Thursday, October 19, 2017

War on Drugs

Drug Wars in Black And White

 

Excerpted from: Drug Wars in Black And White, 66-SUM Law and Contemporary Problems 153-181, 153-156 (Summer 2003) (155 footnotes omitted) The article is also available at http://www.law.duke.edu/journals/66LCPKennedy.

 

Over the past two decades, we have waged war on drugs. Yet it is not likely to be news to any reader of this Symposium on race and criminal justice that the primary casualties of that war have been African Americans and other individuals of color. The debate over the racial complexion of the war against drugs often devolves into a clash of fundamental assumptions that are difficult to either validate or refute. Do we wage the war against drugs in African- American communities because "that is where the drugs are?" Or do we find most illegal drug users and sellers in African-American communities because that is where we spend most of our time looking? Do we punish the sale of crack cocaine so severely because of the effects of the drug or because of the race of those using it most openly?

Critics of the racial disparities of the current effort often point to social science research revealing high illegal drug use among whites. They reason from this evidence that many whites must be engaged in the sales and distribution of illegal drugs given the plausible--and somewhat verified-- assumption that people tend to purchase illegal drugs from members of their own race. By failing to go after white users and sellers as aggressively as African-American users and sellers, the system both creates racial disparities in justice and generates a stream of convictions that tautologically confirms the animating premise that illegal drug use is a predominantly "black problem."

There is, of course, a standard rejoinder. Law enforcement naturally and logically focuses on those communities where illegal drug use has created the most harmful and most visible effects. Selling crack openly in the streets or out of notorious "crack houses" should attract disproportionate attention. Perhaps the predominantly white students of college campuses use as much illegal drugs as denizens of inner city neighborhoods, but drug-related drive by shootings often take place in the inner city and not on college campuses. More generally, illegal drug use is seen as devastating African- American communities in a way that is not seen outside the inner city. People losing jobs, kids dropping out of school, parents neglecting or abandoning their children--all of these social costs are more readily seen in the inner city than in the more affluent white communities where illegal drug use seems to be relatively benign. Even more to the point, illegal drug use in the inner city is seen as crimogenic--the inner-city user of illegal drugs is thought to be more likely to steal or commit some other crime to finance his drug use.

It is difficult to break outside of this simplistic debate because the contemporary data about illegal activity and its consequences are difficult to collect in any way that is both comprehensive and independent. Excellent social science research has challenged some of the assumptions about the nature of drug addiction in the inner cities and its relationship to crime, but the relatively small scale of this research has been drowned out in the public debate by the mind-numbing quantities of statistics generated by the criminal justice system, statistics that purport to validate enforcement decisions to focus on inner city communities of color. Ultimately, however, the criminal justice system is destined to find crime only where it looks for crime.

One way to break out of this debate is to turn to history. Comparisons over time are always imperfect, but they do provide a slightly more detached perspective on matters of controversy, a detachment born of the lower level of investment we feel about social practices in the somewhat distant past. Critics of the current war against drugs often surmise that the war would be waged far differently--or abandoned altogether--if whites were prosecuted and imprisoned more frequently than has been the case. History provides a qualified opportunity to explore this theory.

During the 1920s our government waged a major drug war. It was a two-front war against both alcohol and narcotics. The nation's experiment with Prohibition took place during this time, and the first determined effort to enforce the Harrison Act, our first national anti-narcotics law, was well underway. This article reveals that the drug wars of the twenties were both far less punitive and far more color-blind than our recent efforts. Compared to the current war on drugs, these first national efforts at substance abuse control involved far less prison time for far fewer people. More to the point of this Symposium, the casualties were primarily white: African Americans were relatively under-represented among those imprisoned for narcotics and prohibition violations during the 1920s.

While such statistics suggest that race plays some role in shaping how punitively drug wars are prosecuted, they do not tell us much about how that influence works. This article also explores how race influences the severity of punishment in our current drug war. Whereas past drug wars have occurred during periods of general moral intolerance, the current war against drugs has broken out of this cycle. Our first war against narcotics in the twenties took place alongside a campaign against the mainstream drug of American society--alcohol. The current war against drugs has taken place during a time when the use of legal drugs has grown explosively. From overcoming shyness to losing weight to enhancing sexual or athletic performance to simply being happier--the 1990s saw a growth in the use of ingestible substances to deal with almost every type of problem imaginable.

In the absence of a strong cultural norm of self-restraint with respect to drug use generally, the justification for the current war against drugs rests heavily on an epidemiological form of morality that turns on the risks of harm that flow from the use of a drug by a given population. Notions about the harmfulness of a drug have always been inextricably intertwined with the race of those who use it, and drug use by minorities is usually seen as more harmful than drug use by whites in our society. The unparalleled severity of the current war against drugs rests, however, on greatly exaggerated notions of harm, particularly with respect to crack cocaine. For all its moralism and quasi-religious fervor, the crucial and inequitable premise of our current drug war is that whites can "handle their drugs" better than African Americans can. The result has been a drug war that is unprecedented in both its punitiveness and in its racially disparate impact--the criminal justice equivalent of total war.

These exaggerated notions of the harms of illegal drug use by African Americans are a perverse result of the liberality with which mainstream society views legal drugs. Our increasingly laissez-faire approach to legal drugs has produced profound anxieties about the absence of norms of self-restraint, and mainstream society exorcises those anxieties by overpunishing those who use illegal drugs. Race is the essential lubricant that makes this dysfunctional compromise work. The "otherness" of African Americans and other persons of color enables mainstream society to imagine the use of illegal drugs to be so much more harmful than legal drugs even though they are increasingly being used for related purposes.

The remainder of this article proceeds in two parts. Part II provides some background for the drug wars of the 1920s and lays out the statistical case that the drug wars of the twenties were both far less punitive and far less disparate in terms of its impact on whites and African Americans than our current drug war. Part III explores the cultural dynamics of the current war against drugs and the role that race plays in those dynamics. The conclusion briefly touches on the policy implications of this analysis for judges and legislators.

. Associate Professor of Law, University of North Carolina School of Law.

The Drug War as Race War

Kenneth B. Nunn

excerpted from, Kenneth B. Nunn, Race, Crime and the Pool of Surplus Criminality: or Why the 'War on Drugs' Was a 'War on Blacks', 6 Journal of Gender, Race and Justice 381-445, 386-412, 422-427 (Fall 2002) (519 Footnotes Omitted)

The War on Drugs that has been a centerpiece of American foreign and domestic policy over the past two decades should not be viewed as a war against a particular collection of inanimate objects. The War on Drugs in this sense is but a convenient, yet inaccurate, metaphor. Instead the War on Drugs should be understood as a special case of what war has always been-the employment of force and violence against certain communities, and/or their institutions, in order to attain certain political objectives. Race has played an important role over the years in identifying the communities that became the targets of the drug war, consequently exposing their cultural practices and institutions to military-style attack and police control. Although the drug war has certainly sought to eradicate controlled substances and destroy the networks established for their distribution, this is only part of the story. As I shall explain, state efforts to control drugs are also a way for dominant groups to express racial power. Before addressing the historical and culturally entrenched connection of drug control and race, I first want to explore the origins of the most recent round of American anti- drug policies-the so-called War on Drugs-and examine the impact of these policies on African American communities.

A. The War on Drugs

1. Origins of the Drug War

In October of 1982, President Ronald Reagan declared war on drugs. Speaking to the nation in his weekly radio address, Reagan promised a 'planned, concerted campaign' against all drugs-'hard, soft or otherwise. ' Reagan described his campaign in military terms, using words like 'battle,' 'war,' and 'surrender.' '[W]e're going to win the war on drugs,' he vowed. President Reagan increased anti-drug spending and increased the number of federal drug task forces. Most importantly, the Reagan administration launched a public relations campaign designed to change the public perception of drug use and the threat posed by illegal drugs. The centerpiece of this public relations campaign was a new rhetorical strategy that sought to demonize drugs and ostracize drug users. Presidents Bush and Clinton continued the Reagan administration's anti-drug policies. President Bush established a national office of drug policy, appointed a drug 'czar,' increased anti-drug spending and intensified drug law enforcement efforts. President Clinton, for his part, increased the anti-drug budget by twenty-five percent, proposed expanded drug testing rules and intensified efforts toward drug interdiction and prosecution.

