Stunt Z 1998

Race, Class, and Drugs
Author(s): William J. Stuntz

Source: Columbia Law Review, Vol. 98, No. 7 (Nov., 1998), pp. 1795-1842
Published by: Columbia Law Review Association, Inc.
Stable URL: http://www.jstor.org/stable/1123466
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ESSAY
RACE, CLASS, AND DRUGS
William J. Stuntz*
Urban crack markets have received more police attention than mar?
kets for cocaine powder, and crack buyers and sellers have received har-
sher punishments than powder buyers and sellers. Crack defendants are
largely black; powder defendants are not. Some say this divide is simply
racist. Others say the system actually helps black communities by concen-
trating on black drug crime.
In this Essay, Professor Stuntz argues that neither position is cor?
rect. The recent focus on crack, he claims, has less to do with race than
with class. The market for cocaine, like many other markets, tends to
segment into upscale and downscale markets. Downscale markets tend
to be much easier for the police to penetrate than upscale markets. In
addition, the social harms from consensual crime tend to be concentrated
where the downscale markets are?in poor urban neighborhoods. As a
result, police and prosecutors tend to focus their attention not on drug
crime generally, but on certain kinds of drug crime in certain kinds of
neighborhoods. This enforcement strategy, in turn, tends naturally to
"
produce racial or ethnic "tilts, since poor urban neighborhoods are so
often segregated along racial or ethnic lines. This process is not new:
Much the same thing happened in the way police attacked prostitution
in the late 1800s and alcohol in the 1920s.
Though this kind of enforcement stragegy is understandable, Stuntz
argues that it is likely tofail. Differential enforcement breeds resentment,
which undermines the law's normative force. To succeed, drug enforce?
ment needs to become more self-consciously egalitarian.
It is hardly news that American criminal justice is racially tilted.

Blacks constitute thirteen percent of America's population but more than
half of its 1.7 million prisoners.1 Nor is it news that this racial tilt flows
partly from drug enforcement patterns and drug sentencing practices: As
Michael Tonry has shown, the legal system's crusade against crack signifi-
* Class of 1962 Professor and Horace W. Goldsmith Research Professor, University of

Virginia School of Law. I thank Vince Blasi, Anne Coughlin, Kim Forde-Mazrui, Pam
Karlan, Michael Klarman, Daryl Levinson, Richard McAdams, Tracey Meares, Eric Posner,
Dan Richman, Elizabeth Scott, Mike Seidman, and Steve Thel for helpful comments on
earlier drafts. I also thank participants in workshops at the University of Chicago,
Fordham University, and University of Pennsylvania law schools, as well as participants in
the 1997 Virginia Constitutional Law Workshop, for many useful suggestions.
1. As of June 1997, the number of inmates in America's prisons and jails was
estimated at 1,725,842. See Darrell K. Gilliard 8c Allen J. Beck, Prison and Jail Inmates at
Midyear 1997, Bureau Just. Stat. Bull., Jan. 1998, at 1. A study reported in early 1997 found
that, nationwide, 51% of prisoners were black. See Fox Butterfield, Many Black Men
Barred From Voting, N.Y. Times, Jan. 30, 1997, at A12.
1795
1796 COLUMBIA LAW REVIEW [Vol. 98:1795
cantly increased racial disproportions that had been largely stable enter-
ing the 1980s.2
These two familiar points lead to several hard questions. The first is
obvious: Is this tilt the product of misbehavior by black defendants, or by
the system? The temptation is to say the latter. The system aggressively
targets and severely punishes a kind of drug trafficking that more blacks
than whites engage in, which sounds like discrimination against black sus?
pects. But as Randall Kennedy and Kate Stith have shown, that argument
may be backward.3 The crack trade destroys not only those who engage
in it but the neighborhoods in which it takes place as well. Those neigh-
borhoods are filled with black citizens who do not buy and sell crack,
citizens who may benefit from sentencing and enforcement policies that
target crack relative to other drugs. And while targeting the crack trade
has obvious costs?in money, in time and manpower the police could
allocate elsewhere?those costs are borne by the whole society, not simply
by the communities where the crack trade flourishes. What seems like
discrimination against poor black communities may actually be a subsidy
of those same communities, a redistribution of the services of the crimi?
nal justice system in their favor.
This is a powerful argument. But it poses its own hard question. If
black citizens are the beneficiaries ofthe system's crusade against crack?
if the criminal justice system has, in effect, engaged in a kind of large-
scale affirmative action for the benefit of urban black neighborhoods?
why do those citizens feel as negatively about the system as they do?
While survey data suggest, as Kennedy's and Stith's argument would pre-
2. See Michael Tonry, Malign Neglect?Race, Crime, and Punishment in America

58-66, 105-16 (1995). Between 1960 and 1970, the black proportion ofthe prison inmate
population rose from 37% to 41%, with a larger rise?from 35% to 41%?in the black
proportion of the jail population. See Margaret Werner Cahalan, U.S. Dep't of Just.,
Historical Corrections Statistics in the United States, 1850-1984, at 65, 91 (Bureau of
Justice Statistics, 1986). That proportion more or less stabilized in the 1970s, when the
percentage of black prisoners rose from 41% to 44% but the percentage of black jail
inmates declined from 41% to 40%. See id. The disproportion began to rise again in the
early 1980s, accelerating later in the decade as the number of crack prosecutions grew. By
1995, the black proportion of the inmate population had risen to 49.4%. See Bureau of
Justice Statistics, Correctional Populations in the United States?1995, at 7 tbl.1.6
[hereinafter Correctional Populations in the United States]. As the preceding footnote
indicates, the percentage has continued to rise since then.
Tonry's discussion emphasizes the role differential enforcement played in these
statistics; differential sentencing has also had a significant effect. Sentencing differences
between crack and cocaine powder are common, and at least at the federal level, they are
severe: Sentences in crack cases "average three to eight times longer than sentences for
comparable powder offenders." United States v. Armstrong, 517 U.S. 456, 478 (1996)
(Stevens, J., dissenting) (citing U.S. Sentencing Comm'n, Special Report to Congress:
Cocaine and Federal Sentencing Policy 145 (1995)).
3. See Randall Kennedy, The State, Criminal Law, and Racial Discrimination: A
Comment, 107 Harv. L. Rev. 1255, 1261-70 (1994); Kate Stith, The Government Interest in
Criminal Law: Whose Interest Is It, Anyway?, in Public Values in Constitutional Law 137,
153 (Stephen E. Gottlieb ed., 1993).
1998] RACE, CLASS, AND DRUGS 1797
dict, that a large majority of blacks oppose legalization of drugs,4 these

data tell only half the story, and it may be the less important half. As
Tracey Meares has shown, blacks are substantially more likely than whites
to combine opposition to drug legalization with opposition to "get tough"
law enforcement policies, and the gap between poorly educated blacks
and poorly educated whites is especially large.5 Other surveys show that
few blacks have confidence in the police or in the criminal justice system,
that blacks perceive a high level of racism in the system, and that these
perceptions have not improved over the past twenty years, a time when
drug enforcement has increasingly come to dominate the criminal justice
system.6 These perceptions could be groundless. Still, it seems strange
4. See, e.g., Bureau of Justice Statistics, U.S. Dep't of Justice, Sourcebook of Criminal
Justice Statistics?1996, at 178-79 tbl.2.89 (Kathleen Maguire 8c Ann L. Pastore eds., 1997)
[hereinafter 1996 Sourcebook] (showing 70% of non-whites opposed and only 22%
supported legalizing marijuana). Note that these data, like virtually all polling data on the
subject, measure respondents' attitudes toward legalization of marijuana, not toward
legalization of drugs in general or of "harder" drugs like cocaine or heroin. The reason
pollsters tend not to ask about hard drugs is the assumption, no doubt correct, that only a
very small percentage of respondents would support legalization. One wonders, though,
whether that very small percentage is heavily concentrated in black neighborhoods.
5. See Tracey L. Meares, Charting Race and Class Differences in Attitudes Toward
Drug Legalization and Law Enforcement: Lessons for Federal Criminal Law, 1 Buff. Crim.
L. Rev. 137, 145-46 (1997).
6. Blacks and whites alike lack confidence in the criminal justice system as a whole,
though the level of distrust is slighdy higher for blacks. In a 1996 survey, 22.4% of whites
and 20.0% of blacks reported having "a great deal" or "quite a lot" of confidence in the
system, while 32.8% of whites and 35.5% of blacks reported having "very littie" confidence.
1996 Sourcebook, supra note 4, at 118 tbl.2.10. When respondents were asked to define
their confidence in the court system, blacks were substantially more critical than whites?
82.9% of blacks versus 64.5% of whites had only "some" or "very littie" confidence in the
local courts. Id. at 124 tbl.2.15. A similar though slighdy smaller disparity appeared when
respondents were asked to rate their confidence in the prison system. See id. at 124
tbl.2.16.
With respect to the police, blacks are much more negative than whites. Again using
1996 figures, 63.0% of whites reported having "a great deal" or "quite a lot" of confidence
in the police; only 44.1% of blacks did so. Id. at 119 tbl.2.12. Thirty-seven percent of
whites reported having only "some" or "very littie" confidence in the police, compared with
55.8% of blacks who gave those responses. Id. These numbers are quite similar to the
responses given to a 1970 survey, in which respondents were asked whether or not they
approved of the way their local police did their job: Whites rated local police favorably by a
margin of 67%-31%; blacks rated local police unfavorably by a margin of 50%-43%. See
U.S. Dep't of Justice, Sourcebook of Criminal Justice Statistics?1974, at 189 tbl.2.48.
When asked to rate the honesty and ethical standards of police officers in a 1996 survey,
31% of blacks answered "low" or "very low," compared to only 8% of whites. 1996
Sourcebook, supra note 4, at 126 tbl.2.21. This disparity has actually grown over the past
two decades: A 1977 survey asking the same question found that 21% of non-whites and
11% of whites gave the police a "low" or "very low" rating on honesty and ethics. U.S.
Dep't of Justice, Sourcebook of Criminal Justice Statistics?1979, at 276 tbl.2.39.
When asked directiy whether the system is racist or discriminates against blacks,
roughly two-thirds of blacks consistendy say yes, and that percentage is fairly constant over
time. In 1977, 61% of blacks said the system discriminates against them in providing
protection from crime and 71% said the police discriminate against them. See id. at 276
for drug policy's greatest beneficiaries, if indeed they are beneficiaries, to

be the system's loudest critics.
Which leads to yet another hard question. Suppose black citizens'
suspicions are justified?suppose drug policy and enforcement over the
past generation have been to black communities not a boon but a source
of racial oppression. What could explain this surge of racism in the crim?
inal justice system? The timing is, to say the least, puzzling. Our genera?
tion has seen massive gains in black political power over big-city govern-
ments, and (not coincidentally) in black representation on urban police
forces. Meanwhile, white police officers (and white legislators, prosecu-
tors, and judges) are surely less racist as a class than they were twenty or
thirty years ago. A rise in systemic racism coincident with a decline in the
level of racism of those who populate the system seems strange, even
preposterous.
My goal in this essay is to try to untangle these knots, to sketch an
answer to the set of questions just posed. The claim, in a nutshell, is this:
Contemporary drug policy is not fundamentally racist, at least not in the
usual sense ofthe word "racist."7 The system's treatment of crack relative
to other drugs is a kind of paternalism that purports to favor rather than
harms black neighborhoods. But this paternalism is double-edged; it
sends the message that some neighborhoods (and some groups) are sub?
ject to different standards than others. Whether that message is racist or
not, it looks racist. And in this setting, appearances matter: Apparently
racist enforcement patterns tend to undermine the normative force of
the drug laws among targeted groups, to delegitimize the system in the
eyes of those whose behavior the system seeks to influence. The chief
victims of this process are the very people whose interests Kennedy and
Stith rightly emphasize?innocent citizens who live in high-crime neigh?
borhoods. Sadly, this problem may be growing worse even as the level of
racism in the system is declining?the system seems ever more racist even
as it is ever less so?because the problem does not depend on racism.
Indeed, were racism within the law enforcement community eradicated,
it is not clear that the problem would improve much.
tbl.2.40. In a 1995 Gallup poll, 66% of blacks labeled the criminal justice system racist.
See Paul Buder, Racially Based Jury Nullification: Black Power in the Criminal Justice
System, 105 Yale LJ. 677, 699 8c n.115 (1995) (citing sources). And in a 1997 Gallup poll,
72% of blacks stated that the criminal justice system treats blacks more harshly than whites.
See The Gallup Organization, Special Reports: Black/White Relations in the U.S. (June
10, 1997) <http://www.gallup.com/Special_Reports/black-white.htm> (on file with the
Columbia Law Review).
7. Racism means many things, and if a sufficiendy broad definition is used, it covers
everyone and everything. I mean something narrower and more conventional?either a
desire to inflict harm on a class of people because of their race, or indifference to their
interests because of their race. My point is that the race problem in drug enforcement
stems neither from active hostility nor indifference (though some decisionmakers no
doubt exhibit those attitudes), but from something much more complicated.
Theproblem is not new, and it begins not with race but with class.
Like a range of other crimes, past and present?prostitution, gambling,
alcohol in the 1920s?the drug trade consists of consensual transactions
that take place within organized sales and distribution networks. These
networks tend to segment by class. Upscale markets serve upscale cus?
tomers. Downscale markets serve mostly (but, importantly, not only)
downscale customers. The two nearly always have different distribution
systems, and often sell slightly different products. These divisions,
though common, are more or less stark for different illegal transactions
at different times; the rise of crack in the 1980s produced a class divide in
the cocaine market that was unusually visible, and perhaps unusually
large.
Though the crimes in these upscale and downscale markets are simi?
lar, lawmakers and especially law enforcers tend not to treat them the
same?a proposition that holds true not just for cocaine today, but for all
the crimes mentioned in the preceding paragraph as well. A variety of
factors push the system toward defining the relevant offenses more
harshly and enforcing them more consistently against participants in
lower-class markets than against their upscale counterparts. These factors
are partly retributive: The former almost certainly cause more social
harm than the latter, and therefore seem to deserve harsher treatment.
Lower-class criminal markets tend to be more violent than their upper-
class equivalents. And criminal transactions tend to be criminal in part
because they are associated with various social social
pathologies; these
pathologies correlate not only with the criminal behavior
but also with
class. (Consider the cluster of "underclass" pathologies and their rela?
tionship to the crack trade, or the link between the corner saloon and the
pathologies of urban working-class life in 1915, just before Prohibition
tookhold.) The cost of apprehension pushes in the same direction: It is
easier, often a great deal easier, to catch and punish sellers and buyers in
lower-class markets than it is to catch and punish their higher-end
counterparts.
At first blush, none of this seems problematic. Of course those who
trade in crack, if they cause more harm than those who trade in powder,
should be punished more harshly. Of course police officers should go af?
ter people they can catch rather than people they cannot.
Yet each of these "of course" propositions can be quite troubling.
Take the second one first. True, police must take account of the cost of
different enforcement strategies, as anyone must take account of cost
when allocating scarce resources. But like the rest of us, the police tend
not to take account of costs they do not bear. And the nature of the
relevant police tactics allows the police to externalize much of the cost of
enforcement when they go after the street-level crack trade, in a way that
they cannot so easily do when they go after more upscale drug markets.
Now consider the natural tendency to punish participants in lower-
class markets more severely than their upperclass equivalents because the
former cause more social injury than the latter. This tendency seems ob-
viously sensible, but it is at war with itself. Morals laws, if they are to
succeed, must send the message that the behavior in question is bad and
wrong. An enforcement strategy dominated by collateral consequences
sends a different message: The behavior is bad when it produces those
consequences. When the collateral consequences are largely a function
of the class and neighborhood in which the behavior occurs, the message
becomes: The behavior is bad when people in that class and neighbor?
hood do it.
That is not a message likely to have normative force for those who
are its targets. Prohibition may well have foundered on this rock: Con-
temporaneous accounts emphasize how urban working-class whites re-
sented a policy that seemed obviously aimed at them, while drinking in
other circles remained fairly easy (albeit more expensive).8 For alcohol
seventy years ago as for cocaine today, law enforcement has tried both to
signal that the relevant behavior is wrong and to target the behavior pri-
marily when it is associated with bad social consequences?violence, dis-
ease, impoverishment of children, and the like. The targeting seems
right, but it undermines the signal. It is very hard to tell people that they
should not do something others are tacitly permitted to do, especially
when the others in question come from a more favored population
group.
8. See, e.g., National Comm'n on Law Observance and Enforcement, Report on the
Enforcement of the Prohibition Laws of the United States 39, 54-55 (1931) [hereinafter
Wickersham Commission] (discussing reasons for opposition to Prohibition enforcement):
Not the least demoralizing feature of enforcement of national prohibition, is
the development of open or hardly disguised drinking winked at by those in
charge in respectable places where respectable people gather. People of wealth,
professional and business men, public officials and tourists are drinking in hotels,
cafes and tourist camps under circumstances where at least knowledge on the
part of those in charge that the liquor comes in unlawfully is an inescapable
inference.
In the nature of things it is easier to shut up the open drinking places and stop
the sale of beer, which was drunk chiefly by working men, than to prevent the
wealthy from having and using liquor in their homes and in their clubs. Naturally
when the industrial benefits of prohibition are pointed out, laboring men resent
the insistence of employers who drink that their employees be kept from
temptation. . . . It is much easier to padlock a speakeasy than to close up a large
hotel where important and influential and financial interests are involved. Thus
the law may be made to appear as aimed at and enforced against the insignificant
while the wealthy enjoy immunity.
See also id. at 128 (statement of Commissioner William S. Kenyon):
It is an irritating circumstance to labor that great captains of industry favor
prohibition to prevent the laboring men securing a glass of beer on the ground
that they can get more work out of them if they do not have liquor, while they
reserve to themselves the right to have all they want in their cellars and their club
lockers.
The result is the

