Abstract 

Excerpted From: Dany Berbari, Drug Decriminalization and Gun Criminalization: Assessing the Compatibility of These Asymmetrical Beliefs from a Racial Justice Lens, 38 Journal of Law & Politics 135 (Spring, 2023) (120 Footnotes) (Full Document)

Thomas Frampton, my first-year Criminal Law Professor, began a class on drugs and guns by stating, "I want you all to vote on these two questions: (1) Do you support stricter drug laws? (2) Do you support stricter gun laws?" Unsurprisingly, very few individuals in the class supported stricter drug laws, while an overwhelming majority backed stricter gun laws. Professor Frampton then surveyed the class, finding that many opposed strict drug laws because of their impact on Black Americans. Many of my classmates stated that enforcement of drug laws has had a disparate impact on Black Americans with regards to discriminatory stops, searches, and arrests, ultimately leading to mass incarceration. Professor Frampton then asked, "but doesn't this rationale also extend to stricter gun laws? Specifically, wouldn't stricter gun laws and their discriminatory enforcement also harm Black Americans?"

The question presented above is not just academic--it has real-world relevance. In our country today, there are movements from both political parties that reflect asymmetrical positions regarding the criminalization or the decriminalization of guns and drugs. On one hand, Democrats overwhelmingly support drug decriminalization, yet strongly support stricter gun control laws. On the other hand, Republicans "are [warier] than Democrats" about drug liberalization, advocating for stricter drugs laws, but generally disfavor gun control measures. In fact, the conservative movement to loosen gun control has been buoyed by the Supreme Court's decision in New York State Rifle & Pistol Association v. Bruen, which will likely greatly expand gun rights.

Most relevant, however, is how Black Americans hold asymmetrical views regarding guns and drugs, with most opposing stricter drug laws (around 74% of Black Americans believe that persons with marijuana convictions should be released from custody and have their records expunged), but supporting stricter gun laws (with 75% of Black adults supporting stricter gun measures). This may presumably be because they believe that the interests of Black Americans are best served by criminalizing guns and decriminalizing drugs.

Are the asymmetries revealed above logically consistent? Or, as Professor Frampton suggested, is the position of supporting the decriminalization of drugs incompatible, or at least in tension, with that of supporting the criminalization of guns because of their effects on Black Americans? This Note explores the following question: If drug liberalization would be good for Black people, would gun decriminalization and legalization be good, too? This discussion may implicitly answer the question of whether one can reasonably hold the asymmetrical beliefs outlined above based on their respective impacts on Black Americans. Overall, this Note assesses the compatibility of these positions through a racial justice lens.

In this Note, I will argue that the historical reasons behind gun criminalization and its consequences for Black individuals parallel the reasons behind drug criminalization. I will further argue that some benefits of gun decriminalization mirror those of drug decriminalization. Namely, less strict gun laws can alleviate the disparate impact on Black individuals resulting from discriminatory stops, searches, and arrests. Moreover, gun decriminalization also carries benefits to Black individuals that do not mirror benefits realized through drug decriminalization, such as allowing them the opportunity to defend themselves in high-crime areas and lessening the impact of the "felon in possession of firearm" laws that have disparately harmed Black people. But there are additional considerations that undermine whether gun decriminalization actually benefits Black individuals. These include the facts that strict gun laws are supported by a majority of Black people, create the potential for safer police interactions, and generally foster a safer community by reducing gun homicide and assault, which disproportionately harms Black people. Therefore, while gun liberalization would impact Black Americans positively in some ways, there are undoubtedly other serious considerations that bring pause to those that tout the correlation between drug and gun decriminalization. Thus, this Note suggests that support for drug decriminalization and gun criminalization may, in fact, be compatible from a racial justice perspective.

Part II will outline the Note's framework, including its definitions and assumptions. Part III will discuss the history and negative effects of strict drug laws and the reasons why drug decriminalization would benefit Black individuals. Part IV will explore the history and negative effects of strict gun laws and explain that certain benefits of gun decriminalization mirror those of drug decriminalization. Part IV argues that gun decriminalization carries additional benefits for Black Americans not inherent in drug liberalization. Lastly, Part V outlines how strict gun laws benefit Black people, bringing at least some doubt as to whether less gun control would be truly beneficial for Black Americans.

[. . .]

The Supreme Court's decision in Bruen will undeniably lead to the liberalization of gun laws. In light of the Court's recent decision, some have suggested that looser gun control measures will benefit Black individuals, much like how permissive drug laws have benefitted Black individuals by reducing the frequency of police encounters. This Note has attempted to answer the question of whether it logically follows that because drug decriminalization is good for Black Americans, so too would be gun decriminalization. In other words, from a racial justice lens, can one reasonably advocate for the decriminalization of drugs due to its effect on Black individuals, but at the same time, call for stricter gun laws?

As Part IV illustrated, not only would less gun control alleviate the discriminatory effects of stop-and-frisk practices and full searches (which are present in the enforcement of drugs laws), but it would also (1) undermine current felon in possession statutes, which disproportionally harm Black people and (2) ensure that Black individuals are able to defend themselves. Part V, however, casted great doubt on this logical comparison, as gun control measures are (1) supported by Black people and (2) would lead to safer communities and safer interactions with police. Therefore, the case for gun decriminalization is seemingly less straightforward than the case for drug decriminalization. Thus, from a racial justice lens, support for the decriminalization of drugs and the criminalization of guns may, in fact, be compatible.

In trying to reconcile these competing impulses with regards to drugs and guns, it may be helpful to study which gun laws have the greatest discriminatory impact. Specifically, would there be ways to eliminate specific gun laws that have a significantly negative impact on Black individuals, while keeping certain strict gun laws that have not been shown to disparately impact Black individuals?

While this Note focuses solely on gun and drug decriminalization as isolated topics, interesting questions may be raised as to how the two may interact with one another. For example, if only drugs were decriminalized, but guns were not, would the state and its actors merely shift discriminatory practices aimed at marginalizing and criminalizing Black people to gun laws? As rational actors, if society took away the right to enforce one law, police may merely shift enforcement practices on to another law. In other words, to truly see the benefits of decriminalizing drugs, would we also need to decriminalize guns? This certainly begs the question that was set aside in this Note of whether society needs larger, institutional changes to truly see impactful improvement of unjust or biased conduct.

One other topic not discussed in this Note is the fact that there are other serious considerations, outside of race, that could support asymmetrical positions with regards to drugs and guns. Unlike drugs, the purpose of a gun is to injure and kill. While the collateral consequences of drug use on a person, their family, and their community are great, the inherent purpose of its use is not to inflict pain and violence on others. The senseless death that has occurred from the countless mass shootings every year, the worry children may have going to school or events, and the fear that their parents carry each day, alone, may justify these seemingly incompatible positions.