No matter who has occupied the executive branch, the United States has pursued the same overall policies throughout the drug war. Anti-drug policies can be separated into two general camps, 'supply-reduction' and 'demand-reduction.' Supply-reduction strategies seek to reduce the availability of drugs by limiting access to drug sources and increasing the risks of drug possession and distribution. Demand-reduction strategies, on the other hand, seek to reduce demand for illegal drugs through drug use prevention and treatment. The rhetoric of war helped shape the strategies that were used to combat the perceived drug threat. The Reagan administration embraced a supply-reduction strategy focusing on interdiction, seizure and criminal prosecution, rather than a demand-reduction strategy that focused on public education and drug treatment designed to reduce demand for illegal drugs. The supply-reduction strategy adopted by the Reagan administration fits a war model of the drug problem. Viewing the drug problem through a war model implies that the perceived drug problem can be attacked through aggressive law enforcement measures designed to seek out and destroy contraband and interrupt distribution networks. These kinds of measures are more analogous to the military tactics one would expect to see in warfare than are demand-reduction measures, which are primarily social service based.

According to Michael Tonry, the drug war was 'fought largely from partisan political motives to show that the Bush and Reagan administrations were concerned about public safety, crime prevention, and the needs of victims. ' While the drug war may have been initiated out of political motives, this assessment does not tell the entire tale. To understand the origins of the War on Drugs in its entirety, we must know what was going on in the cultural landscape that made it politically advantageous to fight a war on drugs.

When Reagan declared war on drugs, a broad cultural change was underway in the United States. The country was moving from a period of relative liberalism that included skepticism toward government and authority and an emphasis on personal freedoms, to a period of relative conservatism that included respect for government and authority and an emphasis on personal responsibility. Reagan's very election to the presidency was in large part a manifestation of this shift in attitudes. Reagan was the embodiment of a mainstream reaction to the counterculture of the 60s and 70s. Part of this sea change in cultural attitudes was a different perspective toward drugs.

In 1982, when the drug war began, the recreational use of illegal drugs was in decline. Tonry points out that in 1982, surveys conducted by the National Institute on Drug Abuse showed significant drops in drug usage over long periods for a wide range of age groups. This decline impacted the use of both legal and illegal substances. For example, the percentages of respondents 18 to 25 years of age reporting marijuana use during the preceding year dropped by approximately 15% between 1979 and 1982, and continued to decline sharply throughout the decade of the 80s. Reported use of cocaine by the same age group also dropped by approximately 15% between 1979 and 1982, and continued to decline throughout the decade. Finally, 18 to 25 year olds who reported using alcohol during the preceding year rose only slightly from 1979 to 1982, but also declined sharply following a peak in 1985. According to Tonry, these statistics 'signal a broadly based and widely shared change in American attitudes toward the ingestion of dangerous or unhealthy substances that can have little to do with the deterrent effects of law enforcement strategies or criminal sanctions. ' Consequently, Reagan's declaration of war tapped into a growing public sentiment against illegal drug use. Many citizens viewed drugs as a menace and many of these same citizens were readily supportive of Reagan's proposals to address the drug problem.

This widespread public support explains the political value of the War on Drugs. The cultural environment created virtually unanimous bi-partisan support for an extensive and costly intervention into the world of drugs. Both Republicans and Democrats sought to exploit the public sentiment against drugs. The drug war also fostered a remarkable level of cooperation between the executive and legislative branches. In response to Reagan administration proposals, Congress quickly moved to pass and fund tough drug enforcement initiatives. Fueled by political considerations, the drug war took on a life of its own. For each anti-drug measure that passed, it became necessary to further escalate the war so that no one, Democrat or Republican, executive or legislative branch, could be called soft on this critical issue.

In addition to shaping the methods used to address the drug problem, the rhetoric of war also shaped the impact of those methods, for a war requires not only military strategies, but an enemy as well. For the constituency the Reagan Administration was trying to reach, it was easy to construct African Americans, Hispanics, and other people of color as the enemy in the War on Drugs. These are the groups that the majority of white Americans have always viewed as the sources of vice and crime. Reagan's anti- drug rhetoric was skillfully designed to tap into deeply held cultural attitudes about people of color and their links to drug use and other illicit behavior. According to mass communications scholar William Elwood, Reagan's rhetorical declaration of a war on drugs had a deliberate political effect. In Elwood's view, 'Such rhetoric allows presidents to appear as strong leaders who are tough on crime and concerned about domestic issues and is strategically ambiguous to portray urban minorities as responsible for problems related to the drug war and for resolving such problems.' Thus, the origins of the drug war can be traced to shifting public attitudes toward drugs in the early 1980s. President Reagan sought to exploit this change in attitude through a public relations campaign that promised to wage 'war on drugs.' As the metaphor of war might suggest, the War on Drugs required both weapons and enemies. A punitive law enforcement policy of prohibition and interdiction provided the weapons and, while the professed enemies of the War on Drugs were drug cartels in drug source countries, those most affected were people of color in inner city neighborhoods, chiefly African Americans and Hispanics.

2. How the Drug War Targeted Black Communities

By almost any measure, the drug war's impact on African American communities has been devastating. Millions of African Americans have been imprisoned, many have been unfairly treated by the criminal justice system, the rights of both legitimate suspects and average citizens have been violated and the quality of life of many millions more has been adversely affected. These effects are the consequences of deliberate decisions; first, to fight a 'war' on drugs, and second, to fight that war against low-level street dealers in communities populated by people of color. In this section, I consider the impact of the War on Drugs specifically on the African American community.

a. Mass Incarceration and Disproportionate Arrests

As a result of the War on Drugs, African American communities suffer from a phenomenon I call 'mass incarceration.' Not only are large numbers of African Americans incarcerated, African Americans are incarcerated at percentages that exceed any legitimate law enforcement interest and which negatively impact the African American community. While African Americans only comprise twelve percent of the U.S. population, they are forty-six percent of those incarcerated in state and federal prisons. At the end of 1999, over half a million African American men and women were held in state and federal prisons. A disparity this great appears inexcusable on its face. However, the inequity is even worse when one considers the rate of incarceration and the proportion of the African American population that is incarcerated.

The rate of incarceration measures the likelihood that any African American male will be sentenced to prison. In 2000, the rate of incarceration for African American males nationwide was 3457 per 100,000. In comparison, the rate of incarceration for white males was 449 per 100,000. This means, on average, African American males were 7.7 times more likely to be incarcerated than white males. For some age groups, the racial disparities are even worse. For young men between the ages of 25 and 29, African Americans are 8.7 times more likely to be incarcerated than whites. For 18 and 19 year olds, African American men are 8.8 times more likely to be incarcerated than whites.

Another way to measure the extent of mass incarceration is to examine the proportion of the African American population that is serving time in prison. In some jurisdictions, as many as one third of the adult African American male population may be incarcerated at any given time. Nationwide, 1.6 % of the African American population is in prison. However, nearly 10% of African American males ages 25-29 are in prison. Nearly 8% of African American males between the ages of 18 and 39 are in prison.

The mass incarceration of African Americans is a direct consequence of the War on Drugs. As one commentator states, 'Drug arrests are a principal reason that the proportions of [B]lacks in prison and more generally under criminal justice system control have risen rapidly in recent years.' Since the declaration of the War on Drugs in 1982, prison populations have more than tripled. The rapid growth in prison populations is particularly clear in federal institutions. Although the overall federal prison population was only 24,000 in 1980, by 1996, it had reached 106,000. The federal prison population continued to grow in the 1990s. In 2000, the federal prison population exceeded 145,000. Fifty-seven percent of the federal prisoners in 2000 were incarcerated for drug offenses. In 1982 there were approximately 400,000 incarcerated persons. By 1992, that number had more than doubled to 850,000. In 2000, there were over 1.3 million persons in prison. From 1979 to 1989, the percentage of African Americans arrested for drug offenses almost doubled from 22% to 42% of the total. During that same period, the total number of African American arrests for drug abuse violations skyrocketed from 112,748 to 452,574, an increase of over 300 %.

Jerome Miller analyzed arrest statistics from several American cities to determine the impact of the War on Drugs on policing. He found striking racial disparities in how drug arrests were made. In many jurisdictions, African American men account for over eighty percent of total drug arrests. In Baltimore, for example, African American men were eighty-six percent of those arrested for drug offenses in 1991. The fact that African Americans are incarcerated in such large percentages and are arrested and incarcerated at such disproportionate rates is shocking. It is obscene in the absence of a strong showing that African Americans are responsible for a comparable percentage of crime in the United States.