uncomfortable position the legal system occupies
today. of
The enterprise drug enforcement disproportionately benefits
poor minority communities. It also disproportionately burdens those
same communities and, for entirely plausible reasons, seems racist to
many of those communities' residents?and not only the ones who are
arrested and imprisoned. The stronger that perception is, the weaker is
the benefit of criminal enforcement. Escaping from this box is hard, but
the most promising route is to infuse criminal enforcement with a dose of
self-conscious egalitarianism, by focusing somewhat less on downscale
crack markets and a good deal more on upscale markets for cocaine pow-
der and other drugs.
The remainder of this essay is organized as follows. Part I discusses
the nature of markets for consensual criminal transactions, and in partic?
ular the way those markets tend to divide by class. Part II explains why
this class divide produces enforcement bias of the sort we see in the
crack/powder setting today, and why that bias is, though natural, more
problematic than many people tend to think. Part III looks at the rela?
tionship between enforcement bias and the system's ability to deter mis-
conduct, and Part IV seeks to draw some lessons for the enterprise of
using criminal law to regulate consensual conduct. These discussions are
sketchy; the goal is more to raise questions than to provide answers. Still,
the hypothesis offered here seems to fit not only the broad outlines of
drug enforcement today, but a good deal more as well. The drug war is
not the only war of this sort our society has fought, and the other, similar
wars have all been lost. One reason why may be a built-in conflict be?
tween the most basic elements of good law enforcement strategy. Going
after the worst conduct?the conduct that causes the most harm?makes
obvious sense. So does reinforcing the norms that define what conduct is
"bad" in the first place. In this area, though, those noncontroversial goals
seem to conflict. The crack/powder controversy is only the latest, but
probably not the last, product of this tension.
I. Class and Consensual Crimes
A. Why Drugs Are Different
Classis at once easy to understand and impossible to define well.9

Thankfully, I do not need (thankfully because I do not have) a robust or
definition. It is enough to say that by "poor" or "lower-class" or
precise
"downscale" communities, I mean communities in which unemployment
is high, legally acquired wealth and income are low, and educational and
social resources are below par. By "rich" or "upper-class" or "upscale"
communities, I mean communities that have the opposite characteristics.
Obviously, many communities (and many people) fit neither stereotype.
9. For a similar conclusion well explained, see James Q. Wilson 8c Richard J.

Herrnstein, Crime and Human Nature 28 (1985).
But many communities (and again, many people) do fit one or the other,
and the stereotypes themselves are useful tools in this setting.
Most discussions of class and criminal justice focus on the following
three propositions. First, poor people commit more crimes than do rich
people, in part because people who have littie legal income have greater
need for the illegal kind. Second, though the rich do bad things too,
civil-type sanctions such as damages or fines are usually adequate to deter
and punish them; such sanctions are of limited use for the poor, who
cannot pay. Third, our society's paradigmatic criminal sanction, incarcer?
ation, is very costly, so the system should avoid using it where possible.
All of this adds up to a strong tilt toward criminalizing the wrongs of the
poor while leaving the wrongs of the rich to various civil regulatory
regimes.
This familiarstory has some truth to it (though only some?a wide
range of white-collar crime consists of behavior that fines might deter but
for which the system nevertheless incarcerates people), but it hides more
than it reveals. Consider two other propositions that bear on the relation?
ship between class and crime. First, rich people commit different (not just
fewer) crimes than do poor people. Burglary and auto theft operate in
one kind of criminal community, embezzlement and insider trading in
another. Second, crimes of the well-to-do rarely take place in organized
criminal markets. (They often feed off organized legal markets, which is
not the same thing.) A burglar may work within an established network
of other burglars and fences for disposing of stolen goods. An embezzler
does not operate within such a network; he is much more likely to be a
solo operator or to work with a small group of conspirators on a particu?
lar set of criminal projects, and he needs no fences, for he is probably
stealing cash.
Both propositions affect how potential criminals see the system. The
first?there are few white-collar burglars and few blue-collar embez-
zlers?minimizes the points of comparison between rich and poor. One
of the reasons why trials of rich murder defendants?think of O.J.
Simpson, the Menendez brothers, and Claus von Bulow?receive so
much public attention may be the rarity of the phenomenon they cap-
ture: classic street crimes committed (apparently) by wealthy men. The
absence of large numbers of cases of that sort makes it hard to measure,
and hard to see, the ways in which defendants' wealth and social class
affect criminal justice. The second proposition?insider trading is not
part of a developed illegal market in the same manner that car theft is?
minimizes the information about white-collar crime that is likely to filter
down to the public (including blue-collar criminal actors). Markets re?
quire information; buyers and sellers must be able to find each other, to
know what is being bought and sold, to gauge quality and price, and so
forth. Diffused information has a natural tendency to travel, to spread.
Hence the significance of the fact that white-collar crime tends to take
place outside the kinds of networks that require such diffused informa-
tion. And, obviously, a good deal of white-collar crime involves complex

financial maneuvers that are hard for most of us to understand even
given a fair amount of information. The upshot is simple: Most crimes
do not cross class lines, and information about upper-class crimes tends
not to migrate.
In practical terms, this is very good news for the criminal justice sys?
tem, for it makes class biases difficult to detect. The system can have a
criminal law for poor communities (as, in a sense, it does) without creat-
ing the kind of resentment such an enterprise might be expected to pro?
duce. Of course, envy and a sense of injustice?others do as bad as I did,
and they get away with it?may be quite common among convicts.10 But
these features of crime and class surely mitigate that problem.
Enter drug crime. Drugs have two characteristics that separate them
from almost all othersorts of criminal behavior: People of all classes
want them, and they are sufficiently cheap (at least in some forms) that
people of all classes can afford them. The same characteristics hold true
for prostitution, gambling, and, earlier this century, alcohol as well.
These crimes have another feature that is important to the class-crime
relationship: They take place in organized markets that require diffused
information.
Thisset of characteristics does not apply to any other substantial
class of serious criminal behavior. Much crime takes place outside of or?
ganized markets, which severely limits the flow of information about the
relevant criminal activity. Most of the crime that does take place within
such markets is confined, in the sense that perpetrators tend to come
from a fairly narrow slice of the social class spectrum. But crimes involv-
ing the provision of illegal goods and services must take place in a mar?
ket?how else are the goods and services to be distributed? And that
market must cross class lines because the illegal goods and services (gam?
bling, sex, intoxicants) are things people of different income and social
rank desire.
This seemslike a simple point, but it is both important and easy to
ignore. The usual relationship between class and crime is this: Rich and
and hence hard
poor alike do bad things, but the bad things are different
to compare, and information about offenses of the rich does not spread
widely. The very label "white collar crime"?not just different criminals,
different crimes?makes the point. For crimes like drugs, the relationship
is altogether different. Here, far more than elsewhere, the system must
decide how to enforce the same offenses in very different communities.
And here more than elsewhere, information about those offenses is
widely available.
10. For a good, brief discussion of the role perceptions of inequity play in criminal
behavior, see id. at 56-59.
B. Upscale and Downscale Markets
Of course, the offenses are not precisely the same. As with other prod?
ucts and services sold across a wide range of social classes, illegal goods
vary across place and time, and they tend to generate submarkets for dif?
ferent classes of consumers. These variations occur both in product
(think about the various forms in which cocaine has been sold over the
past two decades) and in manner of distribution. As to the latter, the
variety seems almost endless, in part because we are talking about illegal
transactions?as soon as law enforcement agencies adapt to a particular
distribution pattern, the sellers have an incentive to change the pattern.
The result is a cat-and-mouse game, with different forms of a given drug
sold by different actors in different ways at different times and places.
Generalizing about market structure and product and distribution

patterns in such a world is at least dangerous, and perhaps foolish. Still,
some rough patterns do appear. And similar patterns have appeared
when the system has criminalized the provision of other pleasurable-but-
sometimes-harmful goods and services. Four deserve mention here.
First, there is a tendency to offer a somewhat different product or service
to upscale customers than to downscale customers. Second, the illegal
product or service is often distributed in street markets or at fixed loca-
tions for downscale customers, whereas upscale distribution is more ad
hoc and more private, with a heavier use of telephone conversations, ar-
ranged meetings, and private-but-varied locations. Third, though down?
scale customers only rarely patronize the upscale market (price is pre-
sumably a big deterrent), upscale customers patronize the downscale
market much more frequently. Fourth, while markets in illegal goods
and services often cause serious social harm, the harm is not evenly
spread. Instead, it is concentrated, sometimes heavily concentrated, in
lower-class markets.
1. Product. ? In illegal markets as in legal ones, class-based
product
differentiation is fairly common. Gambling is a good example. In the
nineteenth century, numbers games were marketed mostly to lower-class
customers; bookmaking and illegal casinos mostly to middle- and upper-
class ones.11 The class divide between numbers and bookmaking has per-
sisted: A 1978 Justice Department found that numbers
study players were
both disproportionately poor and disproportionately nonwhite, while
"[t]hose who bet on horses and sports illegally were mainly whites with
average or above average incomes."12 Different "products" have been in
fashion at different places and times, but overall, the sense of class divi-
sion seems to be fairly strong and fairly stable.
11. For a good description of the urban gambling market in the nineteenth
century,
see David R. Johnson, Policing the Urban Underworld: The Impact of Crime on the
Development of the American Police, 1800-1887, at 158-69 (1979).
12. Floyd J. Fowler, Jr. et al., Gambling Law Enforcement in Major American Cities
24-25 8c tbl.2.4 (1978).
The market for illegal alcohol during Prohibition seems to have

been similar. Notwithstanding the conventional wisdom that criminaliza-
tion pushes toward the use of higher potency drugs,13 there is some evi?
dence that through most of the 1920s, working-class alcohol consump-
tion steadily shifted from liquor (gin or whiskey) to beer.14 The reason is
easy to understand: Prohibition effectively raised the price of a quart of
beer from a little over 100 to 800, while the price of a quart of gin rose
from 950 to $5.90.15 The old, pre-Prohibition price of a quart of gin
became, basically, the price of a quart of beer, while gin moved out of
reach of lower-class customers.16 The natural result was significant class
separation between beer and liquor.
Crack and cocaine powder are today's version of the same phenome-
non. As with beer and liquor, there is an obvious price factor: One rea?
son crack did so well in the 1980s in so many poor urban neighborhoods
is that, relative to cocaine powder, crack was cheap.17 That does not ex-
13. See, e.g., David W. Rasmussen & Bruce L. Benson, The Economic Anatomy of a
Drug War 85-88 (1994); Mark Thornton, The Economics of Prohibition 95-99 (1991).
14. The evidence is a littie confusing, but three points seem fairly clear. First, alcohol
consumption generally dropped a great deal during Prohibition. The best estimate is
David Kyvig's, which is based on an analysis of excise tax data before and after Prohibition;
Kyvig concludes that because of Prohibition alcohol consumption fell by at least 50%. See
David E. Kyvig, Repealing National Prohibition 23-25 (1979). Second, the drop in
consumption was steeper for beer than for liquor. A 1932 study concluded that beer
consumption had fallen by two-thirds between 1911-1914 and 1927-1930, while liquor
consumption had actually risen slighdy. See Clark Warburton, The Economic Results of
Prohibition 107 tbl.47 (1932). Given Kyvig's analysis, those conclusions probably overstate
alcohol consumption, but the proportions are nevertheless probably roughly accurate; that
is, beer consumption probably fell by more than two-thirds, and liquor consumption
almost certainly fell, but by much less than beer. Third, during the course of the 1920s,
the ratio of beer to liquor consumption rose steadily and substantially. The same 1932
study found that, between 1922 and 1930, per capita consumption of spirits fell 14%, while
per capita consumption of beer rose a whopping 304%. See id. at 106 tbl.46.
The story that best harmonizes the data goes roughly like this: Working-class
drinking, which was probably concentrated in beer before Prohibition, fell much more
steeply than upscale consumption. Probably a great many working-class Americans gave up
alcohol al together. Cf. id. at 189 (noting evidence that decline in working-class beer
consumption coincided with a substantial rise in consumption of milk). Of the working-
class consumption that remained, there was probably some movement from beer to liquor
at the beginning of the 1920s, but the higher price of liquor pushed downscale consumers
back to beer as the decade went along.
15. This is extrapolated from Kyvig, supra note 14, at 25 (discussing a 1928 study of
alcohol prices).
16. The increase was less extreme for corn whiskey, which went from about $1.60 to a
littie under $4 per quart. See id.
17. The best analysis of drug prices just prior to the rise of the crack market estimated
the price per dose of cocaine powder at $30-$100. See Peter Reuter 8c Mark A.R. Kleiman,
Risks and Prices: An Economic Analysis of Drug Enforcement, in 7 Crime and Justice: An
Annual Review of Research 289, 299 (Michael Tonry 8c Norval Morris eds., 1986). A few
years later, the price per dose of crack fluctuated between $3 and $10. See Bruce D.
Johnson et al., Drug Abuse in the Inner City: Impact on Hard-Drug Users and the
Community, in 13 Drugs and Crime 9, 16 (Michael Tonry & James Q. Wilson eds., 1990).
plain, however, why crack failed to displace cocaine powder among more
upscale drug users. One possibility is pharmacological. Perhaps upscale
users dislike the more intense high crack is said to provide; there may be
a substantial correlation between class and the preference for more "ex-
treme" versions of a given drug. But this runs contrary to the system's
experience with some other
drugs. For example, during Prohibition the
correlation was exactly the reverse, with the stronger forms of alcoholic
beverage dominating the upscale market. Another possibility is that
some drugs are, in part, what economists call positional goods: Their
desirability depends on who uses them and who doesn't. Crack's very
popularity in the inner city, and especially among poor blacks,18 may
have dampened its appeal to other sectors of the population.
Whatever the reason, the fact of the separation seems clear enough.
But one should not exaggerate the extent of the separation. Crack and
cocaine powder are the same drug, prepared and packaged differently.
The same is true of liquor and beer. Analogies of this sort break down
with services like gambling, but all the various gambling markets were
variations on the same theme?a game of chance in which one risked a
given sum for a shot at a larger sum. I have noted some familiar exam-
ples in which the illegal product or service differed in different neighbor?
hoods, and the differences are important; they suggest a tendency toward
the same kind of class separation in illegal markets that one sees in many
legal markets. Still, in all these markets, the similarities in product or
service have consistently been greater than the differences.
2. Distribution. ? In illegal markets more than in legal ones, how the
sale is made is terribly important, for it largely determines the extent of
the risk that one or more ofthe transacting parties will go to prison. This
goes a good distance toward explaining why class differences in the mar-
keting of illegal products and services appear so strong: A substantial
part of what wealthier customers buy is a less risky means of transacting.
And the single most common feature that divides upscale, less risky mar?
kets from downscale ones is visibility. Public transacting, either on the
18. In 1995, the National Household Survey on Drug Abuse found that,
proportionately, two-and-one-half times as many blacks as whites had used crack in the
past year (and twice as many blacks as Hispanics). See U.S. Dep't of Health and Human
Services, National Household Survey on Drug Abuse?Main Findings 1995, at 59 tbl.4.8
[hereinafter 1995 Household Survey]. When asked whether they had used some form of
cocaine (including but not limited to crack) in the past year, a roughly equivalent
percentage of all three groups answered yes. See id. at 53 tbl.4.2. The concentration of
crack users in cities was not greater than for cocaine users as a whole, but crack users were
much less well educated and more likely to be unemployed than were cocaine users as a
whole. See id. at 53, 59.
The racial concentration is actually more severe than the Household Survey data seem
to suggest. A recent survey sponsored by the National Institute of Justice found that white
and Hispanic drug users "spread their drug use relatively evenly across the powder, crack,
heroin, and combination heroin markets," while black users were more likely to use crack
alone. K Jack Riley, Crack, Powder Cocaine, and Heroin: Drug Purchase and Use
Patterns in Six U.S. Cities 1, 11 (National Institute of Justice 1997).
street or at well-known, fixed points in the neighborhood, has long been

