thesis about war on drugs

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• v.54(1); 2022

How the war on drugs impacts social determinants of health beyond the criminal legal system

Aliza cohen.

a Department of Research and Academic Engagement, Drug Policy Alliance, New York, NY, USA

Sheila P. Vakharia

Julie netherland, kassandra frederique.

b Drug Policy Alliance, New York, NY, USA

Associated Data

Data sharing is not applicable to this article as no new data were created or analysed in this study.

There is a growing recognition in the fields of public health and medicine that social determinants of health (SDOH) play a key role in driving health inequities and disparities among various groups, such that a focus upon individual-level medical interventions will have limited effects without the consideration of the macro-level factors that dictate how effectively individuals can manage their health. While the health impacts of mass incarceration have been explored, less attention has been paid to how the “war on drugs” in the United States exacerbates many of the factors that negatively impact health and wellbeing, disproportionately impacting low-income communities and people of colour who already experience structural challenges including discrimination, disinvestment, and racism. The U.S. war on drugs has subjected millions to criminalisation, incarceration, and lifelong criminal records, disrupting or altogether eliminating their access to adequate resources and supports to live healthy lives. This paper examines the ways that “drug war logic” has become embedded in key SDOH and systems, such as employment, education, housing, public benefits, family regulation (commonly referred to as the child welfare system), the drug treatment system, and the healthcare system. Rather than supporting the health and wellbeing of individuals, families, and communities, the U.S. drug war has exacerbated harm in these systems through practices such as drug testing, mandatory reporting, zero-tolerance policies, and coerced treatment. We argue that, because the drug war has become embedded in these systems, medical practitioners can play a significant role in promoting individual and community health by reducing the impact of criminalisation upon healthcare service provision and by becoming engaged in policy reform efforts.

KEY MESSAGES

• A drug war logic that prioritises and justifies drug prohibition, criminalisation, and punishment has fuelled the expansion of drug surveillance and control mechanisms in numerous facets of everyday life in the United States negatively impacting key social determinants of health, including housing, education, income, and employment.
• The U.S. drug war’s frontline enforcers are no longer police alone but now include physicians, nurses, teachers, neighbours, social workers, employers, landlords, and others.
• Physicians and healthcare providers can play a significant role in promoting individual and community health by reducing the impact of criminalisation upon healthcare service provision and engaging in policy reform.

Introduction

Social determinants of health (SDOH) are “the conditions in the environments where people are born, live, learn, work, play, worship, and age that affect a wide range of health, functioning, and quality-of-life outcomes and risks.” [ 1 ] There is a growing recognition in the fields of public health and medicine that SