Drugs and the Justice System

views updated


The United States justice system has been affected since the early 1900s by attempts to eradicate various drugs. The first legislation aimed at drugs was the Harrison Act of 1914, which outlawed opiates and cocaine. Following that act, laws were passed or amended at intervals, but the war on drugs began in earnest in the early 1970s after Congress passed the Comprehensive Drug Abuse and Control Act in 1970. The phrase "war on drugs" dates to 1971, during the first Nixon administration. A national effort was launched after that to bring drug use under control. It is still very much under way and has lasted much longer than an earlier movement to control another substance—alcohol.

Alcohol was prohibited by the Eighteenth Amendment to the Constitution, ratified in 1919. According to the U.S. Department of Justice's Bureau of Justice Statistics (BJS) ("Homicide Rates, 1900-2000"), during Prohibition (1920-33) criminal activity peaked and the homicide rate reached record levels (9.7 murders per one hundred thousand people in 1933) that were not surpassed again until 1974 (about ten per one hundred thousand), when the war on drugs was underway. (See Figure 5.1.) The rate remained high throughout the 1980s and early 1990s before beginning a decline. Alcohol was legalized again with the passage of the Twenty-first Amendment to the Constitution, ratified in 1933. Tobacco, another legal substance, has also captured public interest. Efforts are underway to persuade people to give up smoking, but tobacco remains a legal product that may be purchased by adults.

Public efforts to influence or prohibit the use of substances that change the mood or enhance attention have had mixed results. Prohibition came to an end because of massive public disobedience. Data from the National Survey on Drug Use and Health (formerly the National Household Survey on Drug Abuse) conducted by the Substance Abuse and Mental Health Administration (SAMHSA), an agency of the U.S. Department of Health and Human Services, suggests a similar public response to laws that prohibit use of drugs. In 2003, 46.4% of people aged twelve or older, more than 110 million individuals, had used drugs at some time in their lives. About thirty-five million had done so in the last twelve months, and nearly 19.5 million had used drugs in the past thirty days. (See Table 3.4 and Table 3.3 in Chapter 3.) The percentage of lifetime users increased during the twenty-five preceding years; it was 31% of the twelve-and-older population in 1979, according to SAMHSA.

In some ways, efforts to control the use of substances appear to be inconsistent with direct harm caused. Tobacco and alcohol, both legal substances, cause many more deaths per year than drugs. The Centers for Disease Control and Prevention estimated during the 1990s that 430,000 people die yearly as a result of smoking cigarettes, and 81,000 die as a result of drinking alcohol, not including motor vehicle deaths caused by drunken driving. Drug use produces 14,000 deaths a year. The vast majority of these fatalities occur, according to SAMHSA mortality data, as a result of heroin, cocaine, and synthetic drug use, with or without the involvement of alcohol. Marijuana, which is preponderantly the drug used by the majority of those classified as drug users, causes few fatalities, and virtually none by itself (Mortality Data from the Drug Abuse Warning Network 2002, SAMHSA, January 2004). Such facts are behind efforts to legalize marijuana.


Despite the fact that drug use accounts for few fatalities per year, there is evidence to support a strong relationship between drug use and criminal behavior. There are two types of drug offenders: those who pass through the judicial system because they have violated drug laws and those who enter the system because they have committed a crime while under the influence of drugs or in order to get money to pay for drugs. These two themes frequently overlap.

There are usually three reasons given for the correlation between drugs and crime:

  • Drugs may reduce inhibitions or stimulate aggression and interfere with the ability to earn legitimate income.
  • Persons who develop a dependence on an illegal drug need a substantial income to pay for them and may commit crimes in order to fund their habit.
  • Drug trafficking may lead to such crimes as extortion, aggravated assault, and homicide. Table 5.1 shows the number of homicides related to drugs from 1987 to 2003.