a feature of many criminal markets in poor neighborhoods. Unsurpris-
ingly, wealthier patrons have often been willing to pay for more secretive,
behind-closed-doors transacting procedures.
Prostitution offers the easiest example. For well over a century, there
have been three dominant means of marketing this service. The first is
through street solicitation. The second is the bordello, a fixed location
that customers frequent. The third involves some form of (typically dis-
creet) advertising, followed by private contact between the customer and
either an intermediary or the provider of the service.19 The first tends to
be the cheapest, the third the most expensive.20 The first is also the most
public, the third the least. In the nineteenth century as today, street solic?
itation was almost always associated with poor neighborhoods, while call
girls, escort services, and the like have been seen as servicing upscale cus?
tomers. Fixed "houses" have fallen into either category, depending on
local circumstances.21
The various markets for illegal gambling, in the days when gambling
could give rise to serious criminal punishment, were broadly similar to
prostitution in this respect. Numbers games and slot machines involved
either transactions on the street or at a fixed point. Bookmaking tended
to involve private contacts, by phone or at varying locations. Floating casi-
nos, as the name suggests, varied their sites. And, roughly speaking, the
amounts of money wagered, and hence the class of wagerers, rose as one
moved from the fixed-location activities to bookies and floating games.
The exception, again as with prostitution, is the fixed casino or gambling
house, which functioned like the bordello, sometimes appealing primar-
ily to upperclass customers and sometimes not.22
19. For a contemporary version of this breakdown, see, e.g., Paul J. Goldstein,
Prostitution and Drugs 35-36 (1979); for a discussion of the similar categories that
attached to urban nineteenth-century prostitution, see Johnson, supra note 11, at 149-57;
for application to the frontier West, see Anne M. Butler, Daughters of Joy, Sisters of Misery:
Prostitutes in the American West, 1865-90, at xvii (1985).
20. See, e.g., Johnson, supra note 11, at 152-56 (discussing pricing variation among
nineteenth-century streetwalkers, upscale "houses of assignation," and more mid-level
bordellos).
21. For much of the nineteenth century, the fixed house was the dominant
distribution mechanism. See, e.g., Thomas C. Mackey, Red Lights Out: A Legal History of
Prostitution, Disorderly Houses, and Vice Districts, 1870-1917, at93 (1987). This explains
why criminal prosecutions were often brought, not for the act of prostitution itself, but for
running a "disorderly house." See id. at 93-118. Where such "houses" dominated the
market, they spanned any class divides in the market. Cf. Mark Thomas Connelly, The
Response to Prostitution in the Progressive Era 93 (1980) (contrasting upscale and
downscale houses in turn-of-the-century Chicago).
22. See, e.g., Fowler et. al, supra note 12; Johnson, supra note 11; see also 1
Commission on Organized Crime, A.B.A., Organized Crime and Law Enforcement 96
(Morris Ploscowe ed., 1952) (noting that fixed casinos "rang[ed] from luxurious clubs and
roadhouses to dingy backrooms"). See generally Rufus King, Gambling and Organized
Crime 37-70 (1969) (describing basic forms of gambling).
Alcohol distribution during Prohibition did not fit the pattern in

one sense, though it did in another. A great deal of urban liquor con?
sumption took place in fixed establishments like speakeasies, though a
great deal also took place in private homes. Meanwhile, a large portion
of beer sales were made privately to individuals, and proportionately
fewer sales were made in saloon-like establishments: Prohibition's biggest
accomplishment was the shutting down of the corner saloon, a key site
for working-class alcohol consumption. This partially reverses the usual
class pattern. But there is more to the picture. Because of its low alcohol
content, beer has always been sold in much greater volume than stronger
beverages. Greater volume meant greater transport and storage costs,
along with greater opportunity for police intervention; it also meant that
much ofthe beer had to be manufactured locally for sale to be profitable.
The nature of the manufacturing operation required that this take place
in large, fixed locations that could not easily be kept secret. And the
volume of the deliveries required the use of trucks. So even though retail
transactions were sometimes less public for beer than for liquor, manu-
facture and wholesale transactions were vastly more public. As a conse-
quence, beer's street presence was almost certainly greater than
liquor's.23
Cocaine, of course, fits the pattern neatly. Crack is sold in a variety
of ways, but street transactions are the norm.24 This explains the develop?
ment of specialized roles for handling the drugs, handling the money,
identifying buyers, and the like; such specialization lowers the risk to the
enterprise from police buy-and-bust efforts.25 Cocaine powder is also sold
in different ways, yet again the class pattern is noticeable: Individual de-
23. The Wickersham Commission report noted that urban speakeasies drew a higher-
class clientele than pre-Prohibition corner saloons, which catered to working-class men.
See Wickersham Commission, supra note 8, at 37 ("Probably a much greater number of
those who patronize [the speakeasies] can afford to do so than was true . . . of the
saloon."). The Commission also emphasized the large role foreign imports (often in
relatively small quantities, transported by water along the East Coast and Great Lakes)
played in the liquor market, see id. at 23-25; when discussing beer production, the report
stressed the role of local breweries, see id. at 30-32, and large distribution organizations,
see id. at 37. Consequently, the Commission labeled beer, not liquor, "the strength of. . .
corrupt political organizations in many places." Id. at 31. That followed naturally from the
relatively more public nature of beer manufacture and distribution, which in turn followed
from beer's ratio of volume to alcohol content. The overall picture is of liquor distribution
that was relatively more secretive, with a relatively upscale customer base, and beer
distribution that was more open, with a more downscale clientele and a larger street
presence.
24. In a 1997 study of drug use in six major cities, the percentage of crack users who
reported making their purchases outdoors (i.e., on the street) ranged from 48 to 87, and
three of the six percentages exceeded 70. See Riley, supra note 18, at 17 tbl.18. As these
numbers suggest, notwithstanding the usual pattern there is substantial variance across
jurisdictions. Cf. Tom Mieczkowski, Crack Distribution in Detroit, 17 Contemp. Drug
Probs. 9, 26 (1990) (noting that in Detroit, "[o]pen street sales of crack are the exception,
not the rule," and that most crack transactions take place indoors).
25. See Johnson et al., supra note 17, at 21.
liveries and telephone transactions are vastly more common than for
crack.26 Consider the following brief description of one sales organiza-
tion in New York in the late 1980s:
Max . . . was the organizer and leader of the crew. Chillie was
the crew chief who directed house and street sellers. . . . Kitty
worked for a 'dial-a-gram' service that sold cocaine mainly to
middle-class buyers. Charlie preferred direct sales to customers
from the street corners.27
Kitty's product was cocaine powder; the other sellers dealt mostly in
crack.28
The reason for this common pattern is simple. In illegal markets as
in legal ones, individualized transacting is costly. Mass marketing?a
fixed storefront or a floating street bazaar?is much more efficient. But
street markets and fixed locations have a cost of their own: They are
much more easily identified by the police. Since the risk of arrest and
prosecution is a part of the price of the illegal good, it follows that the full
price of crack (including that risk) may, for some buyers, be higher than
the full price of cocaine powder. The monetary price remains much
lower. Naturally enough, buyers tend to sort themselves out according to
their preference for either higher dollar price coupled with lower risk or
lower dollar price coupled with higher risk.
In that sorting process, there is only one choice for buyers with littie
money: They must either bear the added risk of police intervention or
forgo the purchase. Wealthier buyers have two choices, and which is bet?
ter depends on the individual buyer's risk preferences. Hence the com?
mon customer profile in a number of these markets, with poorer buyers
clustered in the downscale market but middle-class buyers divided be?
tween upscale and downscale markets. In the cocaine market discussed
in the quote above, upscale customers were divided between Kitty's indi?
vidualized distribution system and the street market that Chillie and
Charlie ran.29 Similarly, rich "johns" may use either high-priced and dis-
creet call girls or lower-priced street prostitutes, as celebrity arrests like
Hugh Grant's and Eddie Murphy's remind us.
So street markets in illegal goods and services are common, as are
more private, discreetdistribution systems, and while the former attract a
mixture of poorer and wealthier customers, the latter cater more or less
exclusively to a higher-end clientele. And a key difference between the
two kinds of markets, perhaps the key difference, is the greater risk of
police attention borne by those who buy and sell on the street.
26. Riley, supra note 18, at 17 tbls.18-19, reports substantially more powder than
crack users making their purchases indoors, and substantially more powder than crack
users making their purchases outside their own neighborhoods. Both patterns are
consistent with a tendency toward heavy use of the telephone and arranged meetings.
27. Johnson et al., supra note 17, at 23.
28. See id. at 23-24.
29. See id. at 24-25.
This last point may have a good deal to do with the link between class
and race biases in this area. By their nature, street markets tend to be-
come part of a neighborhood's culture, part of its public life. (This is, of
course, precisely the complaint that underlies the movement for "public
order policing" that is so much the rage in law enforcement circles these
days.30 That movement has its genesis in the idea, made famous by James
Q. Wilson and George Kelling, that the nature of street life in a commu-
nity sends signals both to would-be criminals and to law-abiding citizens
about what is and isn't acceptable behavior, and about who "owns" the
streets.31) Note where such markets occur. For some crimes?prostitu?
tion is perhaps the best example?street transactions often take place in
or near a city's business district, or in a particular, run-down part of it.
For other crimes, where a large proportion of the buyers are local, the
more natural pattern is the one we see in open-air drug markets, which
commonly arise in residential areas.32 And in almost any American city
with a multi-racial population, downscale residential neighborhoods are
heavily segregated.33
Often, those neighborhoods are heavily black. An early 1990s study
of census data found that the population of extremely poor neighbor?
hoods in America's hundred largest cities was 57% black, 24% Hispanic,
and 16% white.34 The same study measured the population of "dis-
tressed" neighborhoods, defined as areas with heavy concentrations of
poverty, unemployment, female-headed households, and public assist?
ance beneficiaries. That population was 68% black, 20% Hispanic, and
10% white.35
Put these points together. Street markets tend to arise in residential
neighborhoods; such markets naturally become part of the neighbor?
hood's street life, its culture; and the neighborhoods themselves tend to
30. For an excellent survey of this trend in policing and its significance for criminal
law and criminal procedure, see Debra Livingston, Police Discretion and the Quality of
Life in Public Places: Courts, Communities, and the New Policing, 97 Colum. L. Rev. 551
(1997).
31. See James Q. Wilson 8c George L. Kelling, Broken Windows, Atlantic Monthly,
Mar. 1982, at 29. For a more detailed elaboration of the thesis, see George L. Kelling 8c
Catherine M. Coles, Fixing Broken Windows (1996).
32. See Riley, supra note 18, at 17 8c tbl.19 (1997 study showing that roughly two-
thirds of crack users in six cities reported making their drug purchases in their own
neighborhoods).
33. On the level of segregation in poor urban neighborhoods, see, e.g., Michael H.
Schill 8c Susan M. Wachter, The Spatial Bias of Federal Housing Law and Policy:
Concentrated Poverty in Urban America, 143 U. Pa. L. Rev. 1285, 1288-89 (1995). On the
relationship between housing segregation and (non-drug) crime, see Douglas S. Massey,
Getting Away with Murder: Segregation and Violent Crime in Urban America, 143 U. Pa.
L. Rev. 1203 (1995).
34. See John D. Kasarda, Inner-City Concentrated Poverty and Neighborhood
Distress: 1970 to 1990, 4 Housing Pol'y Debate 253, 263 tbl.3 (1993). Kasarda's findings
are summarized and discussed in Schill 8c Wachter, supra note 33, at 1286-90.
35. See Kasarda, supra note 34, at 263 tbl.3; the figures are reprinted in Schill 8c
Wachter, supra note 33, at 1288.
be segregated by race or ethnicity. In these circumstances, anything that

is part of a residential neighborhood's street life is likely to appear to be
part of a racial or ethnic group's street life. The local crack culture?note
that the word "culture" is much more often linked to crack than to other,
more upscale drugs, no doubt because of crack's larger street presence?
comes, in many cities, to be seen as an aspect of black culture. This ten?
dency is only aggravated by the fact that, because the neighborhoods
themselves are largely segregated, the business of distributing the illegal
good or service tends to be segregated as well?the most natural place for
street to come from is the neighborhood
sellers where the sales take
place. (And, of course, criminal enterprises must rely on non-legal
means of enforcing their contracts; one of the most efficient such means
is to preserve ethnic and neighborhood bonds among participants in the
enterprise.36) If one were to design a system with an eye toward produc-
ing racial or ethnic stereotypes, one could hardly do better.
Those
stereotypes are typical of markets for illegal goods like drugs.
Though many crack users are white,37 the crack market is usually thought
of as a black phenomenon. In large cities in the 1920s, bootlegging was
seen as the business of Italians.38 Prostitution in the 19th century was
often seen as an aspect of Irish culture; by the early 20th century other
36. This idea is now common in discussions of commercial transactions. See Lisa
Bernstein, Opting Out of the Legal System: Extralegal Contractual Relations in the
Diamond Industry, 21 J. Legal Stud. 115, 140-43 (1992); Janet T. Landa, A Theory of the
Ethnically Homogeneous Middleman Group: An Institutional Alternative to Contract Law,
10 J. Legal Stud. 349 (1981).
37. According to one leading survey done in 1995, the percentage of blacks who used
crack at least once in the past year was two-and-one-half times as high as the percentage of
whites. See 1995 Household Survey, supra note 18, at 59 tbl.4.9. But since the population
includes more than six times as many whites as blacks, see U.S. Bureau of the Census,
Statistical Abstract of the United States?1997, at 14 (117th ed. 1997), that would mean
more whites than blacks use crack at least occasionally.
To be sure, these numbers are not necessarily good indicators of the racial
distribution of heavy users. And even among heavy users, blacks are much more likely to
concentrate on crack than whites, who spread their use among several different drugs. See
Riley, supra note 18, at 11, 13 8c tbl.13. Still, the 1995 Household Survey numbers show
that a sizeable fraction of crack use occurs among whites.
38. A good indication is found in Martha Bruere's repeated references to the Italian
character of the urban alcohol trade in her 1927 study of Prohibition's effects. See Martha
Bensley Bruere, Does Prohibition Work? 57-60 (1927) (San Francisco); id. at 89 (New
Orleans); id. at 139-40 (Madison, Wis.); id. at 170-71 (Cleveland); id. at 186 (Buffalo); id.
at 225 (Boston); id. at 258-59 (New York).
More recent historical work emphasizes a wider range of ethnic groups in discussions
of the urban alcohol trade in the 1920s. See, e.g., Mark H. Haller, Bootleggers as
Businessmen: From City Slums to City Builders, in Law, Alcohol, and Order: Perspectives
on National Prohibition 139, 139-40 (David E. Kyvig ed., 1985) (discussing ethnic makeup
of bootleggers in large cities); David E. Kyvig, Sober Thoughts: Myths and Realities of
National Prohibition After Fifty Years, in Law, Alcohol, and Order, supra, at 3, 13 (noting
link between urban ethnic culture and drinking).
immigrant groups were tagged with a similar label.39 These popular con-
nections between race or ethnicity and particular kinds of crime owe a
great deal to popular prejudices about the stereotyped groups. But those
prejudices are reinforced, and perhaps partly created, by the kinds of
markets that characterize consensual crimes. Such crimes often require
something akin to street markets in order to serve customers in down?
scale communities. The markets themselves thus have their source in a
class divide. But in a world where communities are divided along class
and race lines, one divide tends to produce the other. Public perceptions
being what they are, the racial or ethnic connection tends to be magni-
fied. In this sense, street markets for illegal goods and services begin with
class, but they do not stay there. Race quickly enters the picture, and may
come to dominate it.
3. Links between the markets. ? Upscale and downscale markets are
not perfectly segmented. I have already noted how some upperclass con-
sumers migrate to lower-class markets: Just as rich consumers who prefer
savings to consumption may shop at Wal-Mart even though they can af-
ford to go to tonier stores, suburban drug users with a taste for risk regu-
larly drive into poorer city neighborhoods to buy crack. Then too, the
distribution systems for some of these crimes may be integrated only a few
steps up the ladder. Recall Max and Kitty: The person one step up the
distribution chain from street-level crack dealers was also one step up the
distribution chain from retail dealing of cocaine powder.40 Much the
same thing was true of liquor and beer during Prohibition, at least in
some cities.41
Where these sorts of links are strongest, one should expect partici-
pants in downscale markets to be most familiar with upscale crime. Crack
dealers are likely to be much more aware of the details of the cocaine
powder market, and of who gets prosecuted and when, than other "blue
collar" criminals are of other sorts of white-collar criminality. Note too
that the cross-pollination tends to work disproportionately in one direc-
tion?poor consumers can't buy in the rich market, but rich consumers
sometimes buy in the poor one.
There is another class effect worth noting, one that likewise tends to
link downscale and upscale markets. For most ordinary consumer goods,
sellers tend to be wealthier than buyers. The same tendency operates to
some degree in illegal markets: Drug dealers in poor neighborhoods
39. See, e.g., Connelly, supra note 21, at 60-64; cf. Butler, supra note 19, at 4
(describing ethnic hierarchy of prostitutes in nineteenth-century San Antonio as follows:
"A despised group, the Mexican women occupied the lowest rung on the ladder of social
acceptance, with blacks only slightly ahead, and white women at the top of a scorned
heap.").
40. See Johnson et al., supra note 17, at 23-25.
41. To take one obvious example, Al Capone's organization handled both beer and
liquor. See, e.g., RobertJ. Schoenberg, Mr. Capone 177 (1992) (detailing income earned
from various activities, including beer and liquor).
tend to have more