The claim that African Americans violate the drug laws at a greater rate, and that this justifies the great disparities in rates of arrest and incarceration, seems unlikely. Most drug arrests are made for the crime of possession. Possession is a crime that every drug user must commit and, in the United States, most drug users are white. The U.S. Public Health Service Substance Abuse and Mental Health Services Administration reported in 1992 that 76% of drug users in the United States were white, 14% were African American, and 8% were Hispanic. Cocaine users were estimated to be 66% white, 17.6% Black, and 15.9% Hispanic. Rather than demonstrating patterns of use that approach arrest disparities, African Americans 'are less likely to . . . [use] drugs than whites are, for all major drugs of abuse except heroin.'

There also seems to be insufficient evidence to conclude that African Americans are more likely to deal drugs, and thus more likely to be arrested. Most drug users purchase drugs from persons of the same race and socio-economic background. So, the large numbers of white users would suggest an equally large number of white dealers, as well. On the other hand, there are logical reasons to conclude that the number of African American dealers may be disproportionately large. Still, it is unlikely that drug use and offense are so out of balance that Blacks constitute the vast majority of drug offenders given that they are such a small minority of drug users.

Disproportionate enforcement is a more likely cause of racial disparities in the criminal justice system than is disproportionate offending. Differences in the way that Black dealers and white dealers market drugs may encourage law enforcement officers to concentrate efforts against African Americans. Michael Tonry argues that it is easier for police to make arrests in 'socially disorganized neighborhoods' because drug dealing is more likely to occur on the streets and transient drug buyers are less likely to draw attention to themselves.

In addition, disproportionate arrests may simply be a function of discriminatory exercise of discretion by police officers. Police officers may decide to arrest African Americans under circumstances when they would not arrest white suspects, and they may be in a position to do so more frequently than with whites because they are more likely to stop and detain African Americans.

b. Crack Cocaine and Sentencing Disparities

Perhaps no aspect of the drug war has contributed to the rapid increase of African American prisoners in federal prisons more than the federal cocaine sentencing scheme. Federal sentencing rules for the possession and sale of cocaine distinguish between cocaine in powder form and cocaine prepared as crack. A person sentenced for possession with intent to distribute a given amount of crack cocaine receives the same sentence as someone who possessed one hundred times as much powder cocaine. This difference in sentencing exists notwithstanding the fact that cocaine is cocaine, and there are no physiological differences in effect between the powder and the crack form of the drug.

The difference in crack/powder cocaine sentencing is significant because African Americans are more likely to use crack, while white drug users are more likely to use powder cocaine. Since the passage of the Anti-Drug Abuse Act of 1986, which first enacted the crack/powder sentencing disparity, virtually all federal cocaine prosecutions have been against African Americans charged with the possession or sale of crack cocaine. Although, the disproportionate racial impact of the Anti- Drug Abuse Act of 1986 has been noted by the U.S. Sentencing Commission, neither Congress nor the executive branch has moved to rectify the disparities in the law.

The disparity in cocaine sentencing is obvious and may be traced to the language of the underlying statute. Even in the absence of such a manifest cause of discrimination, African Americans have traditionally received more severe sentences than similarly situated whites. Although it is by no means conclusive, there is substantial evidence that racial discrimination within the criminal justice system is the cause of the sentencing disparities that exist between Blacks and whites. Numerous surveys have found racial disparities in the sentencing process and attributed those disparities to racial discrimination. For example, a study by Miethe and Moore in 1984 found that African Americans received longer sentences than whites and that African Americans were less likely to benefit from lower sentences as a result of plea-bargaining. Likewise, Welch, Spohn, and Gruhl reviewed convictions and sentences in six cities nationwide in 1985. They found that African Americans were substantially more likely to be sentenced to prison than whites and that the disparity in incarceration rates is due to 'discrimination in the sentencing process itself.' In 1983, Baldus, Pulaski, and Woodworth subjected death sentences in Georgia to painstaking review. Using multiple regression analysis to control for over 230 nonracial factors, the researchers found that the race of the victim was the determining factor in whether a defendant received the death penalty. They found defendants who killed white victims were over four times more likely to receive a death sentence than defendants whose victims were not white. In addition, African American defendants who killed whites were eleven times more likely to receive a death sentence than white defendants who killed Blacks.

Racial discrimination in sentencing can only be worsened by efforts to make sentences tougher and harsher. The War on Drugs has spawned a panoply of 'get tough on crime' measures such as 'three strikes and you're out' and habitual offender provisions, as well as enhancements for possession of weapons and for selling drugs near schools or public housing. The cumulative effect of these sentencing policies has been to increase the proportion of convicted drug dealers sentenced to prison and increase the length of their sentences. A substantial increase in length of sentence for drug offenders is precisely what Marc Mauer found when he analyzed the impact of mandatory sentences in the federal court system. Mauer observed:

Drug offenders released from prison in 1990, many of whom had not been sentenced under mandatory provisions, had served an average of 30 months in prison. But offenders sentenced to prison in 1990-most of whom were subject to mandatory penalties-were expected to serve more than twice that term, or an average of 66 months.

Guideline sentencing has also contributed to the increase in African Americans incarcerated as a result of the drug war. The Federal Sentencing Guidelines, by depriving judges of discretion, have resulted in many more defendants serving substantially longer sentences. This combined with the fact that African Americans in general usually get longer sentences than comparably situated whites, means that drug war sentencing has been particularly unkind to African Americans.

c. Driving While Black, Drug Sweeps and the Overpolicing of the African American Community

The gross disparities that exist in the criminal justice system may be traced to the differential treatment that African Americans and other people of color receive from the police. A growing body of evidence suggests that Blacks are investigated and detained by the police more frequently than are other persons in the community. This unwarranted attention from the police is a result of the longstanding racism that pervades American culture. Like all who are socialized in American culture, police officers are more suspicious of African Americans and believe they are more likely to engage in crime. Consequently, police concentrate their efforts in areas frequented by African Americans and detain African Americans at a greater rate.

In part, this concentration of effort may be designed to uncover specific illegal activity. Certain police activity, such as undercover drug buys, may be more frequent in African American communities than in other areas of a city. As a consequence, a disproportionate number of African American drug dealers may be arrested, leading to racial disparities in drug prosecutions and sentencing. To the extent that the concentration of investigation and arrests in African American communities exceeds that in white communities, without reason to believe that African Americans offend at a greater rate than whites, then such practices amount to unjustified 'over- policing.' Over-policing may also occur when the police concentrate their efforts not on illegal activity, but on legitimate citizen behavior with the hope that in the process of investigation some evidence of crime may be uncovered. This kind of over-policing is what occurs when police conduct drug sweeps in Black neighborhoods and detain African American motorists for 'driving while Black.'

'Driving while Black' refers to the police practice of using the traffic laws to routinely stop and detain Black motorists for the investigation of crime in the absence of probable cause or reasonable suspicion for the stop. There is reason to believe that this is a widespread practice performed by police officers throughout the nation. Many prominent African Americans have reported being victimized by these stops. Although they have unfortunately become routine, '[s]uch stops and detentions are by their very nature invasive and intrusive.'

The intrusive and invasive practice of detaining African American motorists without cause has occurred in other contexts as well. 'Driving while Black' is essentially a type of racial profiling. People have claimed to be the victims of racial profiling while walking on the street, shopping or strolling through department stores and malls, seeking entry into buildings, traveling through airports, or passing through immigration checkpoints. In all of these situations, African Americans are subjected to police harassment and denied the freedom of movement to which other citizens are entitled.

Perhaps the most egregious intrusion into the rights of African Americans occurs during so-called 'drug sweeps.' 'Drug sweeps' or 'street sweeps' occur when the police simply close off a neighborhood and indiscriminately detain or arrest large numbers of people without lawful justification. Police conduct street sweeps in order to subject those caught in the dragnet to questioning and searches in the absence of probable cause or reasonable suspicion. One such drug sweep, which occurred in New York City, was described in the following account:

In a publicized sweep on July 19, 1989, the Chief of the Organized Crime Control Bureau (OCCB), led 150 officers to a block in upper Manhattan's Washington Heights. Police sealed off the block and detained virtually all of the 100 people who were present there for up to two hours, during which time the police taped numbers on the chests of those arrested, took their pictures and had them viewed by undercover officers. By the end of the operation, police made only 24 felony and two misdemeanor arrests . . . which strongly suggests there was no probable cause to seize those who were arrested.

