Stats show ‘alarming disparity’ on race, marijuana charges in Lexington and Kentucky
In Fayette County, Black people are disproportionately charged with marijuana-related crimes, years of court data shows.
State court data shows nearly half of all defendants —46 percent —arrested for marijuana possession over a five-year time frame were Black. And nearly 61 percent of all people charged with felony marijuana trafficking from 2015 to 2019 in Fayette County were Black.
Yet, Fayette County’s Black population is only 14.6 percent of the total population.
That’s also true statewide, Kentucky Administrative Office of the Court data requested by the Lexington Herald-Leader shows.
Statewide, Black defendants make up 27 percent of all possession charges and 42 percent of all trafficking charges from 2015 to 2019, court statistics show. Yet, Black people are just 8 percent of Kentucky’s population.
These findings mirror other reports done in prior years showing Black people in Kentucky are much more likely to be arrested for marijuana possession and trafficking than white people. A 2020 American Civil Liberties Union analysis of nationwide marijuana possession charges showed that Black people in Kentucky were 9 times more likely to be charged with marijuana possession than white people. Yet, national studies have repeatedly shown white and Black people use marijuana at the same rates.
Those who have pushed the city and the state on policing and other reforms over the past year said the data shows the criminal justice system treats people differently based on the color of their skin.
“Though alarming, this data merely confirms what we already knew,” said Rev. Clark Williams, of Shiloh Baptist Church in Lexington. Williams is a member of a group of Black faith leaders that has urged the city of Lexington to make substantial changes in policing and other policies over the past year.
“Though there is not an apparent disparity in behaviors, there is an alarming disparity in how Black people are policed, especially in Lexington,” Williams said. “ So, this serves both as an example of why comprehensive police reform is so necessary and an illumination of why subjective standards in policing are almost never beneficial to Black people.”
Officials with the Lexington Police Department and the Kentucky Association of Chiefs of Police declined to comment for this story and declined the Herald-Leader’s request for an interview.
Still, some prosecutors said drawing conclusions from crime statistics can be misleading. Multiple factors contribute to crime, they said.
But a 2020 American Civil Liberties Union study of marijuana possession charges across the country from 2000 to 2018 looked at the rate at which Black and White people were charged with marijuana possession. Nationwide, Black people were 3.6 times more likely to be charged with marijuana possession. In Kentucky, Black people were 9 times more likely to be charged with marijuana possession than White people. That’s the second highest rate of racial disparity in the country. Only Montana had a higher rate of racial disparity between white and Black marijuana possession arrests.
Black and white people use marijuana at the same rates, according to a 2019 Substance Abuse and Mental Health Services Administration annual survey on drug use. In fact, that data shows 52 percent of people who say they are lifetime, habitual marijuana users are white. Only 43 percent of Black respondents said they were lifetime users.
‘It’s not about who’s using drugs. It’s about who gets charged’
Damon Preston, the Public Advocate for Kentucky, oversees the state’s public defender system, which represents poor clients in court. The Department of Public Advocacy lawyers represent the majority of defendants in Kentucky’s court system.
“The studies show that drug use is not racially disparate. It’s equally spread ,” Preston said. “This is not about who’s using drugs. It’s about who gets charged.”
Most drug arrests are not the result of a 911 call, Preston said. Most stem from interactions with police, he said.
“African Americans are more likely to be stopped and searched,” Preston said. “African-American neighborhoods are more likely to have an increased police presence. There are other communities that look more like me who can use every day and are never approached or searched.”
The Administrative Office of the Courts data and the ACLU study mirror Department of Public Advocacy data, Preston said.
In 2019, Fayette County’s Department of Public Advocacy data showed 48 percent of all defendants represented by that office for marijuana possession were Black and 58 percent of all defendants arrested for marijuana trafficking were Black.
Cortney Lollar, an associate professor at the University of Kentucky College of Law, said the ACLU nationwide study of marijuana possession charges shows racial disparities in marijuana arrests is not unique to Lexington or to Kentucky. But the ACLU analysis shows that Black Kentuckians are much, much more likely to be arrested than White people for marijuana use, which is now legal in 16 states.
A 1996 U.S. Supreme Court case upheld pretextual stops, which allows police officers to pull over a motorist for a minor traffic or equipment violation and then uses the traffic stop to investigate a more serious crime.
That law allows police broad discretion on who and when they can search, Lollar said.
“National data shows that Black and Brown people are disproportionately stopped by police,” Lollar said. “There is no reason to think Lexington or Kentucky is any different.”