money than many of their customers. But there is a
strong counter-tendency in the illegal markets that is not present in the
legal ones. Because selling drugs creates a much higher risk of criminal
punishment than buying, sellers, much more than buyers, will tend to
have a high tolerance for that risk. This is, of course, particularly so for
items that are marketed on the street, where the risk is especially high.
One's tolerance for bearing a high risk of punishment depends, in turn,
on a combination of two factors: how costly the punishment is, and how
much one discounts future pain in making present decisions. But pun?
ishment is more costly for some people than others?how much a given
prison term hurts me depends in part on the life I led before being incar-
cerated. Naturally, then, the population of street sellers, the most ex-
posed criminal actors in the drug trade, tends strongly to come from
poor neighborhoods42?that is, they tend to have less to lose than some
of their customers, who bear less risk of arrest and punishment.
Thus, in criminal markets of this sort, a significant number of cus?
tomers are indeed vastly higher on the socioeconomic ladder than those
from whom they buy. Since, again, sellers are much more likely to be
arrested and imprisoned than buyers, this point aggravates the twin ten-
dencies toward (1) greater exposure to criminal punishment for those
from downscale communities, and (2) greater contact between downscale
and upscale criminal actors.
4. Violence and social pathology. ? The most familiar pattern is saved
for last. With crimes of this sort, social costs always lurk in the back?
ground. For prostitution it is the spread of disease, fraud and violence
perpetrated on customers, and violence against the prostitutes by those
who employ them. For gambling it is (again) fraud and violence on cus?
tomers, coupled with the impoverishment of customers' families. For al?
cohol it is violence by customers?the specter of drunken men going
home to beat their wives and children was everywhere in popular debate
about Prohibition?and, again, impoverishment and neglect of their
families.43 For drugs, the list includes impoverishment and neglect of
families, unemployment, violence by dealers and customers alike, and
theft to support addicts' habits.
Even a glance at this list reveals the degree to which these patholo-
gies are tied to the class divide in illegal markets. Higher-priced call girls
are less likely to be carriers of disease than street prostitutes; call girls are
also less likely to have violent pimps or to be involved in serious drug
42. As one study of a cocaine distribution ring in New York put it: "Although such
crews of inner-city youths are primarily from low-income minority backgrounds, their
buyers are not limited to low-income minority drug abusers." Johnson et al., supra note 17,
at 24.
43. For one example, see Bruere, supra note 38, at 299-300 (describing working-class
life on the New York waterfront before Prohibition). Such descriptions had some factual
basis. See id. at 179 (noting a sharp drop in alcohol-related child abuse in Allegheny
County, Pennsylvania from 1919 to 1920, when Prohibition took effect).
abuse; and sexual transactions with call girls take place in settings where
both call girls and customers are less at risk of being beaten or robbed.44
With gambling, the basic point is much simpler: Better-off customers can
lose more before their families are at risk of serious deprivation. The
same is true of drinking; also, violence is linked with class and alcohol
alike today,45 and presumably was during Prohibition as well.
The same story holds true, perhaps even more so, with drugs today.
Violence in drug markets seems strongly correlated with the presence of
street distribution systems.46 And the social pathologies associated with
the urban underclass are, not coincidentally, the same as those associated
with heavy drug use.47
More broadly, there is bound to be some correlation between the
presence of illegal street markets and other sorts of crime. That is a key
element of Wilson and Kelling's "Broken Windows" argument: Street dis-
order breeds more street disorder, for it signals both law-abiding citizens
and criminals that the street is not being monitored.48 Given that street
markets for illegal products and services tend to be a feature of lower-
class rather than upper-class communities, one would expect that drug-
related crime (or, in other times or places, prostitution-related crime or
gambling-related crime) would be much higher in poorer communities
than in richer ones, even if drug use is a common feature of both.
44. Thus, upscale "escort services" devote a good deal of energy to screening both
escorts and customers?the former to ensure the absence of, inter alia, needle marks
(which would correlate strongly with AIDS), the latter to ensure safety for the escorts. See,
e.g., Marianne Macy, Working Sex: An Odyssey into Our Cultural Underworld 3-4
(1996).
For a 1970s study showing much lower levels of heroin use among upscale prostitutes
than among downscale ones, see Goldstein, supra note 19, at 53-67; see also id. at 147
(noting that "[a]ddicts, or women who were habitually and obviously under the influence
of drugs, were usually denied entry to the upper levels of the occupation").
45. See, e.g., Elizabeth Kandel Englander, Understanding Violence chs. 3, 7 (1997)
(discussing links among class, substance abuse, and violence); Leonard D. Eron et al.,
Poverty and Violence, in Aggression: Biological, Developmental, and Social Perspectives
139 (Seymour Feshbach &Jolanta Zagrodzka eds., 1997) (discussing link between class and
violence); Jeffrey Fagan, Intoxication and Aggression, in Drugs and Crime, supra note 17,
at 241 (discussing links among culture, substance abuse, and violence).
46. Thus, the crack trade itself became more violent as it moved from indoor fixed
locations to the street. See Ansley Hamid, The Political Economy of Crack-Related
Violence, 17 Contemp. Drug Probs. 31, 63-64 (1990).
In the early years of the crack trade, its violence was thought to be a function of
crack's pharmacological properties. Researchers have fairly consistently rejected that
possibility. See, e.g., Jeffrey Fagan 8c Ko-lin Chin, Initiation into Crack and Cocaine: A
Tale of Two Epidemics, 16 Contemp. Drug Probs. 579 (1989).
47. For an excellent general discussion based on studies of drug trafficking in New
York, see Johnson et al., supra note 17, at 39-55. For a discussion focused on the link
between the crack trade and homelessness, see Christopher Jencks, The Homeless 41-46
(1994).
48. See generally Kelling 8c Coles, supra note 31; Livingston, supra note 30; Wilson 8c
Kelling, supra note 31.
This three-cornered link?with violence, street crime, and social pa-

thology at one point, drugs, alcohol, prostitution, or gambling at another,
and lower-class neighborhoods at the third?is hardly new. The idea that
lower-class communities were especially prone to these social harms from
consensual transactional crime is a familiar one in discussions of late-
nineteenth-century prostitution, or the early-twentieth-century alcohol
trade.49 The same point is common in discussions of the urban crack
trade today.50
Note that this tendency is not the product of bigotry of any sort,
though bigotry may exaggerate it. The tendency for consensual crimes to
cause more social injury in lower-class markets than in upper-class mar?
kets is not only real, but natural. Behaviors like these can produce genu-
ine disaster for those who engage in them. Users can lose jobs and
homes and fail to feed family members who depend on them; they can
turn to other sorts of crime to support themselves and lash out violently
at those who threaten them in their exposed condition. Drugs, alcohol,
and gambling have this much in common: All can push buyers over a
cliff. Whether that actually happens depends partly on how the buyers
respond to the illegal good (how prone to addiction they are), and partly
on how close to the edge of the cliff they are to begin with. For people
who live at the economic and social edge of society, disaster is only a
small step away. People with more resources, financial and social, have
more of a safety net; they have farther to go before they fall.
So poverty is naturally linked with the social pathologies that are in
turn linked with consensual crime. These links may be stronger than this
sketchy discussion suggests, because there may be a substantial correla-
tion between poverty and addictive behavior. But even if this last correla-
tion does not exist, and even if the level of drug use in poor and rich
neighborhoods is the same, the social cost of drug use will tend to be
higher in the poor neighborhoods. And this is old news: If anything in
the history of consensual crimes is a constant, it is the crime-poverty-social
pathology triangle.
49. See Buder, supra note 19, at 53-58 (discussing relationship among prostitution,
poverty, and theft in the frontier West); Connelly, supra note 21, at 64 (explaining popular
connections among poverty, immigration, and prostitution in turn-of-the-century cities:
"Prostitution was a real and ugly aspect of the unconscionable conditions under which
many immigrants were constrained to live."). With respect to alcohol, the link to poverty
and crime was a theme of contemporaneous writing on Prohibition. See, e.g., Wickersham
Commission, supra note 8, at 6-7; id. at 127 (statement of Commissioner William S.
Kenyon); Herman Feldman, Prohibition: Its Economic and Industrial Aspects 116, 130-37
(1930).
50. See, e.g., William Julius Wilson, When Work Disappears: The World of the New
Urban Poor 20-23, 52-62 (1996); Johnson et al., supra note 17, at 39-49.
II. The Sources of Bias
Imagine a society with no racial or ethnic divides, but with class and
drug consumption patterns like ours. It is easy to see how such a society
might end up punishing crack much more harshly than powder, or how it
might go after street prostitutes more than call girls or, in an earlier era,
working-class beer distribution networks more than gin sales in upper-
class speakeasies. In retributive terms, street-level markets in poor neigh?
borhoods cause more harm than more private distribution networks used
by upscale customers. The system can therefore plausibly conclude that
crack dealing and crack consumption are different and worse behaviors
than the sale and consumption of cocaine powder. Then too, partici?
pants in street markets are more easily caught, making them better
targets for police attention than their counterparts in upperclass markets.
All of which seems perfectly natural?indeed, it seems like an unam-
biguously good thing. Yet this familiar pair of instincts is more problem-
atic than one might suppose. The usual retributive instincts about buyers
and sellers and about street transactions and discreet transactions rest
partly on premises about who is responsible for what, premises that seem,
on examination, quite contestable. And the cost advantage of policing
street markets is partly the product of police officers' ability to externalize
some of the cost of policing such markets. (It is also partly the product of
the legal system's rules on searches and seizures, meaning that some part
of that cost advantage is a function of legal choice, not social fact.) This
is not to say that the system's bottom lines?selling crack is worse than
selling powder, and the crack market is easier to police than the powder
market?are wrong. On the contrary, those bottom lines are at least de-
fensible, and perhaps right. But they are not obviously right; they depend
importantly on the answers to hard questions about retributive theory
and how best to regulate the police.
Thus, two things are simultaneously true. First, the system has good
reasons, reasons that do not depend on any class or race bias, for tilting
against crack relative to powder, just as it has had good reasons for the
similar tilts we have seen in the enforcement of other consensual crimes.
Second, those who are on the losing side of those tilts?those offenders
whom the system disproportionately targets and punishes?have good
reasons for being suspicious about the decision to target them. Both
those who find our society's approach to crack and powder plainly right
and those who find it discriminatory can find firm ground on which to
stand.
A. Retributive Justice
According to ordinary retributive principles, conduct that causes

more harm is worse than conduct that causes less harm, all else being
equal. Two points seem to follow for the enforcement of most consen?
sual crimes. First, sellers are worse than buyers. This fairly noncontrover-
sial proposition has a not-so-obvious class tilt: Some upscale buyers buy in
downscale markets; where that is so, the proposition favors upscale drug
users relative to downscale suppliers. The number of downscale buyers in
upscale markets is, of course, much smaller. The second retributive prop?
osition is more explicitly class-biased: Buyers and sellers in downscale
street markets are worse than their counterparts in more discreet upscale
markets.
What is the retributive
justification for these propositions? Take the
proposition that sellers
are worse than buyers. As with legal goods or
services, any given seller of illegal goods and services will likely engage in
more transactions than any given buyer. Thus, even if the parties to each
transaction are viewed as equally responsible for the transaction, sellers
are responsible for more transactions. Moreover, the direct harm from
crimes of this sort tends to be visited on buyers, not sellers. Drug addicts
die of overdoses; compulsive gamblers squander all their assets. Sellers
do not suffer the same harms (unless they become consumers them?
selves). While buyers can be seen as harming only themselves, sellers can
be seen as harming others?the buyers, or at least some of them?and it
is worse to harm another than to harm oneself.51 (This second point
explains why prostitution is an occasional exception to the pattern, an
area where people do sometimes think of buyers as more culpable than
sellers. With prostitution, the sellers are more prone to injury and degra-
dation than the buyers, so that buyers sometimes come to be seen as the
ones causing harm to others.)
These points are obvious and powerful, which is no doubt why the
legal system has so consistently punished sale of illegal goods and services
more harshly than the purchase of those same goods and services. Yet
there is a plausible retributive vision that leads in a very different direc-
tion. Though an individual illegal sale may be equally "caused" by buyer
and seller, the existence of the illegal market is more fairly attributed to
buyers as a whole than to sellers as a whole. Supply does not cause de?
mand; the act of selling does not produce willing buyers. Demand does
cause supply; the presence of willing buyers does tend to induce people
to become sellers. As those who study drug enforcement know well, if all
the sellers of cocaine were imprisoned tomorrow, a new batch of sellers
would take their place; but if all those who wish to use cocaine were to
decide that it is no longer desirable, the sellers would disappear. Of
course, any individual buyer is responsible for only a very small portion of
this effect. But a particular buyer can be seen as a kind of accomplice to
distribution, as guilty of inducing the seller's behavior.52 Seen that way,
51. This is an old and widely accepted idea; it is the reason why paternalism is
generally deemed a much more questionable basis for criminalization than punishment or
prevention of harm to third-party victims. See, e.g., 3 Joel Feinberg, The Moral Limits of
the Criminal Law: Harm to Self 3-26 (1986).
52. The actus reus for an accomplice includes causing, encouraging, or inducing the
crime in question. See 2 Wayne R. LaFave 8c Austin W. Scott, Jr., Substantive Criminal Law
? 6.7(a), at 136 (1986). The mens rea is harder to define, but generally something like
buyers appear responsible for much more than the harm to themselves;
they share in the harms caused by the illegal market as a whole.
Now take the proposition that participants in street markets in poor
neighborhoods are worse than participants in other, better hidden illegal
markets. Support for this proposition too seems powerful. The violence
and social injury that attendsillegal street markets is real. The "Broken
Windows" insight that public criminality (which is what street markets
represent) causes fear and retreat by law-abiding citizens, which in turn
causes more criminality, has a good deal of support.53 And a poor
buyer's greater susceptibility to a range of harms?-joblessness, inability to
care for one's children, a need to steal to support the illegal habit?
means that the provision of goods like drugs in poor neighborhoods will
likely cause more human tragedy than the provision of those same goods
to wealthier customers.
Yet here too there is another
perspective, not necessarily right but at
least plausible. Some portion of the retributive gap between the two
kinds of illegal markets flows from a definitional shell game. Selling pow?
der is being compared to selling crack plus ancillary violence. The vio?
lence, however, is a separate wrong; its presence does not establish that
selling crack is worse than selling powder. One could quite plausibly
think that Al Capone's organization, which made much of its money off
beer sales to middle- and working-class Chicagoans, was worse than Joe
Kennedy's, which imported scotch for high-end consumption, without
thinking that selling beer was worse than selling liquor.54 Capone not
only sold beer, he killed people. Kennedy didn't.
The more substantial response goes to the nature of the choice set
different offenders face. The argument that those who buy and sell crack
are worse than those who buy and sell powder makes it sound like offend?
ers face a range of options?they can obey the law and avoid cocaine in
all of its forms, they can involve themselves in the cocaine powder trade,
or they can enter the crack market. Middle-class drug consumers do face
such a choice set, which is why, if anyone can fairly be blamed for contrib-
uting to the crack market, suburbanites who drive to the city to buy crack
can. Other participants in these markets probably face a different set of
choices: Stay clean, or buy or sell whatever drug is sold locally through
purpose or knowledge is required. See id. ? 6.7(b), at 141-43. Buyers of illegal drugs
easily satisfy these standards. Cf. Model Penal Code ? 2.06 cmt. 9 at 324-25 (justifying
exemption of buyers of illegal goods and services from accomplice liability as means of
forcing legislatures to decide how best to grade offenses of purchase and sale).
53. The evidence is collected and discussed in Livingston, supra note 30, at 581-83 8c
nn.151-60.
54. According to one recent biographer, most of Capone's income came from
alcoholic beverages, and within that category beer was "by far the larger contributor."
Schoenberg, supra note 41, at 177. Kennedy's involvement in liquor importation is a
matter of dispute. For one recent account that concludes his involvement was substantial,
see Ronald Kessler, The Sins of the Father: Joseph P. Kennedy and the Dynasty He
Founded 35-38 (1996).
whatever distribution networks operate locally. It seems a stretch to

blame offenders, not just for opting into the drug trade, but for the fact
that in their neighborhoods that trade is more socially harmful than else-
where. The contrary conclusion sounds uncomfortably close to blaming
them for growing up in the wrong neighborhoods.
Again, I am not suggesting that this response is right. In the next
part, I will take up the implications of even a colorable response to the
claim that downscale market participants are worse than their upscale
counterparts. For now, it is enough to note two points. First, there are
entirely plausible reasons why many decent, not-at-all-bigoted people
would wish the legal system to work especially hard at stamping out illegal
markets in poor neighborhoods. It is no accident that some urban social
workers were strong proponents of Prohibition?not in spite of the fact
that it seemed to target drinking by urban working-class men, but because
of that fact.55 So too, it is no surprise that some black members of
Congress strongly supported the heavy crack/powder differential in fed?
eral sentencing law.56 Second, there are also entirely plausible reasons
why participants in those markets might be skeptical of the system's
norms, might wonder why they ought to be blamed, and hence punished,
more than participants in other sorts of illegal markets. The first point
shows how tempting differential enforcement is. The second point sug?
gests how unlikely it is to succeed.
B. The Cost of Policing
Enforcement of consensual crimes always raises serious resource allo-

cation questions. Because the crimes are consensual, the police do not
receive reports of crimes when they happen. In order to catch the
criminals, the police must seek them out; they must look for the crime,
not merely respond to it. Because the criminal transactions involve goods
or services that many people want (and again, because they are consen?
sual and therefore difficult to find), there are a lot of crimes. Even in the
days when gambling was taken seriously by some prosecutors, many more
gambled than burglarized homes; today there are far more illegal
people
purchases of cocaine than there are car thefts. So not only must the po?
lice look for the crimes, they must decide where to look, in a world where
the crimes are happening everywhere. It follows that, far more than
when the police enforce the laws against burglary or auto theft, when
they enforce the drug laws, whom they catch depends on where they
look.
55. See, e.g., Wickersham Commission, supra note 8, at 130-31 (separate statement
of Commissioner William S. Kenyon).
56. Randall Kennedy reports that "about half of the Congressional Black Caucus
supported the legislation that established the extreme crack/powder differential,
including Charles Rangel, representative from Harlem and then-chair of the House Select
Committee on Narcotics Abuse and Control. See Randall Kennedy, Race, Crime, and the
Law 301 (1997).
This is worthemphasizing, because it is very different from the ordi?

