Does Pittsburgh Over-Police Black People?

Introduction:

When people say that the criminal justice system is “racist,” what does that mean? Well, it means different things to different people. Obviously, it means something different to a person who lives in a “high crime neighborhood” in a dense urban area and who has personally experienced many adversarial interactions with police than it does to a person who lives in a rural area, who rarely, if ever, interacts with the police in an adversarial manner.

As a criminal defense lawyer, when I want to find an answer to a question, I look at the evidence— or the lack of evidence. Evidence can be objective or subjective, qualitative or quantitative. All of it can be usefull.

In this blog, I try to provide an (admittedly overly-simplified) answer using objective and quantitative data as examined through the lens, and in the context, of two of the most profoundly and uniquely American institutions: the private ownership of firearms and mass incarceration.

Disclaimer:

Please note that I am not a sociologist, nor am I a statistician. Also, I’m publishing this blog on my own website because I want to; it hasn’t been reviewed or edited by anybody other than myself. So, while I’ve tried to be accurate, I’m sure there are errors in my analysis. Don’t rely on anything in this blog unless you fact-check it first.

Context:

Possessory offenses are very interesting if you spend any time thinking about them. Almost anything can be legally possessed, bought, and sold by somebody in some form or analogue, such as a prescribed medication that functions the same way as an illegal “street drug”. (The only signficant example that comes to mind of something that people cannot generally possess is child sex abuse material, often referred to as “child pornography”— but even this has only been criminalized at the federal level since the 1970s.)

Guns and drugs are legally bought, sold, possessed and used everyday, all the time. So, there is nothing inherently immoral, unethical, or criminal about possessing and using guns and drugs. The criminalization of possessing something that is generally legal— like guns or drugs— ususally arises because 1) the possessor does not have the proper government-issued credential (such as a license or a prescription), or 2) because the possessor has been “legally” precluded from possessing it, such as when a convicted felon cannot possess a gun. Child sex abuse material is an entirely different matter because the possession of it necessarily implies the abuse and exploitation of a non-consenting child (except in cases where the child is legally old enough to consent under state law, though not federal law).

Possessory offenses are interesting, at least from my perspective as a criminal defense attorney, because they comprise such a large percentage of the cases that move through the intestines and bowels of the Criminal Conviction System, yet they mostly include items and objects that are legal and omnipresent in the lives of many Americans.

For example, in 2021, 407 federal defendants were sentenced in the Western District of Pennsylvania (WDPA). Of those 407 cases, 400 cases, or 98.3%, ended with guilty pleas. In the WDPA the largest category of cases for which defendants were sentenced were classified as “drug trafficking” with 187 cases, or 45.9% of the total.

This statistic holds true throughout the federal system where “drug trafficking” offenses comprise the largest category of federal crimes. As will be discussed later, the third largest category was gun offenses.

Can you guess the second largest category of federal crimes? Here’s a hint— it is another category of “crime” that disproportionately affects people of a certain race/ ethnicity.

But, I’ve gotten off track…

Step 1— Firearms:

Americans really like firearms.

From November, 1998, through August, 2022, the FBI reported 432,366,543 firearm background checks in the United States. [1] As of 2017, the United States is estimated to have 120.5 firearms per 100 residents. The country with the next highest rate of private firearm ownership is Yemen with 52.8 firearms per 100 residents.[2] America is the only country in the world that (officially) has more firearms than people.

In 2021, there were 1,045,890 sales and transfers of firearms and frames/receivers in Pennsylvania.[3] So, I’ll say it again, Americans really like guns.

Step 2— Mass Incarceration:

Despite this abundance of freedom wrought from cold steel and tepid polymer, the United States has both the largest number of incarcerated people and the highest rate of incarceration in the world. [4] The United States incarcerates more people per capita than its peers in the community of nations including El Salvador, Turkmenistan, Palau, Rwanda and Cuba.[5] At the end of 2020, there were 151,283 federal prisoners,[6] and a total of around 2 million incarcerated people in the various public and for-profit private prisons and jails throughout the country. In 1928, at the dawn of the federal effort to criminalize the possession of drugs and guns, there were 7,738 federal prisoners. Rufus G. King, “The Narcotics Bureau and the Harrison Act: Jailing the Healers and the Sick,” 62 Yale L.J. 736, 749 (1953). It’s not surprising that the prison population exploded when America started criminalizing the things that people like to possess— like drugs and guns.