In Adult Patterns of Criminal Behavior (Washington, DC: National Institute of Justice, 1996), University of Nebraska researchers Julie Horney, D. Wayne Osgood, and Ineke Haen Marshall studied 658 newly convicted male prisoners sentenced to the Nebraska Department of Correctional Services during 1989-90. The researchers wanted to determine if changes in life circumstances, such as being unemployed or living with a wife or girl-friend, influenced their criminal behavior. Among their conclusions, they found that "use of illegal drugs was related to all four measures of offending (any crime, property crime, assault, and drug crime). For example, during months of drug use, the odds of committing a

YearNumber of homicidesPercent drug related

property crime increased by 54%; the odds of committing an assault increased by over 100%. Overall, illegal drug use increased the odds of committing any crime sixfold."

According to the BJS, in Drug Use, Testing, and Treatment in Jails, published in May 2000, in 1998 an estimated 138,000 convicted jail inmates (36%) were under the influence of drugs at the time of the offense. An estimated 61,000 convicted jail inmates (13.3%) said they had committed their offense to get money for drugs. Of convicted property and drug offenders, about one in four had committed their crimes to get money for drugs.

The U.S. Department of Justice, using data from the Uniform Crime Reporting Program (UCR) of the Federal Bureau of Investigation (FBI), reported that in 2003, 4.6% of the 14,408 homicides in which circumstances were known were narcotics related, including those committed during drug trafficking or manufacturing. (See Table 5.1.)


As estimated by the FBI in its annual Crime in the United States report, nearly 13.7 million total arrests took place in 2003; about 1.7 million people, or about 12%, were arrested for drug abuse violations. (See Table 5.2; Table 5.3 breaks these arrests down by region of the country.) Driving under the influence accounted 1.4 million (or 10.5%) of total arrests; drunkenness, 548,616 (4%); and liquor law violations, 612,079 (4.5%). These 4.3 million arrests accounted for 31% of all arrests. In addition, arrests for disorderly conduct (639,371), vagrancy (28,948), and vandalism (273,431) often involved drug and alcohol abuse.

Murder and nonnegligent manslaughter13,190
Forcible rape26,350
Aggravated assault449,933
Motor vehicle theft152,934
Violent crimeb597,026
Property crimeb1,605,127
Other assaults1,246,698
Forgery and counterfeiting111,823
Stolen property; buying, receiving, possessing126,775
Weapons; carrying, possessing, etc.167,972
Prostitution and commercialized vice75,190
Sex offenses (except forcible rape and prostitution)91,546
Drug abuse violations1,678,192
Offenses against the family and children136,034
Driving under the influence1,448,148
Liquor laws612,079
Disorderly conduct639,371
All other offenses3,665,543
Curfew and loitering law violations136,461
aDoes not include suspicion.
bViolent crimes are offenses of murder, forcible rape, robbery, and aggravated assault. Property crimes are offenses of burglary, larceny-theft, motor vehicle theft, and arson.

According to the FBI, total arrests were about 0.5% lower than two years earlier in 2001, but drug arrests rose nearly 6% over that two-year span. They also increased as a percentage of all arrests, from 11.6% in 2001 to 12.3% in 2003. In 2003 more people were arrested for drug and alcohol violations than were arrested for murder, rape, robbery, aggravated assault, burglary, theft, car theft, arson, forgery, fraud, embezzlement, prostitution and vice, gambling, offenses against family and children (usually domestic violence), and curfew/loitering-law violations combined.

Data for these two years are the continuation of a longer trend. (See Figure 5.2.) The official crime rate, which was climbing through 1989, began to decline slowly, if not uniformly, after that year. Drug arrests also dropped at first, but then resumed their upward direction between 1991 and 1992 and have been rising since that time.


The National Institute of Justice annually publishes the Arrestee Drug Abuse Monitoring (ADAM) report, formerly called Drug Use Forecasting (DUF). The latest

Drug abuse violationsUnited States totalNortheastMidwestSouthWest
    Heroin or cocaine and their derivatives8.817.
    Synthetic or manufactured drugs1.
    Other dangerous nonnarcotic drugs3.
    Heroin or cocaine and their derivatives21.524.311.422.323.8
    Synthetic or manufactured drugs3.
    Other dangerous nonnarcotic drugs16.65.714.76.931.5
*Because of rounding, the percentages may not add to 100.0.

