,000 population,

Id. Table 14, page 11. Rate of persons incarcerated (prison and jail) by race: Ratio of Whites
to African American incarcerated 7.411; Whites to Hispanic 2.681.

Id. Table 13, page 11. Calculation of male and female populations divided by total population.


Bonczar, Thomas, Prevalence of Imprisonment in the U.S. Population, 1974-2001. (2003)
Washington, Dc: Office of Justice Programs, Bureau of Justice Statistics. Table 4, page 4.

U.S. Census Bureau website, Table 1. Population by Age, Sex, and Race and Hispanic Origin:
March 2002,

Kevin R. Reitz, Sentencing at the Crossroads: An Exploration of the Journey; Past, Present,
and Future, Plenary Session, Annual Meeting of the National Association of Sentencing
Commissions, Seattle Washington, August 11, 2003

Delaware Population Consortium, Population Projection Series, October 8, 2002 for July 1,
2000. http://www.dehealthdata.ocr/population/DPC_2002VO.pdf, Total Delaware population:
783,600; Black population: 157152.

For the purpose of this report “incarcerated” means anyone counted on the DelSAC DOC
census report of January 13, 2003, in the categories of: major institutions; the work release
centers; other DOC locations. Not included from the DelSAC reports are the categories of:
home confinement and supervised custody; and absconders and escapees.

Based on analysis of DOC Demographics for June 30, 2000 Snapshot Population, Delaware
Statistical Analysis Center, January 2003. Analysis of this data shows a DOC census of 6374
including a Black census of 4093 The 6374 DOC CENSUS COMPARES WITH A 7,043
NUMBER REPORTED FOR Delaware by the Bureau of Justice Statistics report Prison and Jail
Inmates at Midyear 2000, March 2001.

Id Based on analysis of DOC Demographics for June 30, 2000 Snapshot Population,
Delaware Statistical Analysis Center, January 2003. Analysis of this data shows 1,033
incarcerated on a drug offense, including 897 Blacks.

The State of Black America 2003, The Harmful Impact of the Criminal Justice System and
War on Drugs on the African-American Family, James R. Lanier, p. 169.



White men incarcerated at rate of: 714 per 100,000 White men, Black men incarcerated at rate
of 5072 per 100,000 Black men = 6.78 Black men to 1 White man.

Profiles of General Demographic Characteristics 2000 Delaware, U.S. Census Bureau,
May 2001, Table DP-1. Profile of General Demographic Characteristics: 2000

From DelSAC report: DOC census included 4093 Blacks (male and female)/6374 total census
= 64.21%

From DelSAC report: White females incarcerated at rate of 69 per 100,000 White females;
Black females at rate of 352 per 100,000 Black Females.

Beck, Allen J. and Paige M. Harrison, Prisoners in 2000, August 2001, Washington, DC:
Office of Justice Programs, Bureau of Justice Statistics, Table 1.

Invisible Punishment: The Collateral Consequences of Mass Imprisonment, Edited by Marc
Mauer and Meda Chesney-Lind, 2002, p. 2.

Note: the DOC census is a one-day snapshot (June 30, 2000). There is high turnover in
detention beds and in beds occupied by persons serving sentences of a year or less (jail). The
total number of persons occupying DOC beds on drug charges in a full year is much higher than
a one-day census number.

A few of these studies include: Justice on Trial, Leadership Conference on Civil Rights and
Leadership Conference Education Fund,;
Punishment and Prejudice: Racial Disparities in the War on Drugs, Human Rights Watch, May
2000; Race and the War on Drugs, Michael Toner, 1994 U. Chi. Legal Forum, Racial
Disproportional of U.S. Prison Populations Revisited, Alfred Blumstein, University of Colorado
Law Review 1993; Analytical and Aggregation Biases in Analyses of Imprisonment:
Reconciling Discrepancies in Studies of Racial Disparity, Robert Crutchield, George Bridges
and Susan Pitchford, Journal of Research in Crime and Delinquency, 1994, Race to
Incarcerate, Marc Mauer, The Sentencing Project, 2001.