African Americans have long had to suffer police harassment and disregard for their rights. However, the drug war made the types of police harassment described above more likely to occur. One of the key consequences of the War on Drugs is that courts have relaxed their oversight of the police. In a series of decisions written since the declaration of war on drugs, the Supreme Court has made it easier for the police to establish grounds to stop and detain motorists and pedestrians on the street. In particular, two recent decisions have made it virtually impossible for African Americans to move freely on the streets without police intervention and harassment.

In Whren v. United States, the Supreme Court held that an officer's subjective motivations for a stop were irrelevant to Fourth Amendment analysis, and that the legitimacy of the stop should solely be determined by an objective analysis of the totality of the circumstances. Under Whren, so long as an officer can offer an 'objective' reason for a detention or arrest, it does not matter whether the officer's 'real' reason for the stop was racist. In Illinois v. Wardlow, the Supreme Court ruled that the flight of a middle-aged Black man from a caravan of Chicago police officers provided reasonable suspicion for his detention and search. In the majority's view, African Americans have no legitimate reason to flee the police. Thus, the Court, in essence, established a per se rule that flight equals reasonable suspicion. As Professor Ronner has remarked, this perspective takes 'an apartheid approach to the Fourth Amendment and actively condones police harassment of minorities. '

d. No-Knock Warrants, SWAT Teams and Military-Style Police Tactics

The War on Drugs has led to the militarization of police departments across the nation. More specifically, it has led to the increased deployment of military-style tactics for crime control in African American communities, with a correspondently greater potential for death and destruction of property. As these new tactics have become commonplace, the role of police has changed, altering the character of many police departments from law enforcement agencies to military occupation forces.

The militarization of local police forces can be traced to the proliferation of paramilitary police units, often referred to as Special Weapons and Tactics (SWAT) teams. Los Angeles established the first SWAT team in the 1960s. Originally, paramilitary police units were intended for use in special circumstances, such as hostage situations and terrorist attacks. In the 1960s and 70s, there were few SWAT units; those that existed were typically found in large metropolitan areas. However, the policies and practices of the drug war encouraged the use of SWAT teams to expand rapidly into small and medium sized cities throughout the country. As a consequence, 'most SWAT teams have been created in the 1980s and 1990s. ' A study by Peter Kraska and Victor Kappeler showed that by 1997, in cities with populations over 50,000, SWAT teams were operated by nearly ninety percent of police departments surveyed. Surprisingly, the survey also disclosed that seventy percent of the police departments in cities under 50,000 had paramilitary units, as well.

SWAT units have provided a conduit for the transfer of military techniques and materials into the hands of ordinary police departments. As a result of a 1994 Memorandum of Understanding between the Justice Department and the Department of Defense, civilian police departments have access to 'an array of high-tech military items previously reserved for use during wartime.' Between 1995 and 1997, the U.S. military donated 1.2 million pieces of military hardware to domestic police departments, including 73 grenade launchers and 112 armored personnel carriers. Other sophisticated equipment provided to police departments includes the following: 'automatic weapons with laser sights and sound suppressors, surveillance equipment such as Laser Bugs that can detect sounds within a building by bouncing a laser beam off a window, pinhole cameras, flash and noise grenades, rubber bullets, bullet-proof apparel, battering rams, and more.'

Although originally intended for extreme and dangerous situations that were beyond the response capability of regular police patrols, the ubiquity of SWAT teams means that police departments often use their paramilitary units for routine law enforcement activities. The main use of a SWAT team in departments throughout the country appears to be to support the drug war. According to Kraska and Kappeler, the respondents to their survey 'reported that the majority of call-outs were to conduct what the police call ' high risk warrant work,' mostly 'drug raids.'' Less than twenty percent of paramilitary police unit calls were for situations understood as typically amenable to SWAT team intervention. Particularly in so-called 'high crime areas,' police departments are likely to use SWAT teams as proactive units to seek out criminal activity, as opposed to using them solely to respond to a crisis situation. Kraska and Kappeler found 107 departments that used paramilitary police units as a proactive patrol in high crime areas. According to some of the SWAT team commanders that Kraska and Kappeler interviewed, '[T]his type of proactive policing-instigated not by an existing high risk situation but one generated by the police themselves-is highly dangerous for both PPU [police paramilitary unit] members and citizens.'

Warrant work conducted by SWAT teams 'consists almost exclusively of what police call 'no-knock entries.'' The potential danger of allowing police officers to enter homes and businesses without announcing their identity and purpose has been well-known since colonial times. Officers may startle residents who may seek to defend their homes. Officers may inadvertently harm residents or innocent bystanders by the use of force necessary to effect the sudden entry of targeted buildings. Breaking into buildings through surprise and stealth seems like a tactic better suited to an occupying army, then to civilian peace officers. However, the drug war has worn down the traditional resistance to the no-knock warrant. Since the onset of the drug war, courts have been willing to legalize no-knock warrants and issue them to the police. Thus, African American communities are now subject to this potentially dangerous and intimidating police technique.

The extension of paramilitary police units into everyday policing not only escalates the degree of force and violence that may be interposed between citizens and the state, it also escalates the likelihood that more forceful methods will actually be used. In the context of a war on drugs, the identification of drug users and dealers as an enemy upon whom force may be used, is not surprising. The very use of the metaphor of 'war,' as a conceptual matter, implies the use of force. As Kraska and Kappeler state:

[I]t takes little acumen to recognize how the metaphor of 'war'--with its emphasis on occupation, suppression through force, and restoration of territory---coincides naturally with the 'new science' of the police targeting and taking control, indeed ownership, of politically defined social spaces, aggregate populations, and social problems with military-style teams and tactics.

Thus, the growing collaboration between the police and the military can be expected to have ideological consequences, as well as technological ones. As police paramilitary units train with military organizations, they may be encouraged to develop what amounts to a 'warrior mentality.' While training 'may seem to be a purely technical exercise, it actually plays a central role in paramilitary subculture,' as several scholars of police behavior have observed. The inoculation of a 'warrior mentality' in police officers, however, is inappropriate because police and military have different social functions:

The job of a police officer is to keep the peace, but not by just any means. Police officers are expected to apprehend suspected law-breakers while adhering to constitutional procedures. They are expected to use minimum force and to deliver suspects to a court of law. The soldier on the other hand, is an instrument of war. In boot camp, recruits are trained to inflict maximum damage on enemy personnel. Confusing the police function with the military function can have dangerous consequences. As Albuquerque police chief Jerry Glavin has noted, 'If [cops] have a mind-set that the goal is to take out a citizen, it will happen.'

The danger that SWAT teams pose to inner-city communities has been exposed by several incidents in which citizens have been unnecessarily harmed as a result of paramilitary police activity. In Dinuba, California, a man was wrongly killed when a SWAT team stormed his house looking for one of the man's sons. The man was shot fifteen times before he or his wife could determine who was breaking into their house and why. Albuquerque, New Mexico has experienced several controversial SWAT team killings. Professor Samuel Walker of the University of Nebraska was hired by the City of Albuquerque to evaluate police department policies and procedures. 'According to Walker, 'The rate of killings by the police was just off the charts. . . . They had an organizational culture that led them to escalate situations upward rather than de-escalating.'. . . [T]he mindset of the warrior is simply not appropriate for the civilian officer charged with enforcing the law.'

As a consequence of the War on Drugs, the use of military-style weapons and tactics by police departments throughout the nation has become routine. Police departments are locked in a race to see who can arm themselves with the most powerful weaponry available for civilian use. Yet, the easy manner in which military technology can be obtained, and the militaristic attitudes that police officers using this technology also acquire, pose potential dangers to citizens who are unfortunate enough to encounter paramilitary police units, especially those African Americans who live in the areas where these units regularly patrol.