nary posture of criminal law enforcement. Criminal investigation?the
process of catching people who have committed offenses in the past, and
building an evidentiary case that allows the state to prosecute them?
tends by its nature to be reactive. Crime prevention?establishing a public
police presence in areas where crimes are likely to occur?has the oppo-
site tendency. For most crimes, the line between investigation and pre?
vention is a real one, even if the two activities sometimes merge. The
local police department may allocate street patrols in a way that is
designed to minimize criminal opportunities in particular neighbor?
hoods, but when the police are seeking to solve past crimes, the geo-
graphic allocation is done by the criminals, not by the police, for the
police must go where the crimes happened. For drugs, as for other con?
sensual crimes, the investigation/prevention distinction breaks down al-
together. Drug investigations are much more commonly police-initiated
than other sorts of criminal investigations, since there is no crime victim
to initiate them. And initiating investigations means targeting either par?
ticular places or particular people. Once again, whom the police catch
depends on where, or at whom, they look.
Looking in poor neighborhoods tends to be both successful and

cheap. Criminal markets in poor neighborhoods disproportionately in-
volve either street transactions or transactions at fixed points. More up?
scale criminal transactions tend to be more private, more discreet; the
whole point of the
transacting procedure is to reduce the likelihood of
police intervention.
Thus, the allocative question for police departments
is whether to send officers to places where drug crime is both plentiful
and public, or where it is both scarcer and more private. The question
answers itself.
Or does it? Consider the tactics police must use in attacking differ?
ent sorts of drug markets. When going after street markets, police tend
to do two sorts of things: They engage in lots of street stops, "sweeps,"
and the like; they also use undercover buy-and-busts.57 Each of these tac?
tics is cheap, in the sense that neither requires much police time or ef-
fort. Street stops can go forward with little or no advance investigation.
Responding to a few visual cues?age, sex, race, location, company (who
else is in the vicinity)?is perfectly feasible, and the cues are available
from quick on-the-spot observation. Meanwhile, the stops themselves
consume little time, so the police have no strong incentive to ration them
carefully. The same is basically true of buy-and-busts. The undercover
agent pretends to buy; the seller either sells or doesn't. Again, targets
57. See, e.g., Craig D. Uchida 8c Brian Forst, Controlling Street-Level Drug
Trafficking: Professional and Community Policing Approaches, in Drugs and Crime:
Evaluating Public Policy Initiatives 77, 83-84 (Doris Layton MacKenzie 8c Craig D. Uchida
eds., 1994). Uchida and Forst add a third common police tactic?property seizures?but
that tactic is more likely to be used against crack houses than street markets.
can be selected based on minimal information, and the tactic does not
consume much police time and
energy.
All of which is to say that policing street markets is indeed cheap?
for the police. But there are other costs to these tactics, costs borne not
by police officers but by innocent citizens of the targeted neighborhoods.
Large numbers of street stops based on fairly casual cues mean large
numbers of bad stops as well as good ones.58 (By "good" and "bad" I
mean nothing more than stops that either do or don't correctly identify
participants in the drug trade.) This imposes a very substantial cost on
young men present in places where drug deals are known to take place.
The same point holds of mistaken buy-and-busts, which work only if the
undercover agent looks and acts like a buyer. When the target of the buy-
and-bust turns out not to be a seller, the effect of the undercover agent
on the community's street life is no different than the effect of a real
buyer publicly seeking drugs. Both the real buyer and the fake one send
the signal that those who engage in drug transactions own the street.
Now consider the kinds of police tactics that must be used against
more upscale drug markets. Because those markets are more secretive,
the police must do more work to get inside them, making heavy use of
both informants and undercover agents?but not the kind of undercover
agents involved in buy-and-busts. Undercover agents who penetrate up?
scale markets consume a lot of police man-hours; they also expose them?
selves to real danger, for they are constantly at risk of being discovered.
Generating and maintaining informants is cheaper, but not cheap, for
the informants are really undercover agents themselves; they frequently
are on the public payroll, and they often require a significant amount of
police management in order to provide useful information. Finally, in
order to exploit such information, the police often must search dwellings
or other enclosed structures for the drugs. Searches of closed structures
usually require warrants.59 And warrants usually mean effort and delay?
58. Consider the following description of drug sweeps conducted by New York police,
and reactions to them, in the early 1990s:
[T]he officers would cordon off both ends of a street and require everyone in
between to lie down, regardless of who they were. While this tactic sometimes
yielded a handsome number of arrests, it also obliged elderly grandmothers and
young children to grovel on the asphalt while being roughly searched?and it
enraged many residents.
Richard Curtis, The Improbable Transformation of Inner-City Neighborhoods: Crime,
Violence, Drugs and Youth in the 1990s, 88 J. Crim. L. 8c Criminology (forthcoming 1998)
(manuscript at 18, on file with the Columbia Law Review).
59. Nominally, the Fourth Amendment's warrant requirement applies to all searches
and seizures, save for those that fall within certain specified exceptions. In practice, the
exceptions?which cover, inter alia, cars, street stop-and-frisks, arrests outside private
dwellings, and searches incident to arrest?cover pretty much all searches and seizures
outside homes. See William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 Va.
L. Rev. 881, 920-22 (1991). House searches, though, are still very much covered, so that
even when officers are responding to a shooting or investigating the scene of a murder,
they may at most conduct a cursory examination; any significant searching must be
hours spent preparing the relevant papers and sitting around a court-
house waiting for a magistrate to act on the application.60
These tactics impose heavy costs on the police.61 Interestingly, they
probably impose very low costs on innocent citizens. Informants are usu?
ally reliable, as the data on warrants obtained through informants' tips
show.62 Undercover agents who infiltrate criminal enterprises produce
very good information. And searches pursuant to warrants are astonish-
ingly successful: The best study of the issue shows a success rate in excess
of eighty percent.63
The two sets of police tactics are mirror images of each other. One is
cheap for the police but relatively expensive for the local citizenry; the
other is expensive for the police and cheap for the citizenry. If both sorts
of cost were internalized by the police, we would probably still see an
emphasis on drug markets in lower-class neighborhoods. But the empha?
sis would be weaker than it is now.
The law of search and seizure only aggravates this tendency. That
law goes far toward determining which police tactics are expensive for the
police and which ones are cheap, by imposing substantive and procedural
limits on some tactics but not others. In this context, four rules are key.
The first is longstanding and uncontroversial: Searches of private dwell-
ings require serious justification?probable cause, not some lesser stan?
dard?adjudicated by a neutral magistrate before the search takes
place.64 The second is similarly uncontroversial, though less longstand?
ing: Wiretaps and other sorts of electronic eavesdropping also require
serious justification and ex ante review.65 The third rule governs consent;
basically, street encounters are consensual for Fourth Amendment pur-
preceded by a warrant. See, e.g., Arizona v. Hicks, 480 U.S. 321 (1987); Mincey v. Arizona,
437 U.S. 385 (1978).
60. See Richard Van Duizend et al., The Search Warrant Process: Preconceptions,
Perceptions, Practices 19-26 (1985).
61. As Donald Dripps has noted, this may be the source of warrants' biggest incentive
effect: Since the police must go to substantial time and trouble to get warrants, officers are
likely to want to be sure that the resulting searches will be successful. See Donald Dripps,
Living with Leon, 95 Yale LJ. 906, 926-28 (1986).
62. In a study of the search warrant process in seven jurisdictions, the authors found
that the jurisdictions that most frequently relied on confidential informants in warrant
applications also had the lowest failure rates in searches pursuant to warrants. See Van
Duizend et al., supra note 60, at 34 tbl.15, 39 tbl.22.
63. In the seven jurisdictions studied, the success rates ranged from 77% to 91%. See
id. at 39 tbl.22. Even measured by whether the search uncovered a majority of the items
listed in the warrant application (not just some such items), the success rates were high,
ranging from 64% to 82%. See id.
64. See supra note 59. It is no coincidence that the leading Supreme Court cases on
the definition of probable cause involve searches of dwellings or other enclosed structures.
See Illinois v. Gates, 462 U.S. 213 (1983); Spinelli v. United States, 393 U.S. 410 (1969);
Aguilar v. Texas, 378 U.S. 108 (1964).
65. This is true both as a matter of constitutional law, see Berger v. New York, 388 U.S.
41, 54-56, 58-60 (1967), and according to federal statute, see Title III of the Omnibus
Crime Control and Safe Streets Act of 1968, 18 U.S.C. ?? 2515-2518. The chief exception
poses whenever the level of coercion

is no greater than is inherent in any
police-suspect encounter on the street.66
(This resolves into a kind of
"Jeopardy" rule: If the officer approaches the suspect and puts the com-
mand to empty his pockets in the form of a question, the resulting search
is consensual.) The fourth rule covers nonconsensual street encounters;
it holds that the police may briefly detain people based on some suspi?
cion of crime, but much less than probable cause.67
All these rules are defensible; perhaps all are right. But they are
hardly neutral. Restrictions on house searches and electronic eavesdrop-
ping make it impossible for the police to do dragnet-style investigations of
upscale drug markets. They must instead use tactics that involve exten-
sive information-gathering as a prerequisite to searching for and seizing
drugs. On the other hand, the lax definition of consent makes it easy for
the police to initiate street encounters based on very littie suspicion, for
the law says that they need none. Often the search that nails the suspect
is itself "consensual," and so requires no advance information-gathering
at all. Even where the encounter falls outside the generous bounds of
consent, the rule for street stops means the police need no more than the
sorts of information they can obtain through quick observation. To a
significant degree, the law forces the police to investigate upscale crimi?
nal markets in ways that minimize the costs to bystanders, while giving a
green light to very different tactics in downscale markets.
This is an aspect of a larger pattern in Fourth Amendment law: the
heavy focus on individual privacy, on the ability to keep secrets. Freedom
from police coercion plays a decidedly secondary role. (Searches of
houses are regulated more heavily than seizures of people, and the scope
of permissible police violence is the subject of much less law than the
scope of permissible car searches.68) And the privacy Fourth
Amendment law protects is not the privacy courts decide we ought to
is the "wiring" of undercover agents, which requires neither probable cause nor ex ante
review. See United States v. White, 401 U.S. 745 (1971).
66. This is my formula, not the courts', but it captures the cases fairly well. Thus,
there is no impediment to a police officer approaching a citizen in public and asking some
questions?which is deemed a presumptively consensual encounter, see Florida v. Bostick,
501 U.S. 429 (1991), even though ordinary citizens surely treat such conversations as
mandatory. For a discussion of the cases governing consent, see 3 Wayne R. LaFave,
Search and Seizure ?? 8.1, 8.2 (1996). For a discussion of the closely related question
whether a suspect has been "seized" for Fourth Amendment purposes, see 4 id. ? 9.3.
67. The leading case is Terry v. Ohio, 392 U.S. 1 (1968). Terryarose out of a police
officer's effort to prevent a crime that had not yet happened. In United States v. Hensley,
469 U.S. 221 (1985), the Supreme Court held that officers could make brief street stops
based on suspicion of past crimes as well.
68. Seizures of persons do not require warrants, United States v. Watson, 423 U.S. 411
(1976), while searches of dwellings do. See supra note 59. The law governing police use of
excessive force is both thin and unhelpful, while the law governing car searches is both
enormous and detailed. These points are elaborated in William J. Stuntz, Privacy's
Problem and the Law of Criminal Procedure, 93 Mich. L. Rev. 1016, 1023-24, 1065-68
(1995).
have vis-a-vis the government. Rather, it is the privacy we do have vis-a-vis

our fellow citizens.69 Existing social arrangements define the Fourth
Amendment baseline. This proposition has large distributive conse?
quences, for people with money enjoy more privacy than people without.
They live in freestanding houses and own more land; they conduct less of
their lives in public spaces like the neighborhood streets. Fourth
Amendment law accordingly gives them greater protection. In short,
Fourth Amendment law both focuses heavily on an interest (privacy) that
is of particular value to wealthy people and protects that interest in ways
that favor those same people.
Marry this pattern in Fourth Amendment law to the character of dif?

ferent sorts of drug markets, and one gets a kind of policing that requires
individualized suspicion for some classes of drug suspects but not others.
Informants and search warrants are common in one kind of illegal mar?
ket, street sweeps in another. Where street stops and sweeps are com?
mon, where individualized suspicion is not
required (or where the re-
quirement is sufficiently gentle that it is easily met), citizens uninvolved
in criminal activity will often be the targets of police attention. The
targeting, in turn, will inevitably be based on a short list of factors, most
of them demographic. Young males in the wrong places with the wrong
ethnicity will be suspects as a matter of course, because race, age, gender,
and location are the most plausible easily administered cues for identify-
ing suspects.
The problem is not, as some would have it, that the police are too
quick to use "profiles" when identifying drug suspects. Given the nature
of both street-level policing and downscale drug markets, they could
hardly do otherwise: How else is one to identify plausible candidates for
street stops than by a set of readily observable visual cues? Nor is it that
such profiles often include race, at least tacitly. That too is inevitable:
Local distribution networks are often monoracial; downscale markets are
often neighborhood-based; and downscale urban neighborhoods are
often segregated. The problem is that other, more upscale markets are
policed very differently, with smaller costs imposed on (typically white)
innocents. The law and practice of drug enforcement is market-specific,
and the markets are divided by race and class.
69. The Supreme Court's decisions in two "beeper" cases make the point. In United
States v. Knotts, 460 U.S. 276 (1983), the Court found no reasonable expectation of privacy
infringed?meaning that the Fourth Amendment did not apply to the relevant police
behavior?where the police used an electronic device to track a suspect's movements on
public streets. In United States v. Karo, 468 U.S. 705 (1984), the Court concluded that a
reasonable expectation of privacy was infringed by the tracking of barrels of chemicals
within a private dwelling. The distinction turned on what ordinary citizens might have
seen had they been trying to track Knotts's movements or Karo's barrels. Because any of us
might have seen Knotts's movements, the police were entitled to do so as well, with no
justification required. That was not so for Karo's chemicals, which were not visible to the
public.
III. The Consequences of Bias
Because street markets in crack are seen, plausibly, as causing more