Substance Abuse and Mental Health Services Administration. (2003). Results from the 2002
National Survey on Drug Use and Health: National Findings, (Office of Applied Studies,
NHSDA Series H-22, and DHHS Publication No. SMA 03-3836). Rockville, MD.

Substance Abuse and Mental Health Services Administration. (2003). Results from the 2002
National Survey on Drug Use and Health: National Findings (Office of Applied Studies,
NHSDA Series H-22, DHHS Publication No. SMA 03–3836). Rockville, MD.

Tetra Tech, Inc., Pulitzer/ Bogard & Associates, L.L.C., Huskey & Associates. (2000).
Delaware Department of Correction female offender master plan: findings and recommendation
report, p.29.

Schiraldi, Vincent and Jason Ziedenbert, Race and Incarceration in Maryland, October 23,
2003, The Justice Policy Institute.

Alfred Blumstein, “Racial Disproportionality of U.S. Prison Populations Revisited,”
University of Colorado Law Review 64 (1993), pp. 743-60.



Arrest data based on adult arrests for the year 2000, DelSAC report 2000 Arrest Statistic
Statewide Totals For Delaware by Age, Race and Gender, December 19, 2003.

SAMHAS, Office of Applies Studies, National Survey on Drug Use and Health, 2002,l
Appendix B, Table 1.36A, Cocaine Use In lifetime, Past Year, and Past Month among Persons
Aged 12 or Older, by Demographic Characteristics.

Dorothy Lockwood, Anne E. Pottieger, and James A. Inciardi, “Crack Use, Crime by Crack
Users, and Ethnicity,” in Darnell F. Hawkins, ed Ethnicity, Race and Crime. New York: State
University of New York Press, 1995, p.21.

Leadership Conference on Civil Rights and Leadership Conference Education Fund, Justice on
Trial: Racial Disparities in the American Criminal Justice System, referencing K. Jack Riley,
“Crack, Powder Cocaine, and Heroin: Drug Purchase and Use Patterns in Six U.S. Cities”,
National Institute of Justice, United States Department of Justice (December 1997), p.1.

WAR ON DRUGS, Section VII. May 2000.

Treatment, SAMHSA Drug Selling Youth, Highlights of Recent Reports on Substance Abuse
and Mental Health, 2002 survey,

Michael Coyle, Race and Class Penalties in Crack Cocaine Sentencing, The Sentencing

Delaware Drug Threat Assessment Update, U.S. Department of Justice National Drug
Intelligence Center, May 2003,

Schiraldi and Ziedenbert, op cit, p.16-17.


Bateman, Casey, Greg Jones and Mary Uhlfelder. Issues in Maryland Sentencing—An
Analysis of Unwarranted Sentencing Disparity (2002). College Park, Maryland: State
Commission on Criminal Sentencing Policy.

Schmitt, Christopher, “Plea bargaining favors Whites, as blacks, Hispanics pay price,” San
Jose Mercury News, December 8, 1991, and Miller, Jerome G. Search and Destroy: African
American Males in the Criminal Justice System. (1996) Cambridge University Press.

Lawrence M. Sullivan, February 5, 2004 Joint Finance Committee Hearing.


Delaware Health and Social Services, Division of Substance Abuse and Mental Health,
Division funded adult admissions by fiscal year and client demographics – State Fiscal Years
1986 – 2002,

Wilson, Robert A., The Dimension of Alcohol and Drug Abuse in the State of Delaware,
October 1999, Delaware Health and Social Services, Division of Alcohol, Drug Abuse and
Mental Health.



