Incarceration by a parent also increases the likelihood that that a child will become a product of the system. Mothers in state prison (58%) were more likely than fathers (49%) to report having a family member who had also been incarcerated. Glaze and Maruschak (2009). Proponents of imprisonment will argue that it is just as traumatic for a child to witness his/her parents on drugs and going through rehabilitation. They would argue that when a person is going through rehab they will face emotional instability and may even pose a threat to the child and family. The Campbell Danger Assessment lists drug abuse as a risk factor for domestic violence. Campbell (2004).

Incarceration proponents will argue that it would be less traumatic for the child to see his parent in prison than to witness him going to rehabilitation and that it would also be safer for the family. Incarceration proponents will also argue that the child will still be required to face the potential stigma from her peers as the community will be aware that the parent is attending rehabilitation.

While these are strong arguments against rehabilitation assisting the family structure, research shows that millions of children have parents that are currently incarcerated or have been incarcerated at some point in their lives and that this is negatively affecting the family structure. An estimated 1.5 million children nationwide have incarcerated parents, around 10 million more have parents who were imprisoned at some point in their children's lives. Simmons (2000).

These children may end up foster care and are more likely to become products of the criminal system themselves. With this in mind, it is in the best interest of the child to avoid incarcerating a person if another viable option exists. In this case, rehabilitation will be the alternative viable option.

Prison Is Arbitrarily Applied

Another argument in support of rehabilitation of non-violent drug offenders is that prison sentences are arbitrarily applied and the lengths of the prison sentences are arbitrarily applied. Proponents of rehabilitation will argue that because judges have discretion, in most cases, to sentence to prison as well as discretion as to the length of the prison sentence, that inevitably some offenders will receive a sentence that is disproportionate to their actual crime. According to the Sentencing Project, more than 60% of the prison population is minorities. Sentencing Project (2010).

A May 2008 report by the Human Rights Commission found that although whites and blacks engage in drug offenses, including sales, at comparable rates, blacks make up 37% of the people arrested for drug offenses even though they only make up 12.4% of the American population. Gaines (2010).

Racial disparities are also apparent at the sentencing phase, particularly in the federal courts. According to a March 2010 U.S. Sentencing Commission report, blacks in the federal system receive 10% longer sentences than similarly situated whites charged with the same crime. When it comes to mandatory sentences, African-Americans are 21% more likely to receive mandatory minimum sentences than white defendants and 20% more [likely] to be sentenced to prison than white drug defendants. Gaines (2010).

These statistics support that a racial disparity exists in the arrest procedure and the sentencing phase. In order to reduce the racial disparity that exists in the arrest and the sentencing phase, all non-violent drug offenders should be sentenced to drug rehabilitation. Considering that 37% of individuals arrested for drug offenses are African-American a reduction in the amount of prison sentences will decrease the racial disparity in prison. Additionally, considering that African-Americans are more likely to receive longer prison sentences, sentencing non-violent drug offenders to rehab decreases the racial disparity in prison sentences. Overall, two thirds of all persons incarcerated for a drug offense is a minority. Mauer (2009).

The Crack v. Powder Disparity

The Crack Cocaine v. Power Disparity is based on a law enacted during the War on Drug

Campaign of the 1980s and supports that racial disparity in sentencing exists. The...

The disparities in the law were based on the belief that crack was more dangerous than powder cocaine. The result of the law is that African-Americans, who possessed crack more frequently than whites, were sentenced to prison more often than whites. A summary of the resulting sentencing between African-Americans and whites in different cities follows. The chart includes information Pre-War on Drugs 1980 and Post War on Drugs 2003. The chart compares the difference between these two groups in 10 U.S. cities. King (2008).
Comparison of Incarceration by Race Pre-War on Drugs and Post War on Drugs

City

Whites

1980

Whites 2003

Difference

Blacks

1980

Blacks

2003

Difference

Atlanta

-46%

Baltimore

City

Whites

1980

Whites 2003

Difference

Blacks

1980

Blacks

2003

Difference

Boston

Chicago

Detroit

-7%

62%

Houston

39%

Los Angeles

16%

2019

1913

-5%

Memphis

-17%

New York

Philadelphia

2080

First, several observations can be made not regarding racial disparity towards African-Americans based on this chart. For example, all cities with the exception of Detroit, Atlanta, and Memphis increased incarceration rates across the board -- incarceration rates increased for both whites and African-Americans. In other words, most cities increased their incarceration rates for all offenders as a result of the new law. Another observation is that in two cities, New York and Los Angeles, the percentage of whites incarcerated after the War on Drugs exceeded the number of African-Americans incarcerated.

On the other hand, the racial disparity between incarceration rates of African-Americans and whites are obvious. Regardless of the fact that in most cities the incarceration rate increased for both African-Americans and whites, the rate at which African-Americans were incarcerated after the War on Drugs oftentimes more than doubled that of the rates of whites. For example, in Atlanta, Detroit, and Memphis whites were arrested less after the War on Drugs than they were prior to it. On the other hand, African-American incarcerations rates increased in Memphis by 541%, in Atlanta by 142%, and in Detroit by 62%. There were a number of other cities where the rate of incarceration rates for drug offenses of African-Americans increased by well over 100%. Detroit and Los Angeles were the only cities where the rate at which African-Americans were incarcerated was less than 100%.

As a result of the disparity between the rates of incarceration for drugs offenses for African-Americans compared to the rate of incarceration for whites, imprisonment for non-violent drug offenses would continue to perpetrate this disparity. Based on these statistics, if an offender is facing a drug offense and is white he is less likely to face incarceration than his African-American counterpart based. Choosing to rehabilitate non-violent drug offenders will not make a problem that already exists worse, but it will help stabilize a problem that has existed for years.

On the other hand, the proponents of incarceration would assert that the higher rates of incarceration for blacks could be attributed to other factors than race. For example, an offender's prior record is considered when sentencing. Proponents will argue that the incarceration rates could be explained not by race alone, but also by prior records and that one reason that African-Americans are sentencing more often to prison and for longer periods of time is that they possibly have longer prior records. Proponents of incarceration will also argue that when punishing an offender, it is not justified to consider the individuals race as a deterrent for not incarcerating a convicted offender. The argument stated another way is that the principle of avoiding deterrence because of the racial disparity is not what the justice system is premised on. They would argue that the justice system is about retribution, deterrence, and protection of the public among others, and that to avoid imprisoning someone who has been convicted of a crime because of racial disparity is ignoring the fact that the person is deserving of punishment.

Each of these arguments has merit, but the racial disparity cannot be overlooked. Not every black offender that is sentenced to prison has a lengthy prior record. While some offenders do have lengthy prior records, many offenders sentenced to prison have no prior records. In addition, the issue is that whether those with prior records are being sentenced more harshly than a white offender with a similar record. Additionally, while using race as a deterrent for not sentencing a person is controversial, the fact is that race has been a silent factor (or not so silent factor) for sentencing a person since the inception of the justice system. The disparity that exists is based on race, so to use race as a means of correcting this disparity is not completely random. This is what the premise of affirmative action is based on.

Mental Health

Another argument in favor of rehabilitation for non-violent drug offenders is that imprisonment is more likely to adversely affect an incarcerated person's mental health and emotional stability more so than rehabilitation will. For example, there is a known prison culture and if an offender is a first time offender she will not be acclimated to this prison culture.…