Delaware's drug laws are out of balance. Here's how we can fix that. (opinion)

Kathy Jennings is Delaware’s Attorney General. Sen. Elizabeth Lockman, D-West Wilmington, represents Delaware’s 3rd Senate District. Rep. Sean Lynn, D-Dover, represents Delaware’s 31st Representative District and chairs the House Judiciary Committee.

We have heard from countless people in Wilmington, in Dover, and across Delaware about our drug laws, all saying the same thing: the status quo isn’t working, and it’s time for us to change it. 

“Tough on crime” drug policies have long enjoyed bipartisan support, but today the benefit of hindsight makes it clear that well-intended policies have come with serious unintended consequences.

While research does not suggest that our drug laws have effectively reduced violent crime, ample experience and data tell us that current policy comes at a significant cost to the corrections system, to taxpayers, and disproportionately to communities of color.

Federal prison populations have nearly quadrupled since 1986. A significant plurality of current federal inmates – nearly half – are serving sentences for drug charges and, troublingly, about 75 percent of them are black or Latino – despite research from the Brookings Institution that shows rates of drug use and drug dealing are roughly equal between white and black Americans.

Similar racial disparities also persist in Delaware’s criminal justice system. Recent data from Delaware’s Statistical Analysis Center shows that from 2016 to 2018, black defendants were nearly three times more likely than white defendants to be charged with a felony drug offense.

In all three counties, about two-thirds of all arrests for aggravated felony drug charges were black. Conversely, white defendants were significantly more likely than black defendants to face a misdemeanor as their highest charge.

As of 2017, roughly 60% of Delaware’s prison population was African American. At the time of the 2010 census, African Americans were 21% of Delaware’s population.

Those numbers are even worse than they sound: the Sentencing Project ranks Delaware’s proportion of black inmates 8th in the nation.

It is not an indictment of any individual to recognize that these facts and patterns represent clear failures in the system. Delaware has to be committed to combatting the addiction epidemic and to fighting high-tier drug dealing.

At the same time, we need to balance that mission with a recognition of these disparities and seek out sensible reform, particularly when it comes to the lowest-level drug offenders.

Part of that is an enforcement issue, and the Delaware Department of Justice announced in February that its prosecutors will use greater discretion on issues like low-level drug offenses, habitual offender designations, and technical violations of probation. 

But it’s also clear that a significant part of the problem is the law itself. Delaware’s drug code includes several provisions that serve to widen racial disparities in drug arrests, charging, and sentencing.

By way of example, current law enhances penalties for drug offenses within 300 feet of a park, a place of worship, or school. On paper, that policy may be well-intended; but in practice, it uniquely criminalizes drug use in cities, where any given resident is significantly more likely to live near a park, church, synagogue, or school than their counterparts in suburbs or rural areas.

We don’t have to choose between public safety and progress. We have to choose both.

That’s why we’re introducing and supporting legislation to correct, simplify, and modernize Delaware’s drug code.

This legislation eliminates geographic enhancements for parks and places of worship, and applies the geographic enhancements for school zones to drug dealing but not simple possession. It also eliminates enhancements for prior drug offenses, consolidates quantity tiers (the weight thresholds that trigger elevated offenses for higher-level dealers over lower-level users) from five tiers to three, and repeals outdated and redundant sections of code.

There is no silver bullet for multigenerational poverty, structural inequality, or the challenges of drug use and addiction; but this is an important step forward. We cannot responsibly accept a status quo where a single crime inherently carries a more severe punishment for someone living in Wilmington or Dover than it does for someone living in Middletown or Hockessin.

Delaware needs to rebalance the scales, modernize our laws, and bring our drug laws into better alignment with our shared values of equal justice and public safety. The General Assembly can take action to do that now, and we hope it will.