harm than most other drug markets, crack possession and crack dealing
are punished more severely than the buying and selling of other drugs.
Because the police can more easily attack illegal street markets than other
sorts of illegal markets, the crack trade has also generated more than its
share of police stops and arrests. And because street markets for crack
are concentrated in poor black communities, a disproportionate number
of those arrests and sentences have been imposed on blacks. One need
not assume racism to explain these phenomena. On the contrary, we
might easily have seen the same law enforcement patterns we have seen
over the past dozen years in a society in which racial division did not exist.
But in a society where racial division is all too real, decisions that have no
racial cause may still have a very powerful racial meaning.
That meaning could have devastating consequences. A substantial
part of the cost of lawbreaking to lawbreakers is psychic or cultural: It
depends on norms and signals, on the pain people suffer when they vio?
late norms they accept and when they do things that cause their neigh-
bors and friends to look down on them.70 To the extent that criminal law
reflects or shapes popular norms, that law makes not only tangible
threats?violate these rules and you go to prison?but intangible ones as
well?violate these rules and you suffer the disrespect of your neighbors
(not to mention the pangs of conscience, which may be closely related to
neighbors' disrespect).
Note that the law's intangible threats must be particularly important
when dealing with lower-class offenders, because the tangible threats are
likely to be less painful to them. Prison terms are likely to hurt more for
people who have lost more than for people who have lost less (because
they had littie to begin with). Then too, if prisons are populated by par?
ticular population groups (for example, lower-class black men), offend?
ers who belong to those groups will likely find prisons relatively more
comfortable places than offenders who do not. That suggests an impor?
tant point: Not only does the power of tangible punishment differ across
groups of offenders, it tends to decline as it is imposed more often.
So the intangible penalties associated with criminal conviction are a
valuable social asset, especially when dealing with the crimes of the poor.
70. There is a large and growing literature on the relationship between social norms
and compliance with the criminal law. For two excellent recent discussions, including
analyses of the social science literature on this subject, see Richard H. McAdams, The
Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338, 398-408 (1997);
Paul H. Robinson &John M. Darley, The Utility of Desert, 91 Nw. U. L. Rev. 453 (1997).
For the classic discussion of the link between the law's normative force and the perceived
legitimacy or fairness of the justice system, see Tom R. Tyler, Why People Obey the Law
(1990). For discussion of the relationship between individual criminal behavior and the
incidence of crime in the offender's community, see Dan M. Kahan, Social Influence,
Social Meaning, and Deterrence, 83 Va. L. Rev. 349, 352-61 (1997).
Now consider the effect of the tendency toward more aggressive policing
and punishment of drug crime in poor urban neighborhoods than else?
where. For most purposes, people seem to take criminal conviction as a
good surrogate for violation of the kind of moral and social norms that
would trigger serious loss of esteem.71 And for most purposes it is a good
surrogate. But if the government uses its authority to criminally punish
in ways that strike a given community as unfair?and discrimination
against any community would tend to strike that community as unfair?
criminal conviction ceases to be much of a surrogate for loss of esteem.72
The law's intangible penalties lose their force, and the effective price of
drug crime declines.
This explains why it is impossible for the legal system, or the culture
for that matter, to sustain a norm that a given behavior (e.g., divorce, out-
of-wedlock parenting, drug use) is appropriate for some communities but
not for others. Such norms are, in one sense, both useful and proper.
Drugs or alcohol may be fairly safe when consumed by some people but
not by others, just as some people are well positioned to raise and support
a child by themselves and others are not. But even if proper, acceptance
of such norms requires people to internalize a message that ordinary ex?
perience suggests most of us are simply unwilling to internalize: Behavior
that is all right when you do it is wrong?not just inappropriate (that
wouldn't be much of a norm), but wicked?when / do it. This problem
must be particularly severe when dealing with consensual behaviors that
cause no direct, tangible harm to third parties. Norms against conduct of
that sort are likely to be fragile anyway. The perception that the system is
enforcing the norms differently with different groups is bound to have
significant consequences for how those groups view the norms, and how
those groups view the law.
When it comes to drugs, those consequences probably already exist.
Recall a pair of patterns one finds in survey data that measure opinion
both about the criminal justice system and about drugs. Sixty-six percent
of black citizens regard the criminal justice system as racist; 72% believe
the police treat black suspects worse than white ones.73 These numbers
are essentially unchanged in the past twenty years, though there is evi?
dence that the level of white racism has declined significantly during that
71. See Tyler, supra note 70, passim. As Robinson and Darley note, ours is a society
where other surrogates do not exist: "Unlike many other societies, we share no religion or
other arbiter of morality that might perform this role. Our criminal law is, for us, the place
we express our shared beliefs of what is truly condemnable." Robinson 8c Darley, supra
note 70, at 474.
72. Cf. Tyler, supra note 70, at 19-68 (analyzing the effect on compliance with the law
of the perception that the law is illegitimate or unfair); Robinson 8c Darley, supra note 70,
at 477-88 (analyzing the effect on the law's moral credibility of criminalization of conduct
that the public does not see as seriously wrong).
73. See supra note 6.
period.74 Meanwhile, blacks in general, and poorly educated blacks in

particular, are substantially more likely than whites to oppose aggressive
drug enforcement and heavy drug punishment.75 If low levels of educa?
tion are correlated with poverty, this suggests that residents of poor, heav-
ily black urban neighborhoods are much more hostile than the popula?
tion as a whole to the way the police and the courts deal with drug
enforcement.
That much suggests that the conditions for a decline in the intangi?
ble force of the drug laws in poor big-city neighborhoods are present.
Two other points suggest that the decline is underway. A decade ago, in
the early days of the crack trade, big-city prosecutors found it extremely
hard to get convictions in drug-related homicide cases.76 A natural con?
clusion is that witnesses were often unwilling to bear the risk of retalia-
tion, and jurors often unwilling to convict, in cases where the murder
victim was himself involved in drug trafficking. Today, we find anecdotal
evidence of juries refusing to convict drug defendants themselves, partly
on the ground that doing so would send yet another black man to
prison.77
74. For a variety of measures of declining white racism since the 1970s, see Stephan
Thernstrom 8c Abigail Thernstrom, America in Black and White 228 tbl.12 (1997)
(showing more favorable attitudes toward living in integrated neighborhoods); id. at 521
tbl.l (showing growth in percentage of whites who list blacks as friends, good friends, and
dinner guests); id. at 524 tbl.2 (showing growth in white support for interracial marriage);
id. at 525 tbl.3 (same for interracial dating).
75. Cf. Meares, supra note 5, at 145.
76. In the course of a detailed report on the processing of homicide cases in
Baltimore, the Baltimore Sun listed and categorized all homicide cases for 1988 in which
charges were filed, not counting juvenile defendants, successful insanity claims, or cases in
which the government concluded charges had been wrongly filed. See David Simon 8c M.
Dion Thompson, Getting Away With Murder in Baltimore, Baltimore Sun, June 23, 1991,
at 1A; Murder Docket, Baltimore Sun, June 23, 1991, at 8A. In non-drug-related killings,
the government achieved the following outcomes: 65 guilty pleas (including 7 suspended
sentences), 20 convictions at trial, 15 acquittals at trial, 16 cases where charges were
dismissed, and 4 cases that fit none of those categories. In killings associated with the drug
trade, defendants did vastly better; these cases produced 13 guilty pleas (including 1
suspended sentence), 13 convictions at trial, 10 acquittals, 19 dismissals, with 2 cases not
easily categorized. See id. Note that in non-drug-related cases, the number of guilty pleas
plus convictions at trial was nearly triple the number of acquittals plus dismissals. In drug-
related cases, acquittals plus dismissals exceededguilty pleas plus trial convictions.
77. Refusal to convict need not mean acquittal; the more common phenomenon is
one or two juror "holdouts" who produce a hung jury in a case that seems clearly to call for
conviction. See Jeffrey Rosen, One Angry Woman: Why Are Hung Juries on the Rise?,
New Yorker, Feb. 24 8c Mar. 3, 1997, at 54. Rosen notes that this holdout phenomenon
raised the proportion of hung juries in the District of Columbia from 5% in 1991 to 13%
by 1996. See id. at 55. He goes on to recount a series of cases in which that phenomenon
has operated; unsurprisingly, many of the examples involved drug charges against black
defendants. See id. at 59-63. Interestingly, the holdouts in the cases Rosen recounts were
typically black women.
Not everyone agrees that there is a rise in jury nullification (or in the holdout
phenomenon that Rosen observed, which is really a version of jury nullification). As Neil
Vidmar and several co-authors note, jury conviction rates have been either stable or slighdy
The second point concerns the relationship between levels of crime

and the prison population. The past two decades have seen an extraordi-
nary increase in imprisonment: Between 1980 and 1996, the number of
persons incarcerated nationwide increased 250%.78 We have also, for the
past several years, seen a significant drop in crime. Between 1991 and
1996, the number of FBI index crimes?basically, serious non-drug felo-
nies?dropped 9%.79 But that 9% drop only returned us to the level of
non-drug crime we had in 1980,80 when we had substantially less than
one-third the prison population we have today. Those statistics might
suggest that the crime drop we have experienced in the 1990s is due in
part to the effect of incapacitating so many criminals?that, in other
words, the threat of criminal punishment is not having the effect it once
did, or else our huge increase in punishment would have more
powerfully affected the behavior of those young men left on the streets.
Tangible penalties still work, after a fashion. But mtangible penalties ap-
pear to have declined steeply, and in high-crime neighborhoods they may
approach zero.
rising in recent years?not falling, as one would expect if jurors were refusing to convict
with greater frequency. Neil Vidmar et al., Should We Rush to Reform the Criminal Jury?,
80 Judicature 286 (1997). Jury conviction rates are, however, subject to a host of
influences, so that it is quite plausible to believe that both conviction rates and the
incidence of nullification or hungjuries are rising. The percentage of cases with indigent
defendants has risen sharply in the past two decades; as a consequence, per-case spending
on indigent defense has declined substantially?even while prosecutorial resources have
continued to rise. See William J. Stuntz, The Uneasy Relationship Between Criminal
Procedure and Criminal Justice, 107 Yale LJ. 1, 8-10 8c nn.8-19 (1997). Those trends,
which add up to a sharply greater resource imbalance between prosecution and defense,
would naturally tend to produce sharply higher conviction rates. The real surprise, then,
may be Vidmar's finding that conviction rates have been either flat or only slightly higher
over the past decade. Perhaps part of the reason is increasing jury skepticism of the sort
that Rosen reported.
78. The total inmate population in 1980 was 466,371. See Cahalan, supra note 2, at
195 tbl.8-4. By mid-year 1996, that figure had risen to 1,630,940. See 1996 Sourcebook,
supra note 4, at 510 tbl.6.11.
79. In 1991, the FBI recorded 14.9 million index crimes; by 1996 that number had
fallen to 13.5 million. See Federal Bureau of Investigation, U.S. Dep't of Justice, Crime in
the United States?1996: Uniform Crime Reports 62 tbl.l (1997) [hereinafter Uniform
Crime Reports 1996].
There is a running dispute in the literature about the relative merits of the Uniform
Crime Reports, which measure crimes reported to the police, and victimization surveys,
which are based, as the name suggests, on surveys of potential crime victims. For a good
discussion of the virtues and vices of each measure, see James Q. Wilson 8cJoan Petersilia,
Introduction, in Crime 3, 5-6 (James Q. Wilson & Joan Petersilia eds., 1995). I use the
Uniform Crime Reports measure because, as Richard Freeman notes, it corresponds better
to the change over time in crimes for which we have reliable alternative measures, such as
homicide or automobile theft. See Richard B. Freeman, The Labor Market, in Crime,
supra, at 171, 173-75.
80. The number of index crimes recorded in 1980 was 13.4 million, slightly lower
than the number for 1996. See Uniform Crime Reports 1996, supra note 79, at 62 tbl.l.
All these phenomena?the apparent rise in juror holdouts in drug

cases, the
disproportionate opposition of lower-class blacks to drug en?
forcement, the persistence of perceived racism in a context where the
actual level of racism is probably falling, the seeming decline of the threat
value of punishment among young men in high-crime urban communi?
ties?point to the conclusion that enforcement bias is undermining the
normative force of the drug laws, and perhaps undermining the norma?
tive force of the criminal law as a whole. Of course, that conclusion is
hardly proved; one could offer a variety of explanations for each of the
phenomena discussed in the last few paragraphs. But the general pattern
is at least suggestive. We seem to be living in a time when the criminal
justice system's intangible threats are losing their punch. And we are
clearly living in a time of enormous racial polarization in attitudes toward
the system. The public reaction to the O J. Simpson litigation81 suggests
either a stunning degree of white complacency or a stunning degree of
black suspicion. Either way, the message seems to be that black citizens
are no less, and perhaps more, alienated from the criminal justice system
than a generation ago. The likeliest explanation is drug policy, and drug
enforcement.
If so,
it is not the first time something like this has happened.
Contemporary observers noted a strong pattern of enforcing Prohibition
against lower-class markets but not upperclass ones. This was true in the
South, where enforcement tended to focus on blacks.82 It was also true in
Northern cities, where the pattern was to leave upscale drinking mostly
alone, while police concentrated their efforts on working-class distribu?
tion networks.83 Those working-class networks had a strong ethnic and
religious cast; of them
many were dominated by Irish and Italian
Catholics. Couple that evidence with the sharp rise in hostility to
Prohibition in the cities during the 1920s, and the eventual collapse in
enforcement toward the end of that decade, and the picture is fairly
clear: Differential enforcement came to lack all moral credibility, and
collapsed.
The history of prostitution enforcement has echoes of the same phe?
nomenon. Throughout the late nineteenth and early twentieth centu-
81. In one poll conducted in early 1997, after both the criminal and civil Simpson
trials, 82% of whites believed Simpson guilty, a view held by only 31% of blacks. See Peter
S. Canellos, Two Trials, Two Verdicts, Many Theories: Debates on Simpson Still Focus on
Race, Boston Globe, Feb. 6, 1997, at Al.
82. For one contemporaneous study that reached this conclusion, see Bruere, supra
note 38, at 112-13. Bruere also found that blacks were disproportionately involved in
liquor distribution. See id. at 293-95.
83. See, e.g., id. at 194 (reporting discussion of one social worker of enforcement in
one Ohio city: "In the foreign districts there were raids and fines, but I never remember a
single raid on an uptown cellar." (internal quotation marks omitted)). See also
Warburton, supra note 14, at 245-46 (concluding, based on study of consumption levels
by class, that enforcement of Prohibition consisted mainly of an effort to "reduc[e] the
consumption of beer by the wage-earning class").
ries, urban police forces periodically came under pressure to stamp out
prostitution altogether. When the pressure became substantial enough, a
crusade to eradicate the business followed. These crusades tended to be
brief; they generated their own opposition, a "silent army" of customers
who demanded a return to a more tolerant policy.84 The typical outcome
was a return to enforcement aimed solely at lower-class street prostitu?
tion.85 This more ordinary enforcement pattern often was accompanied
by under-the-table public health regulation, and sometimes by under-the-
table taxation?in St. Paul in the 1870s, the leading house paid the city
treasury several thousand dollars per year in exchange for the city's
forbearance.86
One might draw the same lesson from the waxing and waning of
prostitution enforcement as from the collapse of Prohibition. Across-the-
board enforcement of consensual crimes works only if there is broad mid-
dle- and upper-class support. Targeted criminal enforcement, enforce?
ment aimed at lower-class violators, is unsustainable. Thus, with alcohol,
lack of enforcement against upscale violators arguably led to the collapse
of enforcement elsewhere. With prostitution, the abandonment of each
occasional crusade led to a kind of de facto civil regulation, with police
acting more as zoning and health regulators than as criminal law
enforcers.
Drugs today present an interesting twist on this pattern. Middle-class