So, while Americans really like guns, they also really like incarcerating each other. But, who gets incarcerated for possessing guns?

Sentencing Data: Pennsylvania

In June 2022, the Pennsylvania Commission on Sentencing published a Report to the House of Representatives titled “A Comprehensive Study of Violations of Pennsylvania’s Uniform Firearm Act”, HR 111, Session of 2021 (hereafter referred to as “House Report.”).[7] The House Report analyzed sentencing data from 2015 to 2020. According to the report, criminal charges under the Pennsylvania Uniform Firearm Act disproportionately affect young black males who live in urban communities located in counties with high population density. This conclusion was not the purpose for which the report was commissioned, but the conclusion was otherwise inescapable. The report found that “[i]ndividuals charged with VUFA offenses are predominantly male, black, and 34 years of age or younger.”[8] In Pennsylvania, 92.7% of all defendants convicted of VUFA are male, 59.8% are black, and 71.9% are 34 years old or younger.[9] Furthermore, while black people comprise 42% of the overall parole population, they comprise 70% of the people on parole for VUFA violations.[10] However, race, gender, and age are not the only variables at issue. The report found an interesting relationship between VUFA recidivism rates and population density:

Recidivism rates vary substantially across county classifications. There appears to be a relationship between the population density of the county classification and its corresponding recidivism rate. The highest proportion of VUFA charges and the largest proportion of the most serious charges occur in the First- and Second-Class Counties, where population densities are the highest. These counties see the highest rates of recidivism for VUFA offenses, while the less densely populated county classifications see lower rates of initial charges and recidivism[.][11]

According to the data, which can be accessed through the Pennsylvania Commission on Sentencing Data Dashboards (2019),[12] in Allegheny County for the year 2019—the latest year for which data are published— 35 people with a prior record score of 5 were sentenced for a VUFA conviction graded as a first-degree felony. Of those 35 people, 32 were black. 40 people were sentenced for a VUFA conviction graded as a second-degree felony with a prior record score of 5, of which 37 were black. 45 people were sentenced for a VUFA conviction graded as a third-degree felony, of which 42 were black. In other words, 93% of people sentenced for VUFA offense in Allegheny County with a prior record score of 5 were black.

Interestingly, in Allegheny County for the year 2019, the mean prison sentence imposed (in months) on black people who were convicted of VUFA with a prior record score of 5 was higher than the mean prison sentence for white people convicted of VUFA with a prior record score of 5:

Mean Prison Sentence (White):

Min Max

VUFA (F1) 27 84

VUFA (F2) 36 72

VUFA (F3) 24 48

Mean Prison Sentence (Black):

Min Max

VUFA (F1) 41.4 89

VUFA (F2) 37.8 80.2

VUFA (F3) 31 62.9

You might be wondering why black people receive longer sentences for the same crime with the same prior record score. It’s good question, but note that this disparity does not persist when looking at statewide data.

Sentencing Data: Federal

The data from the Pennsylvania Sentencing Commission are largely consistent with data collected by the Federal Sentencing Commission. In 2022, the Federal Sentencing Commission published a report titled “What do Federal Firearms Offenses Really Look Like?”[13] (hereafter referred to as the “Federal Report”). According to the Federal Report, firearm offenses are among the most common crimes prosecuted and sentenced in federal court.[14] United States Sentencing Guideline (USSG) Section 2K2.1 was the third most frequently applied guideline in fiscal year 2021.[15] Federal firearm offenses have the second highest percentage of black defendants (55.3%) in 2021, behind only Robbery (59.4%).[16] These are the only two federal crimes for which the majority of defendants are black.[17] 72% of offenders convicted under USSG section 2K2.1 were between the ages of 25 and 44 years old, and 96.2% of offenders were male. The average age of firearm offenders is 34 years old, and 61.1% of firearm offenders were under the age of 35 when sentenced.[18] All told, in the five-year period from 2017 through 2021, 36,176 mostly young, mostly black, mostly men were sentenced for federal firearms violations. [19]

Can you guess which federal crimes have the highest percentage of white defendants? For the answer, see Note #16.

Discussion:

Regardless of any other conclusion that might be drawn from this data, one conclusion is inescapable: black people are disproportionately affected by VUFA. But why? I think the answer is that black people, at least in Pittsburgh, are simply over-policed relative to their proportion of the population. Consider the following data from the 2021 Statistical Report, City of Pittsburgh, Department of Public Safety, Burea of Police.