3. Tonry's Thesis: Did Drug Policy Makers Intentionally Target the Black Community?

In 1995, Michael Tonry, a criminologist and law professor at the University of Minnesota, wrote a book published by the Oxford University Press entitled 'Malign Neglect: Race, Crime and Punishment in America.' In his book, Tonry proffered a thesis, which generated a significant amount of controversy. Tonry charged that the racial disparities in the criminal justice system were not merely happenstance, but the result of a 'calculated effort foreordained to increase [the] percentages [of Blacks in prison].' According to Tonry, the planners of the drug war knew that the War on Drugs was unnecessary, and that the policies they selected to fight the War on Drugs would not work. More critically, Tonry charged that the drug war's planners were aware that the ineffective policies they proposed to implement would adversely affect African American males.

The War on Drugs was unnecessary, according to Tonry, because drug use was already declining in the United States, and had been doing so for several years. If less and less Americans were using drugs, then a costly war to reduce drug usage would not seem to make sense. More importantly, Tonry charged, even if the drug war was necessary to address a burgeoning problem with illegal drugs in the United States, the policies the drug warriors selected to deal with that problem were not likely to work. Tonry argues that changes in drug usage are best effected through a combination of supply reduction and demand reduction strategies. The anti-drug policies of the Reagan and Bush administrations were skewed too far in favor of supply reduction approaches to be effective. The drug policy strategists who planned the drug war, Tonry asserts, knew this.

Tonry's most explosive charges addressed the racial imbalance in drug war motivated arrests, prosecutions, and convictions. According to Tonry, 'The War on Drugs foreseeably and unnecessarily blighted the lives of hundreds of thousands of young disadvantaged [B]lack Americans.' Tonry believes the planners of the drug war knew their decision to increase penalties for drug possession and sale would adversely and disproportionately affect African Americans because while white middle-class drug use was declining, other data showed that drug use among poor, urban African Americans and Hispanics remained steady. In Tonry's words:

The white-shirted-and-suspendered officials of the Office of National Drug Control Policy understood the arcane intricacies of NIDA surveys, DUF, and DAWN better than anyone else in the United States. They knew that drug abuse was falling among the vast majority of the population. They knew that drug use was not declining among disadvantaged members of the urban underclass. They knew that the War on Drugs would be fought mainly in the minority areas of American cities and that those arrested and imprisoned would disproportionately be young blacks and Hispanics.

Thus, the adverse impact of the drug war could not be accidental. The architects of the drug war had to know who would be most affected by their policies. They had to understand what Daniel Patrick Moynihan pointed out in 1993 when he said '[B]y choosing prohibition [of drugs] we are choosing to have an intense crime problem concentrated among minorities.' At best, according to Tonry, the explosion in the Black prison population was 'a foreseen but not an intended consequence' of the War on Drugs. At worst, Tonry says, it was 'the product of malign neglect'-a consequence that was malicious and evil.

If the architects of the drug war knew their plans would have devastating impact on the African American community, then they apparently did not care. What could provide the motive for such an assault on African Americans? According to Tonry, the motive was two-fold. First, Tonry claims that to the extent the Reagan and Bush administrations attempted to craft an actual drug policy, they intended to use the criminalization of behaviors disproportionately found in the African American and Hispanic community to shape and encourage anti-drug values and beliefs in the white community. Thus, the drug war was 'an exercise in moral education' that inflicted great damage on young African Americans and Hispanics 'primarily for the benefit of the great mass of, mostly white, non-disadvantaged Americans.' But Tonry suggests there is another, more sinister, reason for the sacrifice of the young African American victims of the drug war. According to Tonry, the drug war was 'launched to achieve political, not policy objectives.' Reagan's advisors wanted to reap the political benefits of appearing tough on drugs at a time when drug use had fallen into disfavor with the American public. The drug war, then, was a cynical way to 'use . . . disadvantaged [B]lack Americans as a means to the achievement of politician's electoral ends.'

. . .

To fully understand the significance of the drug trade and the oppression of African people and other people of color, one must recognize the central role drug trafficking has played in the European conquest of other cultures and the maintenance of white supremacy worldwide. Addictive and deleterious substances have historically been used to undermine non-European societies and further white interests. In this connection, drugs can be used to weaken a country or culture internally and limit its ability to resist white economic or cultural intrusion. This classic use of drugs for political purposes is what happened to China during the Opium Wars. The supply of alcohol to Native Americans in North America is also a primary example of the use of drugs for oppression.

In more recent times, drugs have been used to advance the political interests of European and European-derived countries in two additional ways. First, as a means to generate finances for covert or 'off the book' activities, and secondly, as a way to reward collaborators and favored parties in countries under attack with a lucrative franchise. In 1946, the French began a secret war against the Viet Minh in Indochina, which they financed by taking over the opium trade in that region. The covert action branch of the French intelligence service, Service d'action, transported large amounts of opium into Saigon and used the profits from the drug trade for covert operations. The United States used the same tactics when it inherited the Indochinese war from the French. To support its mercenary armies, the CIA ferried the opium its clients produced out of the hills of Laos to urban markets. The CIA later relied on heroin smuggling to finance covert operations in Afghanistan and cocaine trafficking to fund military support for the Nicaraguan Contras.

Many in the African American community have long believed that the United States government has been implicated in the drug epidemics that have swept through the Black community over the years. Many African Americans have reached this conclusion after observing the correlation between periods of high Black political activism swiftly followed by periods of easy drug availability in the Black community. In August of 1996, news reports surfaced that stoked African American fears that the government was behind the influx of drugs into the Black community. Gary Webb wrote a series of stories in the San Jose Mercury News, alleging that the government was allowing Nicaraguan Contra supporters to smuggle crack into south-central Los Angeles in order to support their war against the Nicaraguan government. 'For the better part of a decade,' wrote Webb, 'a San Francisco Bay Area drug ring sold tons of cocaine to the Crips and Bloods street gangs of Los Angeles and funneled millions in drug profits to a Latin American guerilla army run by the CIA.' The stories caused a sensation at the time and led to the extraordinary appearance of CIA Director John Deutch at a town hall meeting in south-central Los Angeles in an attempt to defuse the anger of the Black community. Although Webb's story was viciously attacked in some quarters, it was just the tip of the iceberg. Both preceding and subsequent investigations have bolstered Webb's disclosures and expanded the range of government culpability.

While the government was trumpeting its War on Drugs and an anti-drug culture ideology, it was in fact deeply involved in the drug trade. The government had organized and financed organizations that were importing massive amounts of drugs into the African American community and the government looked the other way while they did it. At the same time, the government was vigorously enforcing harsh drug laws that led to police harassment and intimidation of African American communities and the mass arrest and incarceration of low-level drug dealers. These law enforcement efforts had enormously deleterious effects on the entire African American community and did little to stem the tide of illegal drugs. Consequently, the Black community was targeted by a vicious three- pronged assault; a drug epidemic with all of the attendant social, health and economic costs; a draconian prosecution-centered drug policy that did not stop the flow of illegal drugs and exacerbated the Black community's social and economic problems; and the callous exploitation of the African American community's misery to advance the government's larger geo-political ends.

[1]. Professor of Law, University of Florida, Levin College of Law.

[1]. By 'War on Drugs' I mean the anti-drug policies and law enforcement practices commenced by the Reagan administration in the fall of 1982 and continued by the Bush and Clinton administrations until at least the end of the year 2000. This period is only the most recent manifestation of America's ongoing war against drugs. Clarence Lusane states that '[n]early every President since World War II has declared a 'war on drugs.'' Clarence Lusane, Pipe Dream Blues: Racism and the War on Drugs 77 (1991). Steven Witsotsky has identified three wars against drugs in American history. See Steven Witsotsky, Beyond the War on Drugs: Overcoming a Failed Public Policy xvii-xviii (1990). The first began with the passage of the Harrison Act in 1914 and includes the period of its enforcement by the Department of the Treasury. Id. at xvii. President Nixon commenced the second in the late 1960's. Id. at xviii. Nixon's 'total offensive' against drugs set the pattern for the drug war waged by Reagan, Bush and Clinton. See id. For more on America's earlier drug wars, see Edward J. Epstein, Agency of Fear (1977) (examining anti-drug campaigns from the turn of the century through the Nixon presidency). It remains to be seen whether the younger Bush will continue the federal government's drug war policies, since law enforcement resources and priorities have shifted to 'the war against terrorism.'

Black Men as Non-citizens: After the War on Drugs

 Brian G. Gilmore and Reginald Dwayne Betts

Excerpted from: Brian G. Gilmore and Reginald Dwayne Betts,  Deconstructing Carmona: the U.S. War on Drugs and Black Men as Non-citizens, 47 Valparaiso University Law Review 777-817, 804-815 (Spring, 2013) (226 Footnotes)



BrianGilmoreThe reconfigured goal, in our opinion, should not be to rid society of illegal substances or controlled substances. This is one of the big mistakes of the war on drugs and controlled substance policy in the United States since 1914, when prohibition was first implemented. Our goal is to address the issue of the war on drugs and how it impacts the lives of African-American men with legal and/or sociopolitical advocacy and direct assistance on a variety of levels. It is our contention that African-American men, entangled in the criminal justice system under the auspices of the war on drugs, have been rendered colonial citizens in their own country. This assertion is made by the evidence presented in the number of black men who are incarcerated and who continue to be incarcerated under the current criminal justice policy in the United States.

*805 While the efforts to address substance abuse in the United States might actually have a good foundation, the results state otherwise. As the poet Aimé Césaire might have noted: what has happened to a segment of the African-American population is neither "evangelization," a "philanthropic enterprise," a "desire to push back the frontiers of ignorance, disease, and tyranny," "a project undertaken for the greater glory of God," nor is it "an attempt to extend the rule of law." The system, despite its professed intent, is a very destructive program of criminal justice and social digression for a significant subset of the population, which has both direct and indirect links to racial oppression.

A. Alexander's New Jim Crow

If one accepts Michelle Alexander's notion that the war on drugs is the "New Jim Crow," as she posits in her book of the same name, then one reasonable solution is another anti-Jim Crow-like approach, as the country witnessed in the 1960s. This would be an effort to destroy the system. Racial segregation (America's racial apartheid system--the first Jim Crow) was dismantled with direct legal action, political agitation and lobbying, community organizing, civil disobedience, and fervent and constant protest. The system (Jim Crow) also required entry components after the legal system was dismantled. This provided an opportunity for those once denied access to the system. Affirmative action is an example of an effort by the government that provided blacks with entry into the system, which was long denied to them by their own country through public and private repression. Thus, just as black Americans required the dismantling of the Jim Crow system, they also required a path to true citizenship through entry programming.

Unfortunately, a Jim Crow solution is not likely forthcoming with respect to the many African-American men and women incarcerated by the war on drugs. First, it is not likely that African Americans on a mass scale will collectively and passionately embrace this cause as the cause of the moment as they did the quest of civic equality in the twentieth century. While there is disappointment and growing opposition to the war on drugs and what it is doing to African Americans, it does not *806 produce the same anger and desire to protest as the struggle against racial discrimination and segregation did in the twentieth century. As stated above in reference to the Rockefeller drug laws, many blacks were in support of Rockefeller's call for a new approach to drug enforcement.

There will be no marches, protests, or righteous indignation because millions of African-American men are incarcerated on drug charges. Perhaps millions more are on the way to prison if the war on drugs is not changed, but the idea that a groundswell of civil disobedience, advocacy, and political organizing is looming is not likely. In addition, even with protests and struggle, the government would have to acknowledge the mistake of its war on drugs policy and take ownership of the problems it has created. This, in our opinion, is also unlikely to occur. There is no evidence that the United States has the will to decriminalize narcotics (marijuana, heroin, and cocaine for starters), release millions of individuals from prison quickly or immediately, or devote billions of taxpayer revenue to implementing re-entry programs for those who have gone to prison in the war on drugs. In our opinion, only outright documented evidence of an intentional racial motive in the execution of the war on drugs would bring about bold action on the part of the United States collectively to assist African Americans in this manner. Such evidence, if it exists or is revealed, could also have some impact on the status of many non-African Americans incarcerated in the system.

B. Human Rights Watch

Reginald Dwayne BettsEven though it is unlikely that a Jim Crow-like movement will germinate, terminating the war on drugs through public pressure, protest, and organizing, it is notable that a program to end the war on drugs in the United States has already been proposed. It is also quite credible in content.

Human Rights Watch, an international non-governmental organization financed by George Soros for purposes of global research, provides a potential shift in policy that could form the foundation for a new post-war on drugs policy. Their report, Targeting Blacks: Drug Law Enforcement and Race in the United States, released in 2008, is a comprehensive approach to the problem detailed in this Article, namely the fate of African-American men in the criminal justice system. If a *807 program were to be implemented, the proposals of Human Rights Watch are ideal for our goals.

According to the report, African-American men in 2006 were 53.5% of those incarcerated for drug crimes. They were 11.8 times more likely to enter prison for drug offenses than white men, and of all African-American men in prison, nearly forty percent were in prison for drug crimes. These statistics are especially troubling considering that whites comprise six times the drug offenders as blacks, yet black men are the individuals who are finding themselves incarcerated.

The recommendations of Human Rights Watch are designed to address the destructive results of the drug wars and to stop the destructive cycle for blacks as a result of so many men being removed from their communities and being underdeveloped. Prison time, in other words, is for the most part a time of underdevelopment. Human Rights Watch recommends the adoption of "community based sanctions and other alternatives to incarceration for low-level drug offenders," as well as "more resources [for] substance abuse treatment" and ""outreach" related to prevention of drug addiction. Most importantly, Human Rights Watch calls for the "elimination of] mandatory minimum sentences for all drug offenses," a proposal that forms the core of any logical program of reform. The report also recommends "investments in community, educational, health, and social programs" and the adoption of ""public health based strategies" to address drug abuse. The report by Human Rights Watch also seeks to address racial discrimination in conjunction with the war on drugs. A comprehensive analysis of racial disparities in drug enforcement from arrest through incarceration is recommended first. Second, all stakeholders involved should work together to ensure that the policies implemented do not burden communities traditionally affected by the policies in a racially disproportionate manner.

These recommendations are important because they seek to uncover any racial intent in policy making. In addition, these policies recognize the potential long-term damage that current drug enforcement policy is *808 causing and can cause. The report also recommends the enactment of policies that do not result in racial bias or racial discrimination. This recommendation is based upon the United Nations' human rights law, specifically, the International Convention on the Elimination of All Forms of Racial Discrimination. This recommendation would prohibit laws that would restrict human rights and fundamental freedoms. Considering the "colonial" status of many black men as a result of convictions under current drug enforcement policy, this proposal would counteract policies that repress basic rights and privileges in the United States.

To supplement these race-based proposals, Human Rights Watch also recommends the elimination of any policies that, in fact, promote racial discrimination against blacks. In theory, if accepted this final recommendation would likely eliminate many of the drug enforcement laws throughout the country considering the statistical disparities that exist now in the system towards black men.

C. Re-entry

With incarceration and the eventual release from incarceration arises the need for re-entry into society. Re-entry is more of an issue now because of the huge increase in the prison population over the past forty years. Any scenario that results in the end of current drug enforcement policy and/or the release of many of the incarcerated from prison would require significant efforts at re-entry. Eumi K Lee, Associate Clinical Professor of Law, explains the importance of re-entry in general in the following manner:

Given this incredibly high recidivism rate, successful prisoner reentry is of the utmost importance in unraveling this crisis.

Indeed, the failure to integrate back into society is part of the self-reinforcing cycle that underlies the crisis. Prisoners enter the correctional institution, often with existing mental health or substance abuse issues, which are left untreated.

The challenges faced by, black men leaving incarceration and entering communities are numerous. They include the general stigma of *809 being incarcerated and racial attitudes, difficulties earning income or obtaining gainful employment, little if any access to financial credit, deteriorated social bonds and connections, and limited access to housing, health care, and education. The fact that many black men are challenged in all of these areas upon their release from incarceration is precisely how they become non-citizens. Some have their parental rights challenged, while their voting rights, right to sit on juries, ability to receive loans for education, and certain types of employment are denied. Military service, driver's licenses, passports, and many other basic indicators of real citizenship are also negatively affected. To release the formerly incarcerated into the community without a personalized plan for transition, as well as an overall effort to prevent disenfranchisement, is part of the destruction of current drug enforcement policy as well as the path to recidivism. If anything, the end of current drug enforcement policy should entail an end to many of these barriers. While states differ on how they treat these various issues, this does not mean that coordinated efforts to address these post-release barriers are impossible.

D. No Entry

Considering that overall we have doubts that there will be a concentrated effort to alter drug enforcement policy, there is no other alternative but for African Americans, if they are committed to addressing this policy issue, to try to alter the effects of it on their own. In sum, it is largely the task of African Americans to reduce the number of African-American men entering the criminal justice system.

As stated previously, the federal government is not likely to decriminalize marijuana, heroin, or cocaine. It is also unlikely that the federal and state governments will begin to release those who are imprisoned on drug charges in mass quantities. It is also questionable whether there will be a concerted effort to provide for re-entry into the community and restore individuals convicted of drug crimes to full citizenship status. Considering all of these problems, African Americans have no choice but to address the problems presented by controlled substances and the policy towards controlled substances themselves. This includes both re-entry efforts and efforts to prevent incarceration in *810 the first place. If this task appears difficult, this is true. However, it is not impossible. Self-help organizing amongst African Americans is part of their history.

1. Self-Help Tradition

The problems presented by drug use, abuse, addiction, and the enforcement of laws prohibiting possession can be addressed through self-help efforts. In other words, it was not always the case that the challenges of social, political, and economic policy and status in the United States were addressed by government efforts. African Americans, as a result of their status as second-class citizens in the United States, were forced to address many issues on their own.

In William Pollard's doctoral study, Study of Black Self Help, a brief history of this tradition is revealed and examined. According to Pollard, in the period from the 1890s to the early twentieth century, the fate of many African Americans would have been tragic but for the persistence of the many black men and women who chose to assist other blacks ("uplifting the race," Pollard calls it) as opposed to pursuing personal gratification. Pollard states that the work of blacks engaged in self-help activities included work with "delinquents." Some of the self-help efforts at the time centered on race pride, but much of the work involved the young, the aged, and those too ill to care for themselves. There were various institutions involved in self-help efforts in black communities, including churches, social welfare organizations, clubs, fraternal organizations, secret societies, and educational institutions. There were, according to Pollard, specific efforts to address the lack of reformatories for black youth, demonstrating again some degree of focus upon those African Americans who had strayed into illegal activities.

2. Organizations

Historically, African Americans have formed organizations to assist with problems associated with African Americans in times of great strife. These organizations have had dedicated missions and have been quite successful. In the early twentieth century, major organizations were *811 formed due to the fact that African Americans were denied civic equality and citizenship rights in the United States. The current problem where many African-American men have been (or will be in the future) rendered colonial citizens in their own country due to drug enforcement policy presents a similar but more complex problem.

However, in the last century, the National Association for the Advancement of Colored People ("NAACP") was formed in 1909 during the Progressive Era to seek racial equality in the United States for the nation's blacks. While the NAACP wasn't a pure black self-help organization (whites initially ran the organization), its formation can be traced to a black self-help organization known as the Afro-American League.

T. Thomas Fortune, a New York-based newspaper editor and publisher, is largely responsible for the creation of the National Afro-American League. In 1887, using the editorial pages of his newspaper, The Freeman, Fortune called upon African Americans to "form an organization to fight for the rights denied them." The organization's goal was to address racial equality and racial oppression, issues that were quite prevalent at the time. While the organization was unsuccessful, it led to the formation of a successor organization--the National Afro-American Council, an entity dedicated to the same goals. While these organizations evolved into multiracial organizations, African Americans created these organizations.

The National Afro-American Council was more successful than its predecessor. It benefited first of all by the involvement of Booker T. Washington, who attended meetings of the council. Washington, the so-called leader of black Americans in his day, was always closely associated with self-help causes in Black America historically. He was often described as a "conservative" and a "compromiser," but, despite his outwardly expressed views, he also worked behind the scenes to oppose racial inequality and segregation.

*812 In contrast, T. Thomas Fortune, the official leader of the council, was far more militant and impatient with racial progress. Fortune, who became a close confidant of Washington, did not necessarily agree with Washington's views but did agree with Washington as to the final goal that needed to be achieved: racial equality for blacks in the United States.

There are also less known self-help efforts by African Americans historically worth noting that are likely more applicable. One such effort occurred because of late nineteenth century and early twentieth century efforts by blacks in the city of Buffalo, New York, who sought to address education for their children when the city of Buffalo refused to take the necessary steps. The black community of Buffalo had already taken steps earlier in the century regarding reading and writing with their children when racial segregation denied their children educational opportunities. By 1837, the blacks in Buffalo formed the Young Ladies Literary Society and the Debating Society to address their concerns regarding reading and writing with their children. The blacks in Buffalo also formed other organizations to address the lack of black history educational outlets in the city and to educate the public on "heated political issues." The educational efforts in Buffalo organized within the black community were started due to racial prejudice and demand for the services. These services also included vocational training, self improvement, and efforts to assist black students locate jobs. Overall, the blacks in Buffalo were attempting to uplift the community on their own, "politically, socially, and economically."

There were other cities where problems in the black community were addressed within the community by blacks. Chicago, during the Progressive Era of the early twentieth century, also found blacks attempting to deal with serious problems on their own by forming self-help organizations. Black charity organizations began to appear more *813 and more during the Progressive Era. The influx of blacks to urban areas, the growth of a black middle class, and lack of access to other services forced blacks to form their own service organizations in Chicago to address issues of concern to blacks at the time. One example of an organization formed during the Progressive Era by blacks to address a specific problem among blacks in Chicago was the Chicago Home for the Aged and Infirm Colored People in 1898. It was the first of the charitable organizations formed by blacks at this time.

In Chicago, blacks also formed the Louise Juvenile Home for the Dependent and Neglected Children in 1907 and the National League for the Protection of Colored Women in 1906 to assist young women arriving to the city seeking employment and a new start. This latter organization was created with the specific purpose of stopping the exploitation of young women. This was yet another example of African Americans deciding to address problems within their community on their own.

E. The Power of Governors and States

When his second term as President was reaching an end, President Bill Clinton pardoned a twenty-nine year old African-American woman named Kemba Smith. Smith was entering her seventh year in prison, set to serve twenty-four years as a result of a conviction on a conspiracy charge to distribute crack cocaine. Smith was in college when she pled guilty and had no criminal record. Smith was, to a certain degree, the perfect prisoner in the nation's flawed drug enforcement policy. Her crimes were non-violent and indirect; yet, as a result of her desire to take responsibility for her mistakes, she was sentenced to twenty-four years in prison.

President Clinton's decision to pardon Smith was both appropriate and symbolic. But, more importantly, his decision is representative of another tool at the disposal of society to weaken current drug enforcement policy: executive clemency and pardon power. This power is mostly available to governors of the various states in the current drug enforcement environment. While there is no large usage of the tactic, *814 some instances are notable. This power is especially noteworthy considering the fact that states continue to face budget problems stemming from over-incarceration and related state correctional services. Numerous states have taken steps to reduce their correctional budgets, and seeking to reduce prison populations is one tactic. Pardons and clemency are not a major part of such an effort, but they do send a symbolic message regarding outdated and failed drug enforcement policy from those who understand it first-hand.

For example, in his first twelve years in office, Governor George Pataki of New York pardoned numerous individuals. Nearly all of the individuals pardoned had been convicted under the state's drug enforcement Jaws passed by Rockefeller. In December 2002, Governor Pataki granted clemency to four individuals incarcerated under the state's Rockefeller drug laws. By 2005 Pataki had granted clemency to thirty-one individuals; twenty-seven of those individuals had been incarcerated as a result of the Rockefeller drug laws.

Just recently, Governor Jerry Brown of California pardoned seventy-nine individuals in one day, many for minor drug crimes. This decision by Governor Brown is the kind of concerted effort that is needed from more governors. In order to begin to address the problems stemming from drug-related laws, governors should pardon or offer clemency to more individuals, especially if they are in prison for non-violent drug possession offenses.

While the actions of governors on this issue might be a small contribution to the effort to change drug enforcement policy, governors across the country have the potential to impact and express a symbolic message by using their pardon and clemency power much more in *815 situations where individuals have received long sentences for non-violent drug offenses.

Brian G. Gilmore is Clinical Associate Professor of Law at Michigan State University College of Law and poet.