support for drug criminalization is plainly high, so much so that it is un-
thinkable for ambitious politicians to talk seriously about the possibility of
84. See Lawrence M. Friedman, Crime and Punishment in American History 331
(1993).
85. On the general pattern of low-level enforcement targeted at lower-class prostitutes
punctuated by occasional anti-vice crusades, see id. at 226-28, 328-32; Sidney L. Harring,
Policing a Class Society: The Experience of American Cities, 1865-1915, at 191-95
(1983). For a good, brief description of the normal enforcement pattern, with its
emphasis on keeping prostitutes away from "respectable residential neighborhoods," see
Mark H. Haller, Historical Roots of Police Behavior: Chicago, 1890-1925, in 5 Crime and
Justice in American History: Policing and Crime Control, pt. 1, at 244, 257 (Eric H.
Monkkonen ed., 1992):
The police sometimes arrested streetwalkers; periodically they raided sporting
houses that robbed customers or held young girls against their wills; and, to avoid
upsetting respectable citizens, they removed houses from streetcar lines and tried
to prevent naked girls from leaning out of windows to advertise their charms. But
the police seldom bothered well-run brothels or interfered with soliciting in bars
or second-class hotels.
86. See Joel Best, Keeping the Peace in St. Paul: Crime, Vice, and Police Work,
1869-74, in 5 Crime and Justice in American History, pt. 1, supra note 85, at 60, 73. The
more ordinary form of taxation was graft: In turn-of-the-century Adanta, several houses of
prostitution were allegedly owned by "a prominent police commissioner." See Eugene J.
Watts, The Police in Adanta, 1890-1905, in 5 Crime and Justice in American History, pt. 3,
supra note 85, at 908, 917.
legalization.87 This makes drugs different from the system's past forays
into the criminalization of consensual transactions. But, for reasons
explained above, there remains a significant tilt against downscale mar?
kets, which tends naturally to undermine criminal deterrence. Here,
though, the system has responded not by abandoning enforcement as in
Prohibition or retreating to civil-style regulation as with prostitution, but
by ratcheting up both enforcement and punishment. In 1985, state and
federal prisons held 48,000 drug offenders. By 1995 that number had
reached 277,00088?a number that exceeds the entire state prison popu?
lation of 1980, and exceeds by a wide margin the combined state and
federal prison population of 1970.89 (These figures do not include the
jail inmate population. If a comparable percentage of jail inmates are
incarcerated for or awaiting trial on drug offenses, the total drug inmate
population in 1995 exceeded 400,000.90) The same period has seen a
growing percentage of urban blacks in the prison population, a natural
consequence of the targeting of crack: One early 1990s study found that
black defendants suffered 55% of drug convictions and 74% of prison
sentences in drug cases.91
Consider how healthy the urban drug trade is, notwithstanding those
numbers.92 The point is not that deterrence doesn't work. Obviously it
does, to some degree?we have, after all, seen significant drops in both
drug and non-drug crime. But given the sheer volume of incarceration,
the declines have been surprisingly small. That may be because greater
87. Kurt Schmoke, the Mayor of Baltimore, is the most famous exception to this rule.
See Kurt L. Schmoke, Foreword to Steven B. Duke & Albert C. Gross, America's Longest
War: Rethinking Our Tragic Crusade Against Drugs xi, xi-xiii (1993).
88. See Correctional Populations in the United States, supra note 2, at 9 tbl.1.11, 11
tbl.1.13.
89. The state prison population in 1980 was just over 261,000. The combined state
and federal prison population in 1970 was just under 199,000. See Cahalan, supra note 2,
at 29 tbl.3-2.
90. The jail population in 1995 was 499,000. See Correctional Populations in the
United States, supra note 2, at iii. That year, 26% of prison inmates, state and federal, were
incarcerated on drug charges. See id. at 9 tbl.1.11, 11 tbl.1.13.
91. See Marc Mauer & Tracy Huling, Young Black Americans and the Criminal Justice
System: Five Years Later 12 (1995). On the relationship between the growing racial
disproportion in the prison population and drug policy more generally, see Tracey L.
Meares, Social Organization and Drug Law Enforcement, 35 Am. Crim. L. Rev. 191,
198-201, 205-08 (1998); sources cited supra note 2.
92. See National Institute of Justice, 1997 Annual Report on Adult and Juvenile
Arrestees (July 1998). This Justice Department report collected and analyzed data on drug
use by arrestees in 23 major metropolitan areas. The report concluded, inter alia, that
"[m]any cities . . . are seeing an easing of a devastating crack cocaine epidemic," id. at 4,
and that older arrestees are testing positive for cocaine at significantly higher rates than
younger arrestees, see id. at 1.
That sounds like good news. But in 9 of the 23 cities studied, the report found that
50% or more of black arrestees tested positive for cocaine. In 6 of the other 14 cities, the
report found a rising percentage of cocaine use among arrestees aged 15-20. See id. at
15-60. A fair inference is that where cocaine use is falling, it is falling from extremely high
levels, and where the level is not extremely high, cocaine use may be rising, not falling.
tangible punishment is serving mostly to compensate for a decline in the

intangible kind.
So we find ourselves in the midst of a vicious circle. The system
targets drug markets in poor city neighborhoods because those markets
do grave social harm, and because the police find it relatively easy to at-
tack them. That targeting tends to undermine the normative power of
the drug laws among the young men in poor city neighborhoods. The
undermining is made more severe because many of the neighborhoods,
and hence many of the young men, are black. The system responds by
raising both the frequency and level of punishment as a way of maintain-
ing criminal deterrence. That in turn raises the proportion of young
black men in prison, which reinforces the perception that the system is
not being even-handed. Which undermines the law's normative power
even more.
IV. Lessons
I have tried to explain why, even in a world in which legislators,

judges, and police officers are largely free from racism?indeed, even in
a world in which those actors genuinely seek to better the lot of residents
of poor minority neighborhoods?one would still see phenomena like
differential enforcement for crack and cocaine powder, or the use of
(partly) race-based profiles and street sweeps in poor black neighbor?
hoods but not in upscale white neighborhoods. The nature of the rele?
vant criminal markets, the different costs of enforcement in those differ?
ent markets, and the different social costs associated with the relevant
criminal activity all push toward precisely these phenomena.
The point is actually stronger. We have a good deal of experience
with thoroughgoing, unambiguous racism in the management of a crimi?
nal justice system, so we know what fundamentally racist systems look like.
Their most salient feature is not overenforcement and overpunishment
of black crime. On the contrary, the normal pattern in Jim Crow days was
wnd^renforcement. South Carolina in 1950 had a population that was
nearly 40% black,93 and its black population was probably considerably
poorer than its white population, meaning that the level of black crime
was probably higher than the level of white crime. Yet more than two-
thirds of the state's imprisoned felons were white.94 The obvious expla-
93. See Bureau of the Census, U.S. Dep't of Commerce, Statistical Abstract of the
United States?1953, at 36 tbl.25 [hereinafter 1953 Statistical Abstract] (showing a black
population of 822,077 out of a total population of 2,117,027).
94. See Federal Bureau of Prisons, National Prisoner Statistics: Prisoners in State and
Federal Institutions?1950, at 55 tbl.21 (1954). South Carolina's numbers are extreme,
but the phenomenon they represent is common. In the South as a whole in 1950 (defined
here as the former Confederacy, with Georgia excluded because complete data were not
available), 24% of the population was black, and 44% of incarcerated felons were black.
Jim Crow plainly kept that disproportion down: In the Northeast, 5% of the population but
29% of incarcerated felons were black. See id.; 1953 Statistical Abstract, supra note 93, at
nation is that South Carolina's law enforcement apparatus cared littie

about crime in blackneighborhoods, which is where most crimes com?
mitted by blacks would have taken place. The Baldus Study, which
looked at Georgia death penalty cases from the mid-1970s to the early
1980s, famously shows the same sort of effect: Baldus and his colleagues
detected a significant bias, not against black defendants, but against im-
posing the death penalty in cases with black victims.95
This point is by now well known, but its implications for phenomena
like the crack/powder controversy have not been fully internalized. Con-
scious, dedicated, unsubtle racism always has a tendency to produce not
too much law enforcement but too littie.96 Law enforcement is, after all,
expensive; if white voters and white officials devalue the interests of black
citizens, the natural response is to refuse to spend money to protect those
interests. It follows that when we see plausible claims of ov^renforcement
and ov^punishment, we should suspect that we are seeing something
more complicated than racism, something more like a misguided pater-
nalism. Racism may still be an important part of the picture?as David
Sklansky has persuasively argued, one cannot read the Congressional de?
bates about crack sentencing without concluding that racist images of
frightening black men played a significant role in producing the vast
crack/powder sentencing differential.97 But the racism is subtle and sec-
ondary; the dominant motif is not bigotry but something else, something
less malevolent and hence harder to condemn or stamp out.
To say that drug policy is not racist, at least not in the usual sense of
that word, is to begin the argument, not to end it. If the problem were
simple bigotry, the solution would be simple (albeit not easy): Stop being
bigoted. It is a good deal harder to see how best to respond to the mis?
guided paternalism that characterizes contemporary drug sentencing and
drug enforcement.
Broadly speaking, there are three options. Legalization is the most

obvious. Perhaps that is the end point of the progression we've seen with
drugs in the past couple of decades; our experience with alcohol in the
1920s might suggest as much. But the criminalization of drugs has much
broader and deeper support today than did the criminalization of alcohol
then. Genuine across-the-board enforcement of Prohibition might have
been a political impossibility. The public is a good deal more enthusiastic
36 tbl.25. And the disproportion is much greater now than in the Jim Crow South: The
percentage of blacks in the prison population today is four times the percentage of blacks
in the population as a whole. See supra note 1 and accompanying text.
95. See David C. Baldus et al., Comparative Review of Death Sentences: An Empirical
Study of the Georgia Experience, 74 J. Crim. L. 8c Criminology 661, 707-10 (1983).
96. This is the lesson of the most powerful chapter of Randall Kennedy's recent book;
that chapter traces the history of the system's underprotection of blacks, from the time of
slavery forward. See Kennedy, supra note 56, at 29-75.
97. See David A. Sklansky, Cocaine, Race, and Equal Protection, 47 Stan. L. Rev. 1283,
1293-94 (1995).
about drug enforcement today. Whether or not legalization is a good

idea, it is not inevitable,
as it probably was with alcohol.
And it may well not be a good idea. The strongest argument against
our current fixation on drug crime is its central distributive consequence:
a huge, majority-black inmate population in a one-eighth black society.
But legalization might have its own perverse distributive consequences.
Poor urban communities suffer a disproportionate share of the cost of
the drug trade, and though some of that cost is caused by criminalization,
some of it is caused by the drug trade itself. Legalization would, in effect,
abandon those communities to their fate. And there is no blinking that
fate: Legalization would surely reduce the monetary price of drugs,98 and
for buyers and sellers in poor communities, who bear the brunt of crimi?
nal law enforcement now, it would greatly reduce the nonmonetary price,
the risk of arrest and punishment. The combination of lower dollar price
and elimination of that nonmonetary penalty would make drugs not just
slightly cheaper for residents of poor communities, but vastly cheaper.
We do not know what the consequences would be, but an obvious possi?
bility is a very large increase in the amount of drug use. In neighbor?
hoods that already suffer from unemployment, family disintegration, and
non-drug crime, a large increase in drug use might be catastrophic.
The second option is the status quo. We could face up to the costs of
consequentialist class- and race-tilted drug enforcement, and conclude
that those costs are worth bearing. There is a good deal of force to this
position. Crime is down, especially in large cities." Perhaps that is a sign
that incarcerating huge numbers of drug offenders (along with huge
numbers of non-drug offenders) is working. Perhaps it is also an indica-
tion that police departments in places like New York are regaining and
reinforcing their legitimacy in black neighborhoods. Even if drug en?
forcement is in some ways pathological, and even if the pathology tends
to produce a loss of respect for the system among residents of poor black
neighborhoods, it may be possible to recapture the lost respect by
changes apart from drug enforcement. That may be the biggest virtue of
successful community policing?if done right, it has the potential to
cause residents of high-crime communities who feel alienated from the
system to once again buy into it. The more true that is, the more the
system can live with a very strong tilt against crack.
98. A common, though now dated, estimate holds that "[t]he free-market price of
cocaine is probably no more than 5 percent of its present black-market price." James Q.
Wilson, Drugs and Crime, in Drugs and Crime, supra note 17, at 521, 525.
99. On the general decline, see supra note 79 and accompanying text. For an
insightful discussion of the disproportionate decline in large cities (with a focus on
homicide), see Alfred Blumstein 8c Richard Rosenfeld, Explaining Recent Trends in U.S.
Homicide Rates, 88 J. Crim. L. 8c Criminology (forthcoming 1998) (on file with the
Columbia Law Review).
But one should not be too optimistic. Crime may be down, but it is
still high, and it is too soon to tell whether the decline is stable.100 Other
indicators suggest that the price of the system's tendency to target down?
scale criminal markets is growing, not shrinking. Recall that our prison
population has risen 250% since 1980, and we have the same level of non-
drug crime we had then.101 Drug enforcement and drug sentencing may
have already done much to undermine the system's ability to send norma?
tive signals to young men in high-crime neighborhoods. If so, and if that
problem is left unaddressed, we can expect to pay a growing price in the
system's inability to deter other crime?or else a growing price in the
form of ever more prison cells. The status quo strategy is, in short, dan-
gerously close to a belief in the virtues of incapacitating, by incarcerating,
the young male population of high-crime urban neighborhoods. It is not
only a depressing strategy; it is an enormously expensive one.
The third option is the hardest to define with precision. Its essence
is a self-conscious effort to cut against the usual law enforcement strategy:
class-based enforcement in the opposite direction, enforcement targeted
away from rather than toward street markets in poor neighborhoods.
The end is more clear than the means; the goal is to send the signal that
drug crime is taken as seriously when the perpetrators are suburban
whites as when they are urban blacks.
What this goal would mean for sentencing is fairly simple. The dis?
parity between sentences for crack offenses and sentences for cocaine
powder is currently very large, especially in federal cases.102 And in fed?
eral cases, more than 90% of crack defendants are black; for cocaine pow?
der defendants the figure is 27%.103 This is no subtle, indirect tilt against
black drug crime?here, the bias is both direct and highly visible. If
there is anything at all to the proposition that biased enforcement and
punishment undermine the law's normative force, this sentencing dispar?
ity ought to be abolished, or at least dramatically reduced.
Equalizing drug enforcement is more complicated. One possibility, of

course, is a simple pulling back of police resources from poor urban
neighborhoods. This may be the right path to take, though it risks impos-
ing very serious costs on the innocent residents of those neighborhoods.
Certainly the combination of reduced sentences for crack offenses and
reduced police presence?a downsizing of both punishment and polic?
ing?would seem likely, in the near to medium term, to invite more
rather than less crime. And, as Dan Kahan has noted, more crime is self-
100. For one analysis that cautiously predicts a rise in crime over the next decade, see
John J. Donohue, Understanding the Time Path of Crime, 88 J. Crim. L. & Criminology
(forthcoming 1998) (manuscript at 12, on file with the ColumbiaLaw Review) (concluding,
based on long-term demographic trends, that crime rates may rise 1%?1.5% per year over
the next decade).
101. See supra notes 78-80 and accompanying text.
102. See sources cited supra notes 2-3.
103. See Sklansky, supra note 97, at 1289.
reinforcing, since would-be offenders tend to accommodate their behav?

ior to the behavior of those around them.104
This captures the central question the system faces in combating the
effects of bias in policing and punishment: How can we reduce perceived
bias without reducing the level of law enforcement in poor black commu?
nities? The question has no obvious answer, but there are at least two
promising possibilities.
The first is familiar: a sharply increased focus on buyers relative to
sellers.105 Since street markets in black neighborhoods often have only
black sellers but customers of all races,106 that move would tend to lessen
the racial tilt in policing we have seen over the past decade. Targeting
buyers also has an important side effect. Buyers are harder to catch than
sellers; the police must therefore make more of an investment in catching
them.107 That might require an increased police presence in poor neigh?
borhoods. It could be that raising the police presence would simply add
to the perception of bias, but if the police focus shifts from deterring sale
to deterring purchase, that may not be so.
The second possibility involves policing strategies focused not on
drugs but on anti-gang ordinances, loitering laws, and other so-called
"public order" offenses. If the goal is to attack the collateral effects ofthe
drug market, perhaps focusing on those effects directiy?as anti-gang or?
dinances like Chicago's do108?might work better than the system's heavy
focus on drugs. It might also seem less discriminatory: Urban gangs can
104. See Kahan, supra note 70, at 352-61.

105. For the best argument in the literature in favor of targeting buyers more and
sellers, especially "kingpin" sellers, less, see Stephen J. Schulhofer, Solving the Drug
Enforcement Dilemma: Lessons from Economics, 1994 U. Chi. Legal F. 207.
106. For a description of one such market, with an emphasis on the economic
importance of white buyers from outside the neighborhood, see Johnson et al., supra note
17, at 24-25.
107. This is the difficulty with the police tactic Tracey Meares apdy calls "reverse
stings"?the use of undercover drug sellers rather than undercover buyers. See Meares,
supra note 91, at 220-23. Meares argues, correcdy, that reverse stings would lessen the
racial imbalance in drug enforcement. The difficulty is that it is much more expensive to
arrange credible undercover sales than to arrange credible undercover buys. The former
requires not only a seller, but also the various actors who serve as lookouts, runners, and
the like, and it requires a substantial time period to work. (Otherwise, would-be buyers can
simply hang back for a time and wait for fake sellers to close up shop and move on.) The
latter requires only a few minutes, an officer, and an unmarked car.
108. See Chicago, 111.,Municipal Code ? 8-4-015 (1997). The key provision of the
ordinance reads as follows:
Whenever a police officer observes a person whom he reasonably believes to be a
criminal street gang member loitering in any public place with one or more other
persons, he shall order all such persons to disperse and remove themselves from
the area. Any person who does not promptly obey such an order is in violation of
this section.
Id. ?8-4-015(a).
For an insightful, and positive, discussion of the Chicago ordinance, see Meares, supra
note 91, at 224-26.
be targeted wherever they appear; the drug trade tends to be targeted

