Report: Maine has large racial and gender disparities in drug-related incarceration

Ten years worth of new data confirms what many Mainers demanding criminal justice reform have long known: Maine’s own “War on Drugs,” with its criminalization of drug use and possession amid the state’s opioid crisis, has been disproportionately waged on Black people and women.

Analysts from the Council of State Governments (CSG) Justice Center looked back through arrest records, court filings and prison and probation admissions in Maine from 2008 to 2018, assembled a comprehensive documentation of these disparities and submitted a report on Nov. 25 to the Maine Commission to Improve the Sentencing, Supervision, Incarceration and Management of Prisoners.

The study shows that total arrests for drug offenses in Maine rose slightly between 2008 and 2018, with class-A felony drug arrests for trafficking, the most severe charge, more than doubling.

Prisoner rights advocates are troubled by disparities in who gets charged with “trafficking,” a term many feel is too often misapplied to people living with substance use disorder who simply possess amounts of drugs over a legal limit.

While Maine’s prison population is still overwhelmingly white and male, the findings show that Black people are more likely to be charged with a class-A felony than white people arrested for similar offenses. The number of women being prosecuted for a class-A trafficking charges has also grown exponentially.

Prior to the report’s release, state Rep. Charlotte Warren (D-Hallowell), House chair of the legislature’s Criminal Justice and Public Safety Committee, sat down with Ben Shelor, CSG’s senior policy analyst. 

“When he flipped the page and I saw the beginning of the numbers around racial disparity, it physically felt like somebody kicked me in the gut,” Warren said. “And I am not in any way surprised by those numbers.”

Black people and women receive the most severe sentences

Throughout every class of criminal charges, Black people in the state’s carceral system are sentenced disproportionately when compared to white people.

That disproportionality is more pronounced for more serious crimes that bear harsher punishments. For example, the analysts found that Black people, who make up one percent of Maine’s population, account for 21 percent of class-A felony drug arrests (aggravated trafficking) and 15 percent of class-B felony drug arrests (trafficking).

Overall, Black defendants made up 12 percent of prison sentences in 2018 with white defendants making up 83 percent.

For women, analysts found both an increase in drug arrests and an increase in the seriousness of the crimes they were being charged with. Between 2008 and 2018, drug arrests increased 25 percent for women, with arrests for class-A offenses more than tripling during this period.

These increases have not coincided with increased drug use in Maine. According to a study commissioned by the Maine Department of Health and Human Services, use of illicit drugs among 18- to 25-year-olds have decreased slightly since 2012, while rates among youth and adults 26 and older have remained relatively unchanged.

“That’s a policy choice that Maine has made, and it’s failing,” said Tina Nadeau, a defense attorney and director of the Maine Association of Criminal Defense Lawyers. “Each attorney general sets their own policies for the enforcement of our drug laws. So, when the prosecutors and the assistant attorneys general are given marching orders, that’s what they follow. It’s top down.”

Tabled state policy would focus on shrinking felony convictions 

New data shows that overall number of felony sentences decreased 10 percent between 2016 and 2019, but the number of individuals who were ultimately sentenced to time in prison increased two percent over the same period. | Maine Department of Corrections official photo

Criminal justice reform advocates say eliminating felony possession charges and making felony trafficking charges more rare could make Maine’s criminal justice system more equitable, effective and humane.

Last spring, state Rep. Pinny Beebe-Center (D-Rockland) introduced legislation, LD 1492, that would raise the relatively small possession amounts for drugs like heroin, oxycodone, hydrocodone and methamphetamine that trigger a “trafficking” charge instead of misdemeanor possession. The reform would instead compel prosecutors to prove the intent of someone accused of trafficking.

“When I go down to [the Maine Correctional Center in] Windham, and I spend a lot of time down there walking around and talking to women — these aren’t kingpins,” Warren said.

But as the system currently operates, prosecutors have significant discretion over whether a defendant gets processed with a misdemeanor or felony drug charge.

Despite the growing demand to defelonize drug offenses, felony charges leading to prison sentences have gone up. While the overall number of felony sentences decreased 10 percent between 2016 and 2019, the CSG report found, the number of individuals who were ultimately sentenced to time in prison increased two percent over the same period.

“Prosecutors are making decisions on whether to charge something as trafficking versus possession,” Nadeau said. “They’re making the decision to elevate a regular trafficking charge to aggravated trafficking because of a prior felony possession charge. Those are policy decisions. They’re applying the law in a way to put the screws to people.”

Nadeau explained why some prosecutors may push for the most serious charges: “Aggravated trafficking is so tempting for prosecutors because it carries with it a mandatory minimum [sentence] of four years, none of which can be suspended,” she said. “That’s a lot of time. That’s a lot of leverage to get people to plead guilty to something to avoid getting the mandatory minimum.”

Further, Nadeau and other advocates noted that the data presented by CSG shows that implicit racial bias is impacting which people prosecutors are choosing to charge in this way.  

“It’s not to say that prosecutors are being intentionally racist,” she said. “But intent doesn’t mean anything. It’s outcome that matters.”

More than men, half of felonies charged to women are for drug offenses

Compared with men, women disproportionately face more felony charges for drug offenses. Over half of the time that women are arrested for felonies, they are charged with possession, trafficking, or theft, which is often associated with drug offenses. Only one-quarter of men face felonies for the same offenses.

