Thursday, February 02, 2023

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A. The Wars on Crime and Drugs

This Part retraces the origins and ramifications of the War on Crime and the War on Drugs. It begins by recounting the ways in which politics and media drove public support for the Wars' most punitive policies. Next, it discusses the impact of these wars on racial minorities in the justice system.

1. Politics, Media, Public Opinion, and Lawmaking

a. The War on Crime

The law and order rhetoric that has dominated political discourse in the United States for the last half century first emerged in the late 1950s. Southern politicians, angered by the U.S. Supreme Court's decision in Brown v. Board of Education, called for a crackdown on the hoodlums and agitators who challenged segregation and African-American disenfranchisement. Crime officially took its place on the national political scene a decade later with presidential candidate Barry Goldwater's thinly veiled crime in the streets condemnation. History shows us . . . that . . . nothing prepares the way for tyranny more than the failure of public officials to keep the streets from bullies and marauders, Goldwater warned during his acceptance speech at the 1964 Republican convention. That message resonated with the public. By 1968, more than four in five U.S. citizens agreed that law and order had broken down, that crime was on the rise, and that Negroes who start riots were the cause. Being tough on crime has been a virtual political necessity ever since.

The news media was an indispensable ally. This has been especially true since the onset of the soft news era of the late 1990s. Between 1990 and 1993, crime leapt from the fifth to the first most covered topic on the national evening news. By the end of the decade, coverage of homicides had increased more than five-fold. If it bleeds, it leads, became the mantra. According to opinion polls, the American people believed the hype. From 1994 to 1998, respondents to national polls consistently identified crime as the most important problem the nation faced. In a 1997 Los Angeles Times poll, 80% of respondents stated that the media's portrayal of violent crime had increased their personal fear of becoming a crime victim.

Deeming them necessary to reassure an anxious public, lawmakers followed each law and order panic wave with a series of executive actions and legislative changes. In 1968, for example, in an attempt to neutralize the attacks of Republican candidates contending that he was soft on crime, President Johnson signed the Omnibus Crime Control and Safe Streets Act of 1968, which increased funding for law enforcement, attempted to overturn Supreme Court precedent protecting criminal defendants, and provided for expanded use of wiretaps and Miranda-less confessions. The Omnibus Bill was the first of many federal tough-on-crime laws that legislatures would enact over the next three decades. These included the Omnibus Bill's eventual successor, the Violent Crime Control and Law Enforcement Act of 1994, which authorized more than thirty billion dollars for crime prevention efforts, law enforcement, and state prison construction.

More draconian were the laws individual states enacted during the War on Crime. One quintessential example is California's three-strikes law, which mandates twenty-five years to life sentences following conviction for any third felony. New Jersey's Megan's Law, which requires sex offender registration and public notification, is another. Today, more than half of all states have habitual felony offender laws akin to California's three-strikes law, and all fifty states have a version of Megan's Law. In addition, nearly every state has adopted truth-in-sentencing laws, mandatory minimum sentencing laws, and zero-tolerance practices; these laws and policies have resulted in harsher penalties and the virtual elimination of rehabilitation programs.

b. The War on Drugs

Launched on the heels of the War on Crime, the War on Drugs was even more ubiquitous. Not heavily regulated during the first half of the century, drugs emerged as a potent political issue in the second half. In 1971, Richard Nixon declared drug abuse Public Enemy No. 1 and created a new agency, the Special Action Office for Drug Abuse Prevention, which received enhanced funding for drug treatment and enforcement. This would be the first and the last time during the War on Drugs that more funding went toward treatment than punishment. By 1985, nearly four-fifths of funds lawmakers allocated to the drug problem went to law enforcement.

Following in Nixon's footsteps, subsequent administrations successfully used the War on Drugs to cast drug use as a moral problem. By framing drug addicts as aggressors rather than victims, the Reagan, Bush, and Clinton Administrations' zero-tolerance policies toward drug use made sense. The best known example, and a centerpiece of Ronald Reagan's presidency, was Nancy Reagan's Just Say No Campaign --a phrase she coined while speaking at an Oakland grade school. Almost overnight, thousands of Just Say No groups emerged, which largely targeted white middle-class children. Under the rubric of Just Say No, it was entirely a matter of individual choice to use or become involved in drug use.

Again, the news media was only too happy to cooperate, and the infiltration of crack cocaine into urban areas in the mid-1980s gave them their storyline. By 1986, major news magazines were running cover stories calling crack the The Plague Among Us. The media focused, in particular, on crack cocaine use by African-Americans and the alleged crack baby epidemic, postulating a biological underclass of children who would require state support for the rest of their lives. The media also linked crack babies to other inner-city crime, such as prostitution and gang violence. [C]rack bab[ies] . . . bec[a]me a convenient symbol for an aggressive war on drug users because of the implication that anyone who is selfish enough to irreparably damage a child for the sake of a quick high deserves

Federal and state lawmakers took swift action in an apparent attempt to placate a concerned public. The 1970s saw the centralization of federal drug agencies, including the creation of the Drug Enforcement Agency, and increased federal prosecution of drug use and trafficking. Federal legislation soon followed suit with the Sentencing Reform Act of 1984, and, later, the Anti-Drug Abuse Act of 1986, which established the infamous 100-to-1 sentencing disparity for crack versus powder cocaine. State laws were equally harsh. Perhaps the most notorious was the 1973 Rockefeller Drug Laws in New York, which increased penalties from two to five years for first-time drug offenders (under the Boggs Act ) and to mandatory fifteen years to life sentences for subsequent offenses.

2. Racial and Penal Segregation

More than one author has suggested that politicians must have known that the Wars on Crime and Drugs would have a disparate impact on African-American communities, and some have argued that lawmakers enacted these policies precisely because they would have such a disparate impact. The impact of these measures is largely undebatable. Between 1970 and 2003, the U.S. prison population increased from 200,000 to 1.4 million. At 780 per 100,000, U.S. incarceration rates are now four to five times higher than Spain, England, and New Zealand and seven to ten times higher than those in most other Western Individual states have seen similar spikes in imprisonment. Since their enactment in 1973, the Rockefeller Drug Laws, for example, have increased New York prison populations by 500%.

These changes have primarily impacted persons of color. While it had long been the case that racial and ethnic minorities were more likely to be arrested, charged, and incarcerated than their white counterparts, these disparities increased considerably during the late 1980s and 1990s. African-Americans constituted about one-third of all state and federal prisoners in the United States in 1960, but by 1995, they made up approximately one-half of the prison population. Between 1980 and 2006, the increase in African-American rates of imprisonment was nearly four times the increase in white rates. Individual states saw similar changes. For example, while African-Americans and Latinos make up just about one-third of New York's population, they constitute 94% of those convicted under the Rockefeller Drug Laws. Until its repeal, the federal 100-to-1 sentencing scheme for crack cocaine had a similar effect. In 1992, for example, 92.6% of those sentenced in the United States under the 100-to-1 regime were African-Americans. These numbers are especially troubling because multiple studies have shown that whites use drugs at higher rates than African-Americans and sell drugs at roughly equivalent rates.

By 1999, studies showed that an African-American man born in the 1960s had a one-in-five chance of spending at least one year in prison. For those who had not completed high school, that number climbed to one in three. In 2002, a full 12% of African-American men in their twenties were incarcerated, while in 2000, only 1% of white men in their twenties were incarcerated. This means that today, 33% of African-American men in their twenties are in jail, on probation, or on parole, and 33% of African-American baby boys born in 2001 will spend time behind bars. Amazingly, much of this has happened during a period of falling crime rates, with African-American crime commission rates falling at a faster rate than any other group.