Sentencing Trends and Correctional Treatment in Delaware, April 10, 2002, Sentencing
Accountability Commission,

Delaware Department of Correction Male Offender Master Plan: Findings and
Recommendation Report, June 1, 2000, Tetra Tech, Inc., Pulitzer/Bogard & Associates, Huskey
& Associates and Delaware Department of Correction Female Offender Master Plan: Findings
and Recommendation Report, June 1, 2000, Tetra Tech, Inc., Pulitzer/Bogard & Associates,
Huskey & Associates


Appendix A: Data and Risk Analysis
The populations examined in the report are discrete groups with the data for each a “snap shot” of that group
with no implication that individuals are being tracked across groups. The “snap shot” for each group is made
for the same year 2000-time period but varies, for example:
• General population
July 1, 2000;
• DOC census
June 30, 2000;
• Arrest data
One year: January 1 – December 31 2000;
• Drug use
Whenever the SAMHSA phone survey was made in 2000.
The groups include es timates (general population estimated by Delaware Population Consortium, drug use
based on surveys by Substance Abuse and Mental Health Services Administration) as well as “hard numbers”
(DOC June 30 head count, arrest data for 2000).
The groups looked at vary considerably in size, from 592,596 Whites in the general population to
83 Whites sentenced to >1 year drug sentence for example. The analysis consists primarily of examining the
relative percentage of Whites and Blacks in each group.
In addition, an estimate of risk is made in some cases to get a sense of the relative risk comparing the percent
of, for example, Whites arrested to Whites sentenced to incarceration, relative to Blacks arrested to Blacks
sentenced to incarceration:
#White Arrested / # White Sentenced to Incarceration
#Black Arrested / # Black Sentenced to Incarceration
18,911 White Arrests / 1,886 White Incarcerated
10.03 White Arrest to White Incarcerated Ratio
4.04 Black Arrest to Black Incarcerated Ratio

= Ratio White: Black Arrested
to Incarcerated

= 13,758 Black Arrests / 3,406 Black Incarcerated

2.48 Whites to 1 Black

An estimate of the chance, or risk, that a White arrestee will be sentenced to incarceration, in comparison to a
Black arrestee being sentenced to incarceration is:
4.04 Black Arrest to Black Incarcerated Ratio
10.03 White Arrest to White Incarcerated Ratio

= 40%

That is to say it is estimated that it is nearly two-and-a-half times more likely that a Black arrestee will be
sentenced to incarceration than it is that a White arrestee will be sentenced to be incarceration.
Again, the data available for this analysis are not identical “snap shots”, nor are individual arrestees being
tracked through the criminal justice system toward incarceration. The disproportional racial representation
found in these estimates highlight the urgency of more in depth analysis of what is happening and why in
Delaware’s criminal justice system. The implications of the risk estimates made here are:
• Black arrestees almost two-and-a-half times (2.48) more likely to serve time;
• Black arrested on drug charge four times (4.16) more likely to serve a drug sentence;
• Black arrested on drug charge nearly five times (4.74) more likely to serve a sentence longer that one
• Black user of illicit drugs is more than five times (5.23) more likely to experience an arrest on a drug


Appendix B
January 2, 2004 FILE: RESEARCH PROJECT 2004, TPEdrugEstimateJan.2004
Methodology for estimating preva lence of illicit drug use by Delaware population 12 years
and older.
1. 2001 NHSDA State Estimates gives tables by state reporting past month use of any
illicit drug. Chose the Total group, 1999-2000 that is 8.45 %., Table A.1.
2. Multiplied the 8.45 rate by the July 1, 2000 Delaware population = 66433.
3. To estimate the numbers for White, Black, Other took the Delaware Population
Consortium estimates for Delaware populations,
And multiplied by the national rates in SAMHSA national survey,,
4. Multiplied these rates by the respective populations.
5. Multiplied that result by the % of the Delaware population represented by each
population group times the total estimated illicit drug use (66433) to the get the
estimate for each population group.
Illicit Drug Estimate
National rate, month

Drug use


Drug use

% of pop.

Est. drug use





This calculation is done to get an estimate of the relative illicit drug use among the population groups, relative
to other events. As such it does not purport to be an empirical calculation of Delaware drug use, but a way of
getting relative estimates where no empirical data could be found.


Appendix C