report contains information up to 2000 and was published in 2003 (http://www.ojp.usdoj.gov/nij/adam/welcome.html). In 2000 the report surveyed arrestees in thirty-five urban sites about drug use in the past year and conducted urinalyses to determine if ten different drugs had been used recently (each drug has a different number of days in which it can still be detected by urinalysis). ADAM reported on drugs in six categories: cocaine (crack or powder), marijuana, opiates, metham-phetamine, phencyclidine (PCP), and "any drug," which could include the remainder of the other five drugs. The 2000 report states that "people who come to the attention of the criminal justice system by being arrested are more often than not users of drugs and/or alcohol." To support this claim, in half of the ADAM sites in 2000, urinalysis showed that more than 64% of adult male arrestees had used at least one of five drugs: marijuana, cocaine, opiates, methamphetamine, or PCP. Use ranged from a low of 52% of arrestees in Anchorage, Alaska, to a high of 80% in New York, but was consistently a majority of those arrested. In half the sites, at least 21% tested positive for more than one drug, with a low of 10% in Anchorage and Albany, New York, and a high of 34% in Chicago.

Though data on females was more limited, ADAM found that in half of the twenty-nine sites where data on females was analyzed, more than 63% of women had used one of the five drugs mentioned above. The rates ranged from a low of 31% in Laredo, Texas, to 80% in Chicago. For many locations and drugs, female arrestees were more likely to have used drugs than male arrestees. Two factors may explain the higher rates for women: fewer females are arrested, which may raise the rates; and females are more likely than males to be arrested for offenses that carry a high likelihood of drug use, such as prostitution.

Only nine ADAM sites survey and conduct urinalysis on juveniles (and only eight have results for female juveniles), but there were similarities at those sites, with at least 41% of juvenile arrestees at all sites testing positive for drug use. The highest use rate was 55% in Phoenix, Arizona. Consistent with the SAMHSA survey, marijuana was the most commonly used drug among juveniles. FBI data showed that juvenile offenses decreased 15% between 1996 and 2000, but that arrests for driving under the influence, liquor law violations, and curfew violations rose (to 36, 31, and 9% respectively). The charge faced by most juveniles in 2000 was a "condition of release" violation (such as probation), with the most common offense being larceny-theft, followed by drug possession.

Marijuana Use

Marijuana use among arrestees is high, according to the ADAM report; often one-third or more report using the drug within days of their arrest. In general, men were more likely than women to test positive for marijuana, and younger arrestees (fifteen to twenty-five years of age) were much more likely to test positive than older respondents.

Alcohol was the substance most frequently used with marijuana. However, respondents also reported using marijuana with powder cocaine, crack, methamphetamine, and PCP.

Overall, almost 41% of all adult males tested positive for marijuana in 2000, according to the ADAM report, whereas 26.7% of females tested positive. The proportion of adult male respondents who tested positive for marijuana use ranged from a high of 57% in Oklahoma City, Oklahoma, to a low of 28.5% in Laredo, Texas. The proportion of female arrestees with marijuana-positive tests ranged from 44.7% in Oklahoma City to 17.2% in Laredo.

Cocaine Use

According to the 2000 ADAM report, almost one-third of all adult arrestees tested positive for cocaine. Female arrestees were more likely to have used cocaine than male arrestees (30.9% of males versus 33.1% of females). Based on self-reports, female arrestees were more likely than male arrestees to use crack cocaine. Drug testing cannot yet distinguish crack from powder cocaine, so researchers must rely on self-reported data to track trends in crack use.

In 2000 the percentage of adult male arrestees who tested positive for recent cocaine use ranged from a high of 48.8% in New York to a low of 11% in Des Moines, Iowa. Male cocaine users reported recent crack use twice as frequently as they reported recent powder-cocaine use.

The percentage of adult female arrestees who tested positive for recent cocaine use ranged from a high of 59.2% in New York City to a low of 7.8% in San Jose. Participation in the crack cocaine market was reported by a higher percentage of females than males (23% of females and 15% of males). ADAM data suggest significant crack use among female arrestees in urban areas.

Opiate Use

The use of opiates—including heroin, codeine, and morphine—is relatively low compared with that of cocaine and marijuana use. Though current screening methods cannot distinguish heroin from other opiates, preliminary results from another project indicate that more than 97% of ADAM arrestees who tested positive for opiates were heroin users. Older arrestees used opiates at higher rates than did younger arrestees. In a few locations, however, the youngest groups were more likely to test positive. There has been recent concern that opiate use may increase among the young as the price of heroin decreases and purity increases.

Female arrestees were more likely than male arrestees to test positive for opiate use (7.2 versus 6.5%). Opiate-positive rates of adult male arrestees ranged from a high of 27% in Chicago to a low of 1.9% in the Charlotte metro area of North Carolina, while among adult female respondents, opiate-positive rates ranged from 40% in Chicago to 1.3% in Omaha, Nebraska.

Methamphetamine Use

Methamphetamine prevalence varied wildly by geographical site. In more than half of the thirty-five sites where ADAM tested adult male arrestees, prevalence rates were less than 2%, while they exceeded 20% in six sites. Sites in the West and Northwest had considerably higher rates of methamphetamine use than those in the Northeast, South, or Midwest. Surprisingly, despite reports of active methamphetamine production in, and trafficking from, Mexico, most sites along the Southwest border and in Texas showed considerably lower levels of methamphetamine use than sites in the West and Northwest.

A greater proportion of female arrestees than male arrestees tested positive for methamphetamine in most sites (1.6 versus 3%). Methamphetamine-positive rates for male and female arrestees were 0% at several sites, but Honolulu, Hawaii, had the highest rate of methamphetamine use for both male and female arrestees, at 35.9% and 47.2%, respectively.


As mentioned above, the FBI's UCR report estimated that there were 1.7 million arrests for drug violations in 2003. Drug violations are defined by the FBI as "state and/or local offenses relating to the unlawful possession, sale, use, growing, manufacturing, and making of narcotic drugs including opium or cocaine and their derivatives, marijuana, synthetic narcotics, and dangerous non-narcotic drugs such as barbiturates."

A history of drug arrests is presented in Figure 5.3; Figure 5.4 separates drug arrests of adults from those of juveniles. Juveniles are defined in most jurisdictions as those younger than eighteen. Drug arrests increased during the Nixon-Ford (1973-76), Reagan (1981-88), and Clinton (1993-2000) administrations and dropped during the Carter (1977-80) and the George H. W. Bush (1989-92) administrations. Growth in drug arrests is attributable largely to the arrest of adults. In 1970 juveniles represented 22.4% of those arrested. That percentage peaked in 1973 at 26.3%, a level not reached since then. According to the Bureau of Justice Statistics, 1.48 million adults and 201,400 juveniles were arrested for drug violations in 2003.

Total drug arrests nearly tripled between 1980 and 2003, from 580,900 to 1.68 million, according to the Bureau of Justice Statistics. Adult arrests alone more than tripled, while juvenile arrests increased only slightly, and have leveled off since the mid-1990s.

Possession versus Sale

Most of those arrested for drug offenses are charged with possession rather than with the sale or manufacture of drugs. (See Figure 5.5.) According to FBI data as reported by the Bureau of Justice Statistics, in 1982 four-fifths (80%) of those arrested for drug offenses were held for carrying some kind of drug; that proportion was slightly higher in 2003. This percentage had been lower in the middle of the 1982-2003 period, having declined gradually from 80% in 1980 to 67% in 1991. The ratio began to increase again, eventually matching the 1980 level in 2001. Arrests for possession have grown at an annual rate slightly higher than arrests for sales/manufacture in the entire period, 4.6 versus 4.4% a year, but if measured from 1989 forward, arrests for sales/manufacture actually declined at the rate of 2.9% whereas arrests for possession increased 2.4% a year.

Arrest Trends by Drug Category

In 1982, 71% of all drug arrests were for the possession or sale of marijuana, according to the BJS. By 2003 marijuana-related arrests were just 45% of the total, but were still the largest number overall—about three-quarters of a million arrests out of 1.59 million. (See Figure 5.6.) Between 1982 and 2003 arrests linked to drugs fluctuated somewhat. In 1989, for instance, 54% of arrests were related to heroin/cocaine and only 29% to marijuana, police or public interest in the one rising sharply, while dropping in the other. But marijuana became important again, topping arrests once more in 1996. During the entire period shown in the figure (1982-2003), heroin/cocaine arrests increased at an annual rate of 9.8%; "other" drugs at the rate of 6.7% a year; synthetic drugs at 4.7%; and marijuana at 2.1% a year.

