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Excerpted From: Jelani Jefferson Exum, Reconstruction Sentencing: Reimagining Drug Sentencing in the Aftermath of the War on Drugs, 58 American Criminal Law Review 1685 (Fall, 2021) (176 Footnotes) (Full Document)
The year is 2020, and the world has been consumed by a viral pandemic, social unrest, increased political activism, and a history-changing presidential election. In this moment, anti-racism rhetoric has been adopted by many, with individuals and institutions pledging themselves to the work of dismantling systemic racism. If we are going to be true to that mission, then addressing the carnage of the failed War on Drugs has to be among the top priorities. The forty years of treating drug law offenders as enemies of society have left us with decimated communities and have perpetuated a biased view of individuals in those communities. Of course, the bulk of the devastation waged by the War has been borne by Black and brown families. To begin the work of repairing the damage caused by overly punitive and racially disproportionate drug law enforcement, we must make commitments to actually end the War. Moreover, we must commit to reinterpret our Constitution to protect those who suffered most from Wartime policies and those who are most vulnerable to post-War retaliation. Dr. Henry Louis Gates, Jr. has written that “few American historical periods are more relevant to understanding our contemporary racial politics than Reconstruction.” This Article argues that Reconstruction's modern relevance goes beyond politics and is especially applicable to the criminal sentencing context where law and policy have been used to perpetuate racialized oppression. With that in mind, this Article uses the promise and pitfalls of the Reconstruction Era as a model for reimagining drug sentencing in the aftermath of the War on Drugs.
The War on Drugs officially began in 1971 when President Nixon targeted drug abuse as “public enemy number one.” The goal of the war rhetoric was clear: identify drug abuse and the drug offender as dangerous foes to the law-abiding public and mandate military-like tactics to contain and defeat them. Criminal sentencing would come to be the weapon of choice used in this urgent combat. As a part of the war efforts, the Anti-Drug Abuse Act of 1986 was passed under President Reagan, establishing a weight-based, highly-punitive, mandatory-minimum sentencing approach to drug offenses that has persisted in some form for the last four decades. When the Act was passed, crack cocaine was publicized as the greatest drug threat, and crack cocaine offenders--the vast majority of whom were Black--were subjected to the heaviest mandatory minimum penalties. Like any war, the consequences of the War on Drugs has had widespread casualties, including (but not limited to) the destruction of many communities, families, and individuals; the increase in racial disparities in punishment; and a fiscal disaster in penal systems across the country. What the War on Drugs has failed to do is eradicate drug abuse in the United States. It is time to move on from this failed War. This Article imagines an America in which the War on Drugs has officially ended and introduces the idea of a “Reconstruction Sentencing” model in which we heal from the devastating effects of the drug war through intentional reinterpretation of key constitutional provisions. During the aftermath of the War, reconstruction sentencing necessitates an understanding that drug crime is undeterred by incarceration. Reconstructing our approach to drug sentencing requires identifying the goals of drug sentencing and developing multifaceted approaches to address and eradicate the underlying sources of the drug problem. When this is done, we may find that more appropriate purposes of punishment--rehabilitation and retribution--compel us to think beyond incarceration and move us away from viewing mandatory minimum sentences as ever appropriate.
This Article proceeds in four parts.
Part I explores the need for Reconstruction following the Civil War and compares that period to the usefulness of a Reconstruction model for a post-Drug War period.
The causes and casualties of the War on Drugs are explained in Part II, with a focus on how the War has disproportionately targeted Black communities.
Part III then discusses how a reinvigoration of constitutional protections, namely those found in the Thirteenth Amendment, can and should be used to end the War on Drugs and rectify the damage that the War has caused over the past four decades.
In Part IV the Article introduces ways in which this Reconstruction approach can lean on other constitutional amendments to reach similar restorative ends.
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A Reconstruction Sentencing model can emerge when constitutional challenges to War on Drugs laws and policies are given credibility. When racially destructive sentencing laws, like mandatory minimum drug sentencing, are struck down as unconstitutional, then other racist criminal justice policies can be uprooted as well. To be sure, the damaging laws and policies of the War on Drugs go beyond criminal sentencing. From policing, to pretrial detention, to charging decisions, the War on Drugs has facilitated massive destruction. It has also perpetuated the subjugation of hundreds of thousands of Black people. Therefore, a Reconstruction Sentencing model cannot solely about sentencing.
Proponents of the Thirteenth Amendment understood that by outlawing slavery, the Amendment went beyond simply formally ending forced labor. It was also meant to give force to legislation targeted at dismantling the caste system set up by slavery. Further, it was understood that the Thirteenth Amendment prohibited any laws that sustained that racial caste system.
Reconstruction Sentencing comes with the same understandings. The purpose of reconstructing drug sentencing laws is to take away the weapon that police and prosecutors can use to decimate communities so efficiently. Changes to laws regarding race-based policing remove the tactics that have been used to carry out that destruction. But a true Reconstruction Sentencing model both uproots oppressive systems and restores rights. Such an approach requires a restorative focus on reinvestment in damaged communities. This was the heart of Reconstruction--the understanding that the “mere exemption from servitude is a miserable idea of freedom.” Like the calls throughout the country for anti-racist action to address systemic racism envision, Reconstruction Sentencing is a step toward long overdue realization of true freedom.
Jelani Jefferson Exum is the Philip J. McElroy Professor of Law at the University of Detroit Mercy School of Law.
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