Though we know that Black and white people use and sell drugs at similar rates, a new analysis of state sentencing data shows that Black people were convicted of simple drug possession at disproportionally high rates relative to their population in nearly every county in Washington. The same is true for Native Americans. Conversely, in the vast majority of counties, white people were convicted of possession at much lower rates relative to their population.
These findings detail the criminal legal system's grossly uneven application of a law the state Supreme Court struck down a couple weeks ago in its decision on State v. Blake. That decision decriminalized possession of small amounts of drugs statewide, and rendered people convicted under that statute eligible to have their prison time knocked down and their records wiped clean of the charge.
In her partial concurrence, Chief Justice Debra Stephens said the "indisputable" racial disproportionality in the justice system led her to agree with part of the majority's opinion, and she cited some good recent scholarship, as well as some older and more nationally-focused reports to back that up.
But this data, pulled by a team of volunteers at a Microsoft hackathon last summer and presented by a new nonprofit organization called the American Equity and Justice Group (AEJG), shows the astonishing breadth of that racial disparity on a county level in Washington. State and local officials who are currently considering plans to recriminalize drugs in the wake of Blake might want to take a look at the numbers before deciding to reinforce this front in the racist war on drugs.
"Blake is causing every stakeholder in this system to question what we’re doing going forward," said Kim Gordon, a criminal defense attorney with AEJG. "For those who say we have to rush to recriminalize, I would say—if we didn’t get it right over the last few decades, what makes us think we’re going to suddenly enforce these laws in a way that’s fair and equitable and does less rather than more harm?"
The data from the AEJG takes 20 years of simple drug possession cases from Washington's Caseload Forecast Council sentencing data, compares the yearly average against the Washington census and population data for the year 2019, and then spits out county-level breakdowns of the state's conviction rates by race.
(The cases also included attempted possession, conspiracy to possess, and soliciting possession—all of which fall under the statute. The cases do not include Latinx people convicted of this former crime, "because the census data does differentiate by Latinx." And, so long as we're talking about the quirks of this data set, there are instances where a county's case average shows a value for a given demographic but its percentage of population in 2019 shows zero. In those instances, the data is picking up people who the census did not pick up for some reason, or people who were convicted before 2019 but moved away before then.)
According to the data, judges convicted people on 126,175 cases of drug possession between 1999 and 2019, and they convicted Black people at disproportionally high rates in every county except for Pacific, Pend Oreille, San Juan (which recorded zero Black residents in 2019), Grays Harbor, and Ferry (also zero Black people).
Racial disparities were widest in King County, which saw 13,941 simple possession convictions during that twenty-year period. Of those cases, 40.2% involved Black people, 5% involved Asians, 1.5% involved Native Americans, and 50.5% involved white people. In 2019, King County’s racial breakdown was 7% Black, 19.9% Asian, 1% Native, and 67.1% white.
In a statement, a spokesperson for the King County Prosecuting Attorney's Office (KCPAO) called racial disproportionalities in sentencing data "unfortunate," and said the office has "a role in addressing this concerning disproportionality."
Prosecutors only charge the people the cops bring them, and the judges ultimately make the sentencing decisions after hearing from both the prosecution and the defense, so, the prosecutors argue, the whole system is involved in perpetuating these outcomes.
"Our filings standards are different now from 1999 or 2010 or even a year ago. We’re proud of our work with LEAD [a diversion program], community groups and Drug Court—and we realize there is still significant work to do together," the spokesperson added.
Driven in part by "racial disproportionality" in drug charging and sentencing decisions, the spokesperson noted, in 2018 the KCPAO decided to stop prosecuting drug possession cases involving amounts less than a gram.
Though things may have turned around in the last couple years, Gordon noted, the data forces the KCPAO to "ask itself pretty seriously if they are as progressive as they say they are."
As state lawmakers continue to debate a response to the Blake decision, local officials are contemplating their own responses. Lawmakers in Lewis County said they plan to pass an ordinance to recriminalize controlled substances, either as a gross misdemeanor or as a felony. But like nearly every other county, Lewis applied the simple possession law in a racially disparate way.
The same is true over in Snohomish County, where city officials in Marysville have already passed a law to recriminalize simple drug possession.
These numbers represent a small slice of the data that AEJG plans to include in the Public Equity and Justice System (PEJS), a forthcoming website that will present a public, filterable database that combines convictions data currently siloed across three different state agencies: the Department of Corrections (DOC), the Washington State Administrative Office of the Courts (AOC), and the Caseload Forecast Council (CFC).
"None of that data talks to each other," which has presented problems over the course of her 25 years as an attorney, Gordon said.
So often, lawmakers and advocates can only ground policy discussions on the racial impacts of certain proposals or longstanding laws in anecdotes, which are too often dismissed with other anecdotes. But with the PEJS in place, when something like the Blake decision comes down, we can all know which populations will be affected "within minutes," Gordon said.
The site will officially launch with much more data in a couple months, and it will allow users to see "how sentencing decisions vary by judge, county, and demographic characteristics including race, ethnicity, gender, and age."
Planned updates include a year-to-year breakdown of the conviction data by county, and "integrating more data from different points in the life of a criminal case so we can see the full justice continuum, starting from the first contact with law enforcement all the way through to ultimate resolution of the case."
The idea for the project sprung from the mind of Anthony Powers, the reentry program manager at the Seattle Clemency Project and a parter with AEJG.
Over the phone, Powers said the idea came to him while he was incarcerated. As he served what ended up being 26 years of a 78-year sentence, he'd help out fellow inmates interested in filing resentencing petitions. During the course of this work, he said he "probably read through a two-foot stack of cases." As he continued to read and research, he started to notice wide "racial and socioeconomic disparities" among people convicted of the same crime
After he got out and started working with the Seattle Clemency Project, he grew increasingly perturbed by the lack of a central and easily accessible database housing the state's criminal records. And he didn't want to have to potentially wait years for University of Washington researchers to study the issue.
So, Powers said, he pitched contacts at Microsoft on the idea of creating a tool that would allow the public to cross-reference and filter the state's data on convictions. In the summer of 2020, a team of 30 volunteers at a hackathon, led by Microsoft senior data analyst Jonica Couweleers, ran with an idea. That process led to the creation of a prototype of the Public Equity and Justice System.
Both Gordon and Powers hope the data will help judges, prosecutors, and police officers recognize the trends in their decision-making relative to others across the state. "The idea is not to point out people as racist, but to provide the data so that well-intentioned people can understand their decisions and change," Gordon said.
Ultimately, they hope the website "becomes really boring," with increasing awareness and change yielding to a more consistent and equitable application of the law.