Synthetics, as the FBI defines the category, include all manufactured narcotic drugs, whether made for drug users exclusively or originally for medical purposes. The "other" category includes dangerous non-narcotic drugs like barbiturates and benzedrine.

Arrest records at the national level are a mix of use patterns and enforcement strategies that may be quite different from city to city; it is impossible to discern which drives which—use patterns resulting in arrests or police initiatives targeting specific user/seller groups. Supply systems, pricing, and demographics of drug use are highly variable; police tactics and approaches are both different and change over time. Data for the 1982-2003 period shown indicate great interest in heroin/cocaine peaking in 1989 and leveling off thereafter; a decreasing emphasis on marijuana until 1991, followed by a steady increase; and a persistent interest in non-narcotic drugs labeled "other" by the FBI.

Alcohol and Drug Trends

According to the UCR program of the FBI, arrest trends from 1984-2003 indicate that alcohol-related offenses, while remaining dominant, dropped, while drug-related offenses grew in importance. In 1984, 3.4 million people were arrested for alcohol-related offenses (drunkenness, driving under the influence, drug law violations); that year 708,400 were arrested for drug violations. Nineteen years later, in 2003, there were 2.6 million alcohol-related arrests and 1.7 million drug arrests. Alcohol consumption has been dropping, according to the National Institute on Alcohol Abuse and Alcoholism, an element of the U.S. Department of Health and Human Services. Per capita

Total arrestsPercenta
Offense chargedTotalWhiteBlackAmerican Indian or Alaskan NativeAsian or Pacific IslanderTotalWhiteBlackAmerican Indian or Alaskan NativeAsian or Pacific Islander
Drug abuse violations1,101,547728,797357,7256,8488,177100.
aBecause of rounding, percents may not add to total.

consumption of all alcoholic beverages among those aged fourteen and older decreased from 2.65 gallons in 1984 to 2.19 gallons in 1998. Consumption of spirits fell from 0.94 gallons to 0.63 gallons (Apparent Per Capita Alcohol Consumption, Washington, DC: NIAAA, December 2000). Consumption of marijuana, heroin, and methamphetamines has increased in tonnage based on data from the Office of National Drug Control Policy (to be discussed later); physical quantities of cocaine have decreased. But while alcohol is legal, drugs are not.

Arrests and Race

Enforcing the official public policy on drugs has an important impact on the nation's justice system—local policing, the courts, and the state and federal corrections systems. A relatively small percentage of total users are arrested, but at increasing rates. Sentencing policies have changed to require mandatory incarceration of those who possess, not just those who sell, drugs. Prison populations have swollen as a consequence, putting pressure on prison capacities. Arrest rates, sentencing, and incar-ceration have been different for whites and African-Americans.

Most of those arrested for drug abuse violations are white. Of the 1.1 million persons identified by race in 2002 (records do not always capture the race/ethnicity category), 728,797 were white, accounting for 66.2% of all arrests. (See Table 5.4.) That year 357,725 African-Americans were arrested according to FBI data, 32.5% of the total; Asians/Pacific Islanders made up 0.7% of arrestees; and American Indians/Alaska Natives, 0.5%. According to the BJS, since 1993 arrests of African-Americans were down, whereas arrests of all the other racial categories rose. The most rapid growth in the 1993-2002 period was experienced by Asians and American Indians. Arrests of whites grew at a 2.9% rate; African-American arrests declined at the rate of 0.7% yearly.

When arrest rates are normalized by population—expressed as a ratio to the racial group as a whole—African-Americans are arrested with greater frequency than any other group. In 2000, 390 whites were arrested for each one hundred thousand people in the eighteen-and-older population of whites. The corresponding rate for African-Americans was 1,460, for Asians it was 93, and for American Indians/Alaska Natives it was 342. An African-American person was nearly four times as likely to be arrested as a white person, more than fifteen times as likely as an Asian, and more than four times as likely to be arrested as an American Indian. Ratios for 1993 were even higher. One possible explanation for this is that law enforcement efforts are concentrated in areas of predominantly African-American settlement, not because African-Americans used drugs more than the other racial groups.