In 2021, there were 10,243 traffic stops in the City of Pittsburgh. Of those traffic stops, for which there is racial data, 47% (4346 of 9341) were inflicted on black people, with 31% conducted on black males, yet black people comprise only 23% of the population of Pittsburgh.[20] So, the data clearly show that black people are disproportionately afflicted by traffic stops. But why does that matter? Is a traffic stop anything more than a minor inconvenice? If you are not doing anything wrong who cares if the police stop your car, interrupt your day, restrict your freedom, put your safety in jeopardy, etc.? Also, if you are not doing anyting wrong, who cares if the government spies on you, collects your data, and colludes with giant social media corporations to control your access to information….

I’m getting off track again…

The following data show the number and percentage of total vehicle stops where the person was let off with a “warning.”

Before you look at the data, try to guess which group is most likely to be let off with a “warning.” Your choices are black men, black women, white men, and white women.

Black Males: 39.7%

Warned: 1156

Total: 2909

White Males: 42.1%

Warned: 1355

Total 3211

Black Females: 43.4%

Warned: 624

Total: 1437

White Females:47.4%

Warned: 846

Total: 1784

[21]

Were you able to guess correctly? Does it surprise you that white women are the group most likely to be let off from a traffic stop with nothing but a “warning” and that black men are the least likely? These data raise the question of what criteria do police officers use to decide to let someone off with a “warning” rather than some other outcome such as a citation or an arrest.

Let’s look at some more data about traffic stops:

Following traffic stops, black males were frisk-searched 406 times and arrested 194 times (47.8% arrest rate). White males were frisk-searched 120 times and arrested 60 times (50% arrest rate). These data suggest that while black and white males are arrested at about the same rate following frisk-searches, black males are subjected to 3.4 times more frisk-searches following traffic stops. This statistic is even more pronounced than it appears because there are more white males in Pittsburgh than black males.

Let us assume that when the Statistical Report refers to “frisk-searches”, it is the same thing as a Terry patdown. Police officers are only permitted to conduct a frisk-search or Terry patdown of a person following a traffic stop if they have a “justified belief that the individual, whose suspicious behavior [they are] investigating at close range, is armed and presently dangerous to the officer or to others. Commonwealth v. Zhahir, 751 A.2d 1153, 1158 (Pa. 2000) citing Terry v. Ohio, 392 U.S. 1, 24 (1968). However, the data show that weapons were discovered only 12% of the time following frisk-searches of black males, and 7% of the time following frisk-searches of white males. These data suggest that police officers believe that people are armed and dangerous much more often than they really are and/or they are simply ignoring the constitutional standard. So, while black males are 1.7 times more likely to possess weapons than white males, they are frisk-searched 3.4 times as often. Interestingly, in 31% of frisk searches of black males and 41% of frisk searches of white males, no evidence was discovered at all. Again, this suggests that police are either not very good at determining who is armed and dangerous, or they simply ignore the constitutional standard.

Still not convinced that black people are over-policed in Pittsburgh? Let’s look at everyone’s favorite plant— marijuana.

Marijuana:

In 2021, 100%— that’s right, 100%— of arrests where the only charge was marijuana were of black people. Furthermore, 80% (176 of 220) of people who were cited for possessing marijuana were black.[22] Black people comprise 23% of the population of the City of Pittsburgh. Even if black people use marijuana at a higher rate than white people (a statistic for which I have no evidence), there is still something wrong here. Common-sense tells us that the strong populist effort to legalize marijuana among the several states would not be successful if marijuana legalization were only of interest to black people. They simply do not have the demographic numbers to change criminal laws through the legislative process. In other words, white people must also be interested in, and support legalizing marijuana, which suggests that they have an interest in using it. For example, the State of Maine has legalized marijuana.[23] Yet, the population of Maine is 90.9% white.[24] The State of Vermont has also legalized marijuana.[25] It’s population is 89.8% white.[26] Absent compelling evidence that in Pittsburgh black people use marijuana at much higher rates than white people, the logical conclusion is that police disproportionately enforce marijuana laws against black people.