only for some drugs in some neighborhoods.109 Gangs and the disorder
they bring are much more like other, more traditional crime than like
drug crime: Like robbery but very much unlike cocaine, the gangs are
localized. If appropriate statutes can be crafted, the system can punish
gang behavior across the board, yet still focus on the communities that
suffer most from that behavior.
Of course,crafting the appropriate statutes is hard, which is why laws
that target gangs are under fire in the courts?the constitutionality of
Chicago's ordinance is at issue in the Morales case, now pending before
the Supreme Court.110 The essence ofthe attack, both in Morales and in
the many lower court cases that have preceded it, is vagueness coupled
with a fear (always somewhere near the surface in vagueness doctrine)
that the statutes will be used to discriminate against young black men.111
The attack gets it backward. Street stops under anti-gang statutes are best
seen as a substitute for street-level drug stops and arrests, and drug en?
forcement is already targeted disproportionately toward young men in
poor black neighborhoods. That targeting will not disappear if the anti-
gang statutes are struck down. And targeted drug enforcement may be
much worse than enforcement of anti-gang laws and the like, both be?
cause drug enforcement tends by its nature to be discriminatory in a way
that public order policing need not be, and because drug enforcement is
more likely to be attended by long prison sentences. Statutes and ordi?
nances like Chicago's may be one of the best ways for the system to re?
duce the bias in drug enforcement?and the huge racial tilt in the prison
population?while maintaining or increasing the overall level of police
protection in poor neighborhoods.
To be sure, Chicago-style anti-gang ordinances are no panacea.
Whatever happens in Morales, and regardless of how successful public or?
der policing proves to be, any effort to right the imbalance in drug en?
forcement will necessarily mean a decrease in the number of young men
from poor city neighborhoods being arrested and imprisoned on drug
charges. And any such decrease carries real risks. If there is a problem
109. That may be why residents of Chicago's poor black neighborhoods have tended
to support that city's anti-gang ordinance. Cf. Meares, supra note 91, at 225-26
(attributing black support to absence of substantial incarceration attending enforcement
of ordinance).
110. City of Chicago v. Morales, 687 N.E.2d 53 (111.1997), cert. granted, 118 S. Ct.
1510 (1998).
111. In striking down the Chicago ordinance, the Illinois Supreme Court emphasized
both the indeterminacy (and hence lack of fair notice) associated with terms like "loiter,"
and the potential for discriminatory enforcement that such indeterminacy presents. See
id. at 59-64.
For an insightful discussion of the lower court cases that precede Morales, see
Livingston, supra note 30, at 610-27. For the best discussion in the literature of vagueness
doctrine and its relation to discretion and discrimination, see John Calvin Jeffries, Jr.,
Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 212-19
(1985).
with the system's treatment of crack over the past fifteen years, it is a
combination of overenforcement, overpunishment, and an overemphasis
on urban black neighborhoods. But there is no way to determine pre-
cisely where on the enforcement curve we are situated in those neighbor?
hoods. Reducing enforcement necessarily raises the risk that in worrying
about too much punishment we will provide too littie. And that risk
ought not to be discounted?remember that "too littie" is precisely what
characterizes the most racist regimes. Any move to change the mix of
drug arrests and drug sentences is, to some degree, a leap into the
unknown.
Some things, however, we do know. We know that there is a built-in
bias against some kinds of drug crime relative to others, and that that bias
is normatively problematic in ways most of us tend to ignore. We know
that over the past generation, we have sentenced truly massive numbers
of people to prison for drug offenses, and a disproportionate number of
those people have been involved in the crack trade. We know that those
crack defendants are overwhelmingly black. We know that notwithstand?
ing this sharp rise in the prison population, the urban crack trade is far
from dying out. And we know that a disturbingly large number of blacks
continue to see the system as racist. Some adjustment in the mix of drug
cases, and some change in the relative investments police departments
make in different sorts of crime and different sorts of neighborhoods,
seem at the very least worth serious consideration.
Sadly, that sort of change is hard to imagine, both politically and

legally. Politically, because it involves a species of affirmative action in a
sphere where that idea seems especially contentious. Convincing mostly
white police departments not to apply harsher standards to black suspects
than to white ones is feasible. Convincing those departments to ignore
what they know about what crimes are happening where and who is more
easily caught than whom, convincing them to apply criteria that seem to
favor not blacks, but black criminals?that is a much harder sell. The
truth may be that the criteria being applied now are not as neutral as they
seem. The retributive tilts against crack relative to powder and against
sellers relative to buyers are more contestable than most people think,
and the enforcement tilt against downscale drug markets is more the
product of externalities and legal incentives than first appears. But the
criteria nevertheless seem neutral to those who apply them. Conse-
quently, their abandonment would seem like a kind of race-conscious
decisionmaking designed to benefit crack dealers, hardly an appealing
picture in a time when affirmative action for more worthy beneficiaries is
faring poorly.
Legally, because the law simply cannot mandate the right mix of po?
licing; it lacks the necessary tools. If the problem is inequality, the most
natural legal solution is to mandate equality?to adopt a kind of quota of
police stops, a requirement that the police stop proportionately as many
whites as blacks. That is a position the law could conceivably take, for it
involves a workable legal standard: numerical equality. But this sort of

equality is fictive, and pretty obviously so. Blacks commit proportionately
more non-drug crimes than whites.112 Police cannot be expected to ig-
nore that fact, and if they did so, they would quickly re-create the kind of
law enforcement we saw in the Jim Crow South, where black robbers were
substantially favored relative to white ones, so long as the robbery victims
were also black. So policing will seem somewhat racially tilted even if
drug crime disappears from the landscape. And short of numerical
equality, there is no workable legal baseline to enforce. It follows that if
more (but not perfectly) egalitarian law enforcement is to happen here,
it must happen by the choices of police departments and local policymak-
ers, not judges.
All of which suggests that an enforcement tilt away from downscale
drug markets and toward upscale ones is hard and unlikely. But perhaps
not impossible. Consider another sphere of criminal law enforcement
that has grown enormously over the past generation. White-collar crimi?
nal prosecutions were a small feature of law enforcement, state and fed?
eral, before about 1970.113 They are still a small feature of local prosecu-
tors' dockets, but they play a large role indeed in many U.S. Attorneys'
offices. This large growth in white-collar prosecutions, like the explosion
in drug enforcement, has taken place in Republican and Democratic ad-
ministrations alike, and now appears to be a permanent feature of federal
criminal practice.
What explains it? The phenomenon was partly prompted by Edwin
Sutherland's skillful propagandizing: Sutherland spent years making ex-
aggerated claims about the high cost of the frauds of the wealthy, and his
work may be one of the rare instances of an academic career that had
substantial political impact.114 But it is hard to credit the popularity of
white-collar criminal enforcement to the perceived cost of white-collar
crimes. The best study of those crimes and the criminals who commit
them concluded that many are fairly small-time frauds that cost their vic?
tims a few thousand dollars or less.115 More importantly, frauds do not
impose the biggest costs that more traditional street crime imposes: fear
of violence, and the attendant inability to travel about one's neighbor-
hood in peace. Plus, white-collar cases are more costly to investigate and
prosecute than street crime, partly because of the nature of the evidence
the government must gather, and partly because white-collar defendants
112. For a thorough discussion of the evidence for this proposition, see Tonry, supra
note 2, at 49-80.
113. See, e.g., David Weisburd et al., Crimes of the Middle Classes 6-7 (1991).
114. For a good, albeit too favorable, summary of Sutherland's work and its enormous
influence, see Gilbert Geis & Colin Goff, Introduction to Edwin H. Sutherland, White
Collar Crime at ix (1983).
115. See Weisburd et al., supra note 113, at 32-38 (discussing false claims cases, tax
violations, bribery, and bank embezzlement). Antitrust violations and securities frauds,
this study found, were more expensive to their victims. See id. at 24-28. Mail and wire
fraud fell in between these two categories. See id. at 28-31.
are so often represented by counsel even while the investigation is going

forward.116 Sutherland's fulminations notwithstanding, street crime is
and always has been more socially costly and more easily punished than
its white-collar counterpart.
Yet white-collar prosecutions do have a significant virtue from the
government's vantage point, and it is a virtue that has some bearing on
drug policy. White-collar prosecutions put the government in the politi-
cally attractive position of holding relatively advantaged defendants re-
sponsible for their wrongdoing, even if the wrongdoing is different and
(usually) less severe than the wrongdoing of less advantaged defend?
ants.117 Those prosecutions thus embody a very appealing, popular idea:
A given wrong choice can be worse because of the more favorable base-
line against which it was made. More is expected of those to whom more
has been given. A typical mail fraud defendant causes less social harm
than a small-time robber, but perhaps the mail fraud defendant faced
smaller temptations to criminality, and so should be judged more harshly.
Note that one need not accept the now universally rejected notion that
poor life circumstances excuse crime118 in order to accept this idea. One
need only accept the proposition that baselines matter, that the more and
better legal options one has, the more culpable one is for opting for a
given kind of illegality.
That proposition is in turn very closely related to the idea that pow?
der cocaine dealers and middle-class crack buyers should receive more
police attention than they now do (and crack dealers and lower-class
users less). The popularity of white-collar law enforcement shows how
politically attractive, at least in some settings, that idea is. Perhaps, some-
day, it will be so with drugs.
The idea is not only egalitarian; it is moralist as well. It rests on the
notion that buying and selling drugs is wrong whether or not it entails the
social harms that afflict many poor urban neighborhoods. And that may
be the key that unlocks drug policy's bias problem. The great difficulty
with contemporary drug enforcement may be neither too little nor too
much policing and punishment. Rather, it may be too little moralism. As
116. The best discussion of white-collar criminal investigation is Kenneth Mann's

book on the work of white-collar defense attorneys. See Kenneth Mann, Defending White-
Collar Crime (1985). The book is a compendium of examples of costly pretrial (and
presentencing) maneuvering between the government and the defense.
117. The point is not that white-collar defendants are invariably rich. On the
contrary, in terms of their wealth and education, they are somewhere close to average for
the population as a whole. See Weisburd et al., supra note 113, at 62-65 & tbl.3.3. Still,
relative to street-crime defendants, white-collar defendants are substantially more likely to
be employed, to have high-status professional jobs, to own homes, and to have privately
retained counsel. See id. at 64-65, 100-01 & tbl.5.2.
118. This position was taken most famously by Judge David Bazelon. See David L.
Bazelon, The Morality of the Criminal Law, 49 S. Cal. L. Rev. 385 (1976). For the classic
response, see Stephen J. Morse, The Twilight of Welfare Criminology: A Reply to Judge
Bazelon, 49 S. Cal. L. Rev. 1247 (1976).
the name suggests, morals crimes?another label for consensual criminal

transactions like drugs?depend more than do other crimes on the
strength of the norms that undergird them. At the same time, those
norms are more fragile than for other crimes. Murder and rape and rob?
bery cause obvious and direct harm to others; it is easy to tie the wrong to
the harm, and hence easy to see the behavior as wrong precisely because of
the harm. Cocaine and heroin, like alcohol, gambling, and prostitution
before, are different. The injury is indirect and diffuse, and for many
individuals it never appears. So if the behavior is thought wrong only
because of its consequences, it will often not be thought wrong at all.
And if police and prosecutors think drugs wrong only when and where
they cause certain kinds of social injury, drugs will be, in practice, more
wrong in some places?and among some groups?than others. That con-
cept of "wrong" has no staying power; it is what put us in the unpleasant
place we find ourselves.
The alternative is to decide that it is wrong for me to use cocaine
whether or not it destroys my family?because my doing so contributes to
a culture that makes it easier for others to do so, and their families may be
destroyed, or, more simply, because self-damage is wicked, wholly apart
from the violence and social breakdown that sometimes accompanies it.
That norm can be enforced against all races and all classes. And more
equal enforcement might strengthen the norm itself, which would do
more than prison cells can to combat the social breakdown that drugs
can cause.
In short, the relationship between moralism and consequentialism in
this setting is curious, and more than a littie ironic. If we think drugs are
wrong only because of their social consequences and act accordingly, we
may find it impossible to contain the consequences. But if we decide that
drugs are simply wrong and act accordingly, we might be able to limit the
harm drugs do?a nice example of what Paul Robinson and John Darley
call "the utility of desert."119 Our current drug policy, with its large racial
tilt, is the result of a series of thoroughly plausible consequentialist judg-
ments. Yet those judgments have generated some terrible consequences,
and seem destined to go on doing so.
V. Conclusion
It is a common move in discussions of drug policy to try to draw

lessons from Prohibition. The usual lesson drawn is that legal interven-
tion is somewhere between pointless and perverse?it doesn't stop what
it's supposed to stop, and it creates ancillary crime and violence and dis?
respect for the law along the way.
The real lesson is much more complicated, though perhaps not
much more encouraging. Prohibition was partly a revolt against cities by
the countryside, against immigrants by the native-born, and against
119. Robinson 8c Darley, supra note 70, at 453.
Catholics by Protestants?just as the system's crusade against crack has

been partly a revolt against poor urban blacks by middle-class suburban
whites. But Prohibition was not only, and probably not primarily, those
things. It was also a moral crusade to stamp out behavior that its propo-
nents thought wrong, in the way that escapism and self-damage are often
thought wrong. And it was a crusade against the horrible consequences
of the urban saloon, in which cash-paid factory workers drank their pay
envelopes while their families were deprived of life's necessities.120 At a
distance of eighty years, those consequences are easy to blink, but the
testimony of those on the scene at the time suggests they were horrible;
they could be measured in ruined lives, domestic violence, and crime.
When it came time to enforce Prohibition, these two crusades, mor-
alist and consequentialist, turned out to be curiously at odds. For a crime
for which full enforcement was impossible, choices had to be made about
where to put one's resources. The natural choice was to go where en?
forcement could have the greatest social gain. But that consequentialist
enforcement strategy made the moral crusade ever less credible; it high-
lighted the us-and-them character of the crime. A President of the
United States served drinks in the White House during the 1920s.121 An
enforcement strategy and popular culture that allowed that sort of thing
to happen could not long sustain the large-scale suppression of drinking
by working-class white ethnics?even if one could make a plausible policy
argument for distinguishing between Capone's customers and Harding's
friends.
Many features of drug crime and drug enforcement differ from our
experience with criminalizing alcohol in the 1920s. But this basic con?
flict, the tension between morals law and consequentialist law enforce?
ment, is very much the same. Tolerance of upperclass violators is not
nearly so great for cocaine today as it was for alcohol seventy years ago
(which is probably why cocaine prohibition has not collapsed, unlike al?
cohol before it). But the existence of a basic enforcement strategy that
targets lower-class criminality is disturbingly similar. That strategy makes
consequential sense, at least in the short term. But it tends to undermine
the moral message, and that message is probably, in the long term, the
best consequentialist tool the system has.
120. For a good discussion of the intermingling of moral and consequential concerns
among those who supported Prohibition, see generally Richard F. Hamm, Shaping the
Eighteenth Amendment: Temperance Reform, Legal Culture, and the Polity, 1880-1920
(1995).
121. On Harding's drinking and card-playing habits, see, e.g., Geoffrey Perrett,
America in the Twenties 139-40 (1982).

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Race, Class, and Drugs

Author(s): William J. Stuntz

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RACE, CLASS, AND DRUGS

It is hardly news that American criminal justice is racially tilted.

* Class of 1962 Professor and Horace W. Goldsmith Research Professor, University of

2. See Michael Tonry, Malign Neglect?Race, Crime, and Punishment in America

dict, that a large majority of blacks oppose legalization of drugs,4 these

for drug policy's greatest beneficiaries, if indeed they are beneficiaries, to

The result is the

I. Class and Consensual Crimes

A. Why Drugs Are Different

Classis at once easy to understand and impossible to define well.9

9. For a similar conclusion well explained, see James Q. Wilson 8c Richard J.

tion. And, obviously, a good deal of white-collar crime involves complex

B. Upscale and Downscale Markets

Generalizing about market structure and product and distribution

The market for illegal alcohol during Prohibition seems to have

street or at well-known, fixed points in the neighborhood, has long been

Alcohol distribution during Prohibition did not fit the pattern in

be segregated by race or ethnicity. In these circumstances, anything that

tend to have more

This three-cornered link?with violence, street crime, and social pa-

II. The Sources of Bias

According to ordinary retributive principles, conduct that causes

whatever distribution networks operate locally. It seems a stretch to

B. The Cost of Policing

Enforcement of consensual crimes always raises serious resource allo-

This is worthemphasizing, because it is very different from the ordi?

Looking in poor neighborhoods tends to be both successful and

poses whenever the level of coercion

have vis-a-vis the government. Rather, it is the privacy we do have vis-a-vis

Marry this pattern in Fourth Amendment law to the character of dif?

III. The Consequences of Bias

Because street markets in crack are seen, plausibly, as causing more

period.74 Meanwhile, blacks in general, and poorly educated blacks in

The second point concerns the relationship between levels of crime

All these phenomena?the apparent rise in juror holdouts in drug

Drugs today present an interesting twist on this pattern. Middle-class

tangible punishment is serving mostly to compensate for a decline in the

I have tried to explain why, even in a world in which legislators,

nation is that South Carolina's law enforcement apparatus cared littie

Broadly speaking, there are three options. Legalization is the most

about drug enforcement today. Whether or not legalization is a good

Equalizing drug enforcement is more complicated. One possibility, of

reinforcing, since would-be offenders tend to accommodate their behav?

104. See Kahan, supra note 70, at 352-61.

be targeted wherever they appear; the drug trade tends to be targeted

Sadly, that sort of change is hard to imagine, both politically and

involves a workable legal standard: numerical equality. But this sort of

are so often represented by counsel even while the investigation is going

116. The best discussion of white-collar criminal investigation is Kenneth Mann's

the name suggests, morals crimes?another label for consensual criminal

It is a common move in discussions of drug policy to try to draw

119. Robinson 8c Darley, supra note 70, at 453.

Catholics by Protestants?just as the system's crusade against crack has

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