In 2003, 49.2% of whites aged twelve and over had used drugs in their lifetime, compared with 44.6% of African-Americans, 25.6% of Asians, and 62.4% of American Indians. (See Table 3.5 in Chapter 3.) Drug use in the past month was slightly lower for whites (8.3%) than African-Americans (8.7%), according to data obtained by SAMHSA in their 2003 National Survey on Drug Use and Health (NSDUH). The highest rates of past-month and past-year drug use was reported by American Indians in 2003, but their arrests rates were lower than those for whites. Use of drugs by those of Hispanic origin are shown, but arrest data are not broken down for Hispanics in the FBI statistics.


According to SAMHSA data, in 2003 nearly thirty-five million people aged twelve and older had used drugs in the past year. (See Table 3.3 in Chapter 3.) That year, as shown in Table 5.2, almost 1.7 million people were arrested for drug abuse violations, equivalent to about 5% of all estimated past-year users. According to data from the BJS, of the just-over one million people convicted by state courts for felonies in 2002, 32% were convicted for drug felonies (State Court Sentencing of Convicted Felons, 2002, Washington, DC: BJS, April

OffenseFelony convictionIncarcerationsPrison sentences
Aggravated assault231710
Motor vehicle theft18147
Drug trafficking805434
*Includes nonnegligent manslaughter.
Most serious conviction offenseMean state prison sentenceEstimated time to be served*
Sexual assault10064
Aggravated assault5436
Drug offenses
*Derived by multiplying the percentage of sentence to be served by the mean sentence imposed.

2005 http://www.ojp.usdoj.gov/bjs/dcf/contents.htm). Of these, nearly two-thirds were convicted for trafficking—85% were males and nearly half were in their twenties. The number of those convicted of possession was less than 1% of the total number of users of drugs. For every one hundred arrests for drug trafficking, eighty of those arrestees were convicted of a felony in state courts, and thirty-four were sentenced to state prison. (See Table 5.5.) Table 5.6 shows the average length of those sentences.

Convictions and Race

Minorities represent a significant and growing portion of American prisoners, with the growth rate of incarcerations due to drug offenses from 1995-2001 committed by African-Americans at 23%, opposed to that of whites at 18%. (See Table 5.7.) According to BJS data, of the 266,465 adults arrested for drug trafficking in 2002, 212,810 were convicted. According to the BJS, of those convicted, 85% were male, 51% were white, and 47% were African-American. In absolute numbers, more whites are arrested and convicted for drug violations than African-Americans, but African-Americans are much more likely to be arrested and convicted in proportion to their representation in the population.

Once convicted for drug offenses, more African-Americans, on average, are incarcerated than whites, and more whites on average receive milder jail sentences (less than a year) than blacks or get probation or split sentences, as shown in Table 5.8. Of all whites convicted of drug offenses in 2000, 63% were incarcerated, versus 73% of all African-Americans convicted of drug offenses. Among convicted whites, 30% went to prison (sentences of a year or longer), and among African-Americans this figure was 48%. About one-third (32%) of whites got the milder jail sentence, versus 25% of African-Americans. More whites received nonincarceration sentences (37%) than African-Americans (28%). Similarly, more whites received probation (32%) than African-Americans (24%). The "other" category shown in the table includes split sentences and other disposition of the cases.


Sentence lengths for all offenses moved upward in U.S. district courts for almost half a century, from 1945 to 1991. Average sentence lengths for drug offenses also showed an upward trend during this time, except for a few slight dips over the years. (See Table 5.9.) A slight downward trend in sentence lengths for drug offenses took place during the 1990s through 2001, followed by an upturn in 2002 and 2003.