Conclusion:

A potential rejoinder to the argument that Pittsburgh over-polices black people is that black people commit more crimes than white people. This is certainly true with violent crime, such as homicide where the black male homicide rate dwarfs the homicide rates for other groups. Consequently, one might argue that the police simply go to where the crime is most likely to occur and focus on the people who are most likely to commit it. However, this is a self-fullfiling, self-perpetuating cycle as we can see with the marijuana offenses. I wonder what would happen if the Criminal Conviction System were completely race-neutral. Would the number of white people who are stopped, frisked, arrested, convicted, and sentenced increase, or would the number of black people who suffer these indignities decrease? To reach an equilibrium where the Criminal Conviction System statistics directly mirror the demographics of Pittsburgh would we simply ignore more criminal conduct perpetrated by black people or would we stop ignoring criminal conduct perpetrated by white people? Maybe this summation of the problem is too simplistic. Maybe black people do commit more crimes, and at a higher rate, than white people, but there are other political, social, and economic factors that cause this to happen. Maybe the way we define crime itself is the problem. As already mentioned, the federal prison population increased when Congress started criminalizing possessing things like alcohol, drugs and guns. Here’s a crazy idea— maybe race is not the best, or most productive variable upon which to analyze the Criminal Conviction System. Maybe there’s something esle going on… but that’s for another blog post.

Notes

[1] “NICS Firearms Checks: Month/Year”, available at https://www.fbi.gov/file-repository/nics_firearm_checks_-_month_year.pdf/view, last accessed September 11, 2022.

[2] See Karp, Aaron, “Estimating Global Held Firearm Numbers,” June 2018, SmallArmsSurvey.com, available at https://smallarmssurvey.org/database/global-firearms-holdings, last accessed September 11, 2022.

[3] See 2021 Firearm Sales/Transfers Reported by County, Pennsylvania State Police Firearms Annual Report 2021, available at https://www.psp.pa.gov/firearms-information/Pages/Firearms-Annual-Reports.aspx, last accessed September 11, 2022.

[4] See https://worldpopulationreview.com/country-rankings/incarceration-rates-by-country.

[5] https://www.statista.com/statistics/262962/countries-with-the-most-prisoners-per-100-000-inhabitants/

[6] https://bjs.ojp.gov/library/publications/federal-prisoner-statistics-collected-under-first-step-act-2021#:~:text=The%20federal%20prison%20population%20decreased,to%20151%2C283%20at%20yearend%202020

[7] Available at https://pennstateoffice365.sharepoint.com/:b:/s/PCSFileshare/EXRhMt_vJrhNuimg3Hq-HwsB9Zui3XF9svNU6BB3WJxQ9A?e=6HLuGI

[8] House Report at 25.

[9] Id. at 23.

[10] Id. at 102

[11] Id. at 109

[12] Available at https://pcs.la.psu.edu/research-data/interactive-data-portal/sentence-outcome-report/.

[13] The report is available at https://www.ussc.gov/research/research-reports/what-do-federal-firearms-offenses-really-look

[14] This represents a significant difference from Pennsylvania, where VUFA offenses are a small percentage of total case filings. According to the House Report, VUFA dockets account for 3.8% of all dockets filed in the lower courts, and 1.6% of felony 1 or felony 2 VUFA dockets. House Report at 1.

[15] Federal Report at 2.

[16] The federal crimes that have the highest rate of white defendants are Antitrust (100%), food and drug (84.4%), and child pornography (80.1%). Race of Federal Offenders by Type of Crime, Table 5, available at www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2021/Table05.pdf

[17] Id.

[18] Federal Report at 2.

[19] Federal Report at 9, figure 1. Trend in Number of §2K2.1 offenders.

[20] https://worldpopulationreview.com/us-cities/pittsburgh-pa-population

[21] Annual Report at 94, available at https://cprbpgh.org/documents/2021-Pittsburgh-Police-Annual-Report.pdf

[22] See 2021 Statistical Report at 100, available at https://apps.pittsburghpa.gov/redtail/images/18173_2021_Annual_Report_Final.pdf.

[23] https://worldpopulationreview.com/state-rankings/marijuana-laws-by-state

[24] https://www.census.gov/library/stories/state-by-state/maine-population-change-between-census-decade.html

[25] https://worldpopulationreview.com/state-rankings/marijuana-laws-by-state

[26] https://www.census.gov/library/stories/state-by-state/vermont-population-change-between-census-decade.html