Reginald Dwayne Betts is author of the collection of poems Shahid Reads His Own Palm and the memoir A Question of Freedom. In 2012, President Obama appointed Mr. Betts to the Coordinating Council of the Office of Juvenile Justice and Delinquency Prevention. He is a first year law student at the Yale School of Law.*

The Scandal of Racist Marijuana Arrests—and What To Do About It

 

(Reuters/John Gress/Files)

(Reuters/John Gress/Files)

“Whites Smoke Pot, but Blacks Are Arrested.” That was the headline of a column by Jim Dwyer, the great Metro desk reporter for The New York Times, in December 2009. Although Dwyer was writing about New York City, he summed up perfectly two central and enduring facts about marijuana use and arrests across the country: whites and blacks use marijuana equally, but the police do not arrest them equally. A third important fact: the vast majority (76 percent) of those arrested and charged with the crime of marijuana possession are young people in their teens and 20s.

 

Sources for the information in this article can be found atthenation.com/marijuana and at the site of the Marijuana Arrest Research Project, which is run by author Harry Levine and civil liberties attorney Loren Siegel.

Over the last fifteen years, police departments in the United States made 10 million arrests for marijuana possession—an average of almost 700,000 arrests a year. Police arrest blacks for marijuana possession at higher rates than whites in every state and nearly every city and county—as FBI Uniform Crime Reports and state databases indisputably show. States with the largest racial disparities arrest blacks at six times the rate of whites. This list includes Alabama, Illinois, Iowa, Kansas, Kentucky, Minnesota, Pennsylvania, Nebraska, Nevada, New York and Wisconsin. 

Big city police departments are among the worst offenders. Police in Los Angeles, Chicago and New York have arrested blacks for marijuana possession at more than seven times the rate of whites. Since 1997, New York City alone has arrested and jailed more than 600,000 people for possessing marijuana; about 87 percent of the arrests are of blacks and Latinos. For years, police in New York and Chicago have arrested more young blacks and Latinos for simple marijuana possession than for any other criminal offense whatsoever. 

Other large urban areas that make huge numbers of racially biased arrests include Atlanta, Baltimore, Buffalo, Cleveland, Dallas–Fort Worth, Detroit, Fort Lauderdale, Houston, Las Vegas, Memphis, Miami, Nashville, Philadelphia, St. Louis, Tampa and Washington, DC. And across the United States, one-third of marijuana arrestees are teenagers; 62 percent are age 24 or younger; and most of them are ordinary high school or college students and young workers. 

The essential study of these possession arrests and their pervasive racial bias is The War on Marijuana in Black and White, an extraordinary book-length report released by the ACLU earlier this year. It found that police arrest blacks for marijuana possession at higher rates than whites in poor, middle-class and wealthy communities (with richer counties showing the greatest bias). The glaring racial disparities in marijuana arrests are “as staggering in the Midwest as in the Northeast, in large counties as in small, on city streets as on country roads…. They exist regardless of whether blacks make up 50% or 5% of a county’s overall population.”

Young whites (age 18 to 25), however, use marijuana more than young blacks, and government studies comparing marijuana use among whites and blacks of all ages have found that both groups use it at a similar rate.

* * *

Why are marijuana arrests so racially skewed? Such dramatic and widespread racial disparities are clearly not the product of personal prejudice or racism on the part of individual police officers. This is not a problem of training or supervision or rogue squads or bad apples. It’s a systemic problem, a form of institutional racism created and administered by people at the highest levels of law enforcement and government.

Most people arrested for marijuana possession were not smoking it: they typically had a small amount hidden in their clothing, vehicle or personal effects. The police found the marijuana by stopping and searching them (often illegally), or by tricking them into revealing it.

Police departments concentrate their patrols only in certain neighborhoods, usually ones designated as “high crime.” These are mainly places where low-income whites and people of color live. In these neighborhoods, police stop and search the most vehicles and individuals while looking for “contraband” of any type to make an arrest. The most common item that people in any neighborhood possess that will get them arrested—and the most common item that police find—is a small amount of marijuana.

Police officers patrolling in middle- and upper-middle-class neighborhoods typically do not search the vehicles and pockets of white people, so most well-off whites enjoy a de facto legalization of marijuana possession. Free from the intense surveillance and frequent searches that occur in other neighborhoods, they have little reason to fear a humiliating arrest and incarceration. This produces patterns, as in Chicago, where whites constitute 45 percent of the population but only 5 percent of those arrested for possession. 

The result has been called “racism without racists.” No individual officers need harbor racial animosity for the criminal justice system to produce jails and courts filled with black and brown faces. But the absence of hostile intent does not absolve policy-makers and law enforcement officials from responsibility or blame. As federal judge Shira Scheindlin recently determined in two prominent stop-and-frisk cases, New York City’s top officials “adopted an attitude of willful blindness toward statistical evidence of racial disparities in stops and stop outcomes.” She cited the legal doctrine of “deliberate indifference” to describe police and city officials who “willfully ignored overwhelming proof that the policy…is racially discriminatory and therefore violates the United States Constitution.” 

Racially biased marijuana enforcement stretches far beyond New York City—and its pernicious effects extend far beyond the degrading experience of being arrested and jailed. Most serious are the lifelong criminal records produced by a single arrest. Twenty years ago, misdemeanor arrest records were papers stored in dusty file cabinets. Now they are computerized and instantly available for $20 or less from commercial database firms—and easily found by a Google search for the phrase “criminal records.” (Try it yourself.) Employers, landlords, schools, banks and credit card companies rule out applicants on the basis of these now universally available records, which have been aptly described as a “scarlet letter” and a “new Jim Crow.” The substantial damage caused by criminal records from the millions of marijuana arrests has also been willfully disregarded by top officials almost everywhere, including in Congress and the White House.

Prison for You. Profit for Me. Systemic Racism Effectively Bars Blacks from Participation in Newly-legal Marijuana Industry

 Abstract

Elizabeth Danquah-Brobby, Prison for You. Profit for Me. Systemic Racism Effectively Bars Blacks from Participation in Newly-legal Marijuana Industry , 46 University of Baltimore Law Review 523 - 545 (Summer, 2017 ) (Student Comment) (166 Footnotes Omitted) (Full Article)


“Although the butterfly and caterpillar are completely different, they are one and the same.”


ElizabethDanquahBrobbyHistorically, blacks have been prosecuted and convicted across the United States at significantly higher rates when compared to whites for marijuana-related crimes, despite the fact that studies indicate marijuana use by whites and blacks is relatively equal. Further, individuals with lower economic means were dually susceptible to conviction as a result of less vigorous legal representation.

Now, laws have legalized marijuana for medicinal purposes in twenty-six states, along with a small portion of states (seven) legalizing marijuana for recreational use. Yet retroactive ameliorative relief is not widely available to those who were convicted under circumstances that are now legal, and as a result, stains remain on the records of a disproportionate number of blacks. Marijuana has become a big business, often being compared to the Gold Rush and referred to as the Green Rush. However, regulations across states that are a part of this Green Rush effectively wall out *524 those once convicted (overwhelmingly blacks) for participating in, and profiting from, the very same industry.

This Comment will discuss the history of racial disparity in enforcement of marijuana laws across the United States; the effect of state-sanctioned legalization of marijuana use, possession, and sale in limited states; the stance of the United States in general as it applies to policy on retroactive relief when laws change; the different avenues states have taken thus far to address how changes in the law should affect those already convicted; evidence of the big business opportunities emerging in legal marijuana markets; and the barriers to entry that exist--particularly for blacks--who have been disparately negatively impacted by the war on drugs.”

* * *

The American dream, as described by James Truslow Adams, “that life should be made richer and fuller for everyone and opportunity *545 remain open to all” has proven to be truly a dream in the realm of legal-marijuana opportunities. Arguably the United States' fastest growing and most lucrative new industry--marijuana-related business opportunities--are not available to most. This is especially true for blacks who are currently and historically were disproportionately targeted for marijuana-related offenses, despite equal use across racial lines. Whether it be a prior or current felony conviction, the fear of being targeted for arrest in an industry that remains federally illegal, a steep financial hurdle, or a farming requirement that can only be met by a select few, there are plenty of roadblocks to getting a piece of the Green Rush. In sum, “[h]ere are white men poised to run big marijuana businesses, dreaming of cashing in big-- big money, big businesses selling weed--after 40 years of impoverished black kids getting prison time for selling weed, and their families and futures destroyed.” Without rapid and deliberate intervention by lawmakers and voters, this playing field will continue to be set unfairly, thus continuing to perpetuate systemic racism in the United States.

J.D. Candidate, University of Baltimore School of Law, 2017.

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