Sentence lengths, however, do not fully convey the picture. The time actually served for an offense is a better indicator of the actual "price" society extracts for an offense. Thus, for instance, a person sentenced to five years who serves 60% of his sentence and is then paroled serves as long as a person sentenced to four years who serves 75% of her sentence. In both cases, time served will be three years. Public perceptions in the late 1970s that felons were sentenced only to walk free after doing a brief stint in prison culminated in the "truth-in-sentencing" movement, an attempt at the state and federal levels to reform sentencing practices. The State of Washington passed the first truth-in-sentencing statute in 1984. Congress established the U.S. Sentencing Commission in the same year with the purpose of setting mandatory sentence lengths. The consequence of these actions (42 states and the District of Columbia have passed truth-in-sentencing laws since 1984) was an increase in

Increase, 1995-2001Percent of totalIncrease, 1995-2001Percent of totalIncrease, 1995-2001Percent of total
Property3,00030− 100
Drug16,2001819,10023− 1,400
Drug offenses1006563333032323537323236
Drug offenses1007373514823252728242423
Note: Detail may not sum to total because of rounding. Racial categories include Hispanics. Shaded areas are those where one racial group is less represented than the other.

time served even as, in some areas, the average length of the formal sentences grew shorter.

The effects of truth-in-sentencing at the state level are illustrated using data for 1990 and 1999 for all categories of offenses. (See Table 5.10.) The average sentence length for all offenses went down from sixty-nine months in 1990 to sixty-five months in 1999. Total time served went up from twenty-eight months to thirty-four months, a consequence of the fact that the percent of sentence served increased from 38% in 1990 to 48.7% in 1999.

In the drug offense category, state prison sentence length for possession dropped from sixty-one to fifty-six months from 1990 to 1999, but time served increased from eighteen to twenty-five months. Sentence length for drug trafficking increased from sixty to sixty-four months; actual time served went up from twenty-two to twenty-nine months. As these data show, there remained in this period a fairly wide gap between the average sentence imposed and the actual time served, but time served was up. Under federal sentencing guidelines, persons sentenced are required to serve 85% of the imposed sentence. At the state level in 1999, the percent of time served was well below 85%: 42.4% for possession, and 42% for trafficking. Those selling drugs, in effect, served slightly less of their imposed sentences than those caught carrying drugs, though percentage of time served was up from 1990, when those convicted of possession served only 29% and those convicted of trafficking served only 34.8%.


According to the BJS, on December 31, 2003, there were 2,085,620 prisoners held in federal or state prisons or in local jails. The total had increased 2.6% from year-end 2002. Of those held in state prisons in 2003, about one in five were in prison for drug offenses. Drug offenders outnumbered those held for burglary, larceny, auto theft, fraud, and all other property crimes. Between 1995 and 2001, 15% of the total growth in the number of prisoners was attributable to the increasing number of drug offenders, while 63% was attributable to violent offenders.

Prisoners incarcerated for drug violations have become the second-most-populous category over a period of twenty years at the state level and the largest group in the federal prison system, as illustrated in Figure 5.7 and Table 5.11. Persons incarcerated in state prison systems for drug offenses increased more than 1,000% between 1980 and 2001. Incarcerations for public order offenses, which include weapons violations grew nearly as fast. In the federal system, drug offenders make up more than half the prison population. Here, the number of drug offense cases handled quadrupled between 1980 and 2000.

According to the BJS, persons in prison for drug offenses were 6.5% of the state prison population in 1980. By 1990 they had topped 20% of the prison population and have remained at that level since then, reaching