“That’s always been the case,” Warren said. “It plays into the history of women and alcohol, women and crack. Women will always receive harsher penalties, because they’re expected to be better. They’re expected to be a mom, more pure.” 

Warren explained that women are more often forced into carrying drugs for men because of the power imbalance inherent in abusive relationships. She said that Penobscot County Sheriff Troy Morton told the Criminal Justice Committee that he rarely sees women arrested for trafficking who aren’t also dealing with substance use disorder.

An internal report drafted earlier this year by Maine’s Department of Corrections found that 72 percent of women in the state’s prisons are there on drug and theft charges, which are often related. In recent years, the population of Mainers awaiting trial in jails across the state has ballooned even as overall crime rates have fallen.

“There’s this ripple effect when we lock up women and mothers, we lock up whole families,” said Cait Vaughan, a community organizer with Maine Family Planning. “It perpetuates the type of trauma and adverse childhood experiences that we know are tied to substance use and experiencing incarceration and mental illness later in adulthood. What we are doing is setting up future generations of children to be stuck in cycles of poverty and trauma — which often leads to more substance use.”

White people receiving diverted sentences have more prior arrests than Black people

Though a small sample, one of the most telling racial disparities highlighted in the report is in regards to those awarded deferred dispositions, where they plead “guilty” or “no contest” in exchange for meeting certain requirements like probation, treatment, or community service. White people who receive deferred dispositions consistently have more average prior in-state arrests than Black people who receive deferred dispositions.

CSG analysts also found the 1,973 white people who receive deferred dispositions in 2018 had an average of 1.31 prior arrests, compared to the 71 Black people who had an average of 1.11.

“This is the first time we’ve ever seen all this information compiled in one place. And I think these numbers really justify what Black people have been saying for a long time,” said Joseph Jackson, coordinator of the Maine Prisoner Advocacy Coalition.

Jackson pointed out the CSG finding that, of the nine percent of people sentenced to prison in 2019 who had out-of-state legal addresses, half of those people were Black.

“In those numbers, we’re seeing how we’re deploying a police force,” he added. “We’re seeing in those numbers who they’re stopping.” 

Much of this data was collected during the tenure of former Governor Paul LePage, who infamously argued that Maine law enforcement should explicitly target people by their race. “When you go to war … you try to identify the enemy and the enemy right now, the overwhelming majority of people coming in, are people of color or people of Hispanic origin,” he said in 2016.

Pointing out the disproportionate number of Black people with addresses from outside of Maine who face class-A felony arrests, Nadeau said, “I think the fact that they are Black and from out of state make prosecutors a lot less willing to see them as, first of all, fully-realized human beings, but less worthy of sympathy or compromise.”

In recent years, racial and gender disparities have decreased in the U.S. prison system, but only because the number of incarcerated white men and women has increased, according to a report released this month by the Council on Criminal Justice. The increasing incarceration of white people nationally shows they are now being caught up in the drug laws that reform advocates say were borne from racist stereotypes of Black men and other people of color.

“Our country’s drug laws have always been based on targeting people who were not white: anti-opium laws in the late 19th/early 20th Century targeted Chinese immigrants, anti-cocaine laws of the early 20th Century targeted Black men, and anti-cannabis laws targeted Mexican Americans,” Meagan Sway, policy counsel with the American Civil Liberties Union of Maine, said in an email. “Our current state drug laws still have the crack cocaine/powder cocaine disparity in statute. The data collected from the Council of State Governments shows the continuation of this racist history.”

“Oppressive systems built to hurt Black and brown people can also hurt white folks,” Vaughan added. “It matters that we are having a national conversation about criminal justice reform at a time when mainstream white America is more willing to have compassion, in some aspects, because we have seen it hit our communities,” she said. “That doesn’t change that the tools were built with a racist intent. What I think is really important, particularly in a majority white state like Maine, is that we really begin to cast our lot with the movement for racial justice and be in solidarity with the folks who have been hit hardest.”

Advocates see Mills as a roadblock to progress

Gov. Janet Mills was the state’s top law enforcement officer from 2009-2011 and from 2013-2019, a period during which total arrests rose slightly and class-A felony drug arrests for trafficking, the most severe charge, more than doubled. | Dan Neumann, Beacon

Beebe-Center’s decriminalization bill was tabled by the legislature’s Criminal Justice Committee last summer, with the intent to revisit the policy change during the upcoming session, which begins early next year. 

While testifying before the Criminal Justice Committee last May, Attorney General Aaron Frey recognized the need to reform aspects of the state’s trafficking and possession laws. His predecessor, Janet Mills, may be more difficult to move on the issue.

Mills, now Maine’s governor, was attorney general from 2009-2011 and again from 2013-2019, most of the period studied in the report. Her administration did not respond to a request for comment.

“Even though Democrats have majorities in the House and the Senate, our governor, when it comes to criminal justice issues, is very conservative,” Nadeau said. “She is a roadblock in a lot of ways to really pushing a progressive criminal reform agenda that can actually help people.”

Jackson added, “Criminal justice reform was not part of the governor’s platform when she ran. I hope that she is troubled by numbers that she’s seeing now.”

Top photo from a Maine Department of Corrections recruitment video.