Lexington police officials said in July the department does not track how many people are searched after traffic stops or pedestrian searches by race.
Police are frequently in minority neighborhoods because residents want them there to stop crime. But Lollar said in many cities and communities, police have pulled back on enforcement of minor infractions, including traffic stops and marijuana possession because of the disproportionate rates at which Black people are arrested or cited for minor violations.
“In numerous communities across the country, police and prosecutors have decided to end the enforcement of marijuana possession,” Lollar said.
The number of states that have legalized marijuana or decriminalized the use of marijuana continues to increase.
Sixteen states and Washington, D.C. have legalized marijuana possession and an additional 15 states have decriminalized marijuana possession. Another 19 states allow marijuana for medical use. Attempts to pass legislation to allow for medical marijuana have stalled for years in Frankfort as have efforts to decriminalize or legalize marijuana possession.
Three Democratic state House members—Rep. Nima Kukarnia, Rep. Attica Scott and Rep. Lisa Willner— filed a bill during the this year’s legislative session that would legalize marijuana for recreational use. That bill did not get a hearing. The bill was sponsored in part due to the racial disparities in arrest rates between Black and whites for marijuana possession Kentucky, according to a recent Herald-Leader opinion piece.
“There are individuals, corporations and even states that are making millions off the legal sale of marijuana,” Lollar said. “But Black and Brown people are paying the most for it here.”
Daniel Whitley, a Lexington defense lawyer, said he believes there is a correlation between marijuana arrests and traffic stops. In July, a Herald-Leader review of Lexington Police Department traffic stop data from 2015 to 2019, found about 23 percent of all tickets and warnings by Lexington police went to Black drivers. Black people make up 14.6 percent of Fayette County’s population. Moreover, the number of Black people of driving age is only 11.9 percent of the total population.
Lexington police officials said it was not fair to use the county’s Black population to show Black people were disproportionately stopped. Not all people stopped for speeding or running stop signs in Fayette County live here, police said in July.
“You have kids throughout the county that are smoking weed and taking drugs,” Whitley said. “ If you are only going to heavily police one area that you are going to find what you are looking for. If they did enter white neighborhoods, there is political pressure to drop those charges against privileged white kids.”
Prosecutors urge caution, say statistics don’t tell full story
Some prosecutors said they need to see more analysis to determine if Black people are disproportionately charged with marijuana possession and trafficking.
“I’m not aware of any scientific basis for the assumption that proportion of a population is somehow tied to the rate at which people of a particular race commit crimes,” said Rob Sanders, the Commonwealth Attorney for Kenton County, a former past president of the Kentucky Commonwealth’s Attorneys Association who serves as co-legislative liaison for the group. Sanders frequently testifies on behalf of the commonwealth attorneys on legislation pending before the state legislature.
Chris Cohron, the longtime Commonwealth Attorney for Warren County, also is a legislative liaison for the commonwealth attorneys in Frankfort. Cohron said there have been many studies on drugs and arrests in Kentucky that later proved to be inaccurate.
“I can’t comment because I don’t know the methodology,” Cohron said. “I have been saying this for years in Frankfort: We need a true study of our DOC (Department of Corrections) population and the background and the factors that led to that incarceration.”
“Everything with the criminal defense system, any time you make general assessments, it’s not going to give you a true picture.,” Cohron said.
But not all prosecutors feel the same.
In 2019, Jefferson County Attorney Mike O’Connell announced he would not longer prosecute marijuana possession charges when it involved less than one ounce of marijuana and that possession charge was the only charge. At the time, O’Connell cited a previous ACLU study that showed Black people were more likely to be charged with possession than white people as one of the reasons why he was no longer prosecuting some marijuana possession charges.
Fayette County Commonwealth Attorney Lou Anna Redcorn read the Administrative Office of the Courts statistics. Redcorn said the statistics showed a disparity between Black and white arrest rates for marijuana trafficking.
“Based on the AOC numbers, it appears accurate that African Americans are charged with trafficking in marijuana at a higher percentage than they represent in the general population in Fayette County,” Redcorn said. “The AOC numbers, however, offer no insight into the circumstances that underlie how the charges were brought. I believe the numbers provided by the AOC are reflective of many issues which are each complex and run much deeper than the criminal justice system. Regardless, the Office of the Fayette Commonwealth Attorneys strives to apply the law fairly and uniformly to all who are charged with violating it, solely based on the evidence presented to us.”