Type of sentence
Regular sentencesaAverage sentence to imprisonment (in months)dAverage sentence to probation (in months)e
TotalTotal regular1 through 12 months13 through 35 months36 through 60 monthsOver 60 monthsLife sentencesOtherbProbationFine and otherc
Type of sentence
Regular sentencesaAverage sentence to imprisonment (in months)dAverage sentence to probation (in months)e
TotalTotal regular1 through 12 months13 through 35 months36 through 60 monthsOver 60 monthsLife sentencesotherbProbationFine and otherc
Note: Data for 1945-91 are reported for the 12-month period ending June 30.Beginning in 1992, data are reported for the federal fiscal year, which is the 12-month period ending September 30.
aIncludes sentences of more than 6 months that are to be followed by a term of probation (mixed sentences). Beginning in 1991, includes sentences of at least 1 month that may be followed by a term of probation.
bFrom 1978-88, "other" includes split sentences, indeterminate sentences, and Youth Corrections Act and youthful offender sentences. In 1989 and 1990, the category includes split sentences and indeterminate sentences. Beginning in 1991, "other" includes deportation, suspended and sealed sentences, imprisonment of 4 days or less, and no sentence.
cIncludes supervised release, probation of 4 days or less, suspended sentences, sealed sentences, and no sentence.
dFrom 1978-90, split sentences, Youth Corrections Act and youthful offender sentences, and life sentences are not included in computing average sentence. Beginning in 1991, life sentences, death sentences, deportation, suspended and sealed sentences, imprisonment of 4 days or less, and no sentence also are not included in computing average sentence.
eFrom 1986-90, split sentences, indeterminate sentences, and Youth Corrections Act and youthful offender sentences are not included in computing average sentence. Beginning in 1991, supervised release, probation of 4 days or less, suspended sentences, sealed sentences, and no sentence also are not included in computing the average sentence.
Mean time served in—
Mean sentence lengthaJailbPrisonTotal time servedcPercent of sentence servedd
    All offenses69 mo65 mo6 mo5 mo22 mo29 mo28 mo34 mo38.0%48.7%
Violent offenses99 mo87 mo7 mo6 mo39 mo45 mo46 mo51 mo43.8%55.0%
    Other sexual assault7776563042364743.857.0
Property offenses65 mo58 mo6 mo5 mo18 mo25 mo24 mo29 mo34.4%45.6%
    Motor vehicle theft5644751320202533.152.5
Drug offenses57 mo59 mo6 mo5 mo14 mo22 mo20 mo27 mo32.9%42.8%
Public-order offenses40 mo42 mo5 mo4 mo14 mo19 mo18 mo23 mo42.6%51.1%
Note: Based on prisoners with a sentence of more than 1 year who were released for the first time on the current sentence. Excludes prisoners released from prison by escape, death, transfer, appeal, or detainer.
a Maximum sentence length for the most serious offense. Excludes sentences of life, life without parole, life plus additional years, and death.
bTime served in jail and credited toward the current sentence.
cBased on time served in jail and in prison. Detail may not add to total because of rounding.
dBased on total sentence length (not shown) for all consecutive sentences.
eIncludes nonnegligent manslaughter.

a peak of 21.8% in 1990, dropping slightly to 20.9% in 2000. Data for federal cases handled show that drug-related cases were already fairly high, 18.2%, in 1980. They more than doubled to 36.9% by 2000.

A more recent look at federal prisoners shows that as of March 2005 the number of drug offenders held in federal prison had grown to 88,960, or 53.8% of the total federal inmate population, according to data from the Bureau of Prisons. (See Table 5.11.)

The much larger state prison population of drug offenders (246,100 individuals in 2001) were overwhelmingly male, 90.2%. The majority of these prisoners were African-American, about a quarter were white, and nearly one fifth were Hispanic, according to BJS statistics.

Drug offenses:88,960(53.8%)
Weapons, explosives, arson:21,475(13.0%)
Burglary, larceny, property offenses:6,784(4.1%)
Extortion, fraud, bribery:6,856(4.1%)
Homicide, aggravated assault, and kidnapping offenses:5,326(3.2%)
Sex offenses:1,732(1.0%)
Banking and Insurance, counterfeit, embezzlement:1,013(0.6%)
Courts or corrections:709(0.4%)
Continuing criminal enterprise:603(0.4%)
National security:103(0.1%)

Crowded Prisons and Growing Costs

State prisons have been operating at 100% of capacity for several years, and federal prisons are "over-booked." In 2001 the statistics were much the same; state prisons operated at 101% of capacity and federal prisons continued to operate at 131% of capacity. Pressures on correctional facilities are the result of growing rates of drug arrests that result in felony convictions combined with truth-in-sentencing policies that cause actual time served to increase.

According to the BJS (Sourcebook of Criminal Justice Statistics 2001, Washington, DC: BJS, 2002), state expenditures on corrections were $4.55 billion in 1980 at a time when persons serving time for drug offenses were 6.5% of all state prisoners. In 1980, therefore, about $293 million was used to house, hold, guard, feed, clothe, and to provide medical care for drug-law offending prisoners. By 2001, costs of state corrections had risen to $35.8 billion. Drug offenders were nearly one quarter of state prison populations at this time, meaning that nearly $8.9 billion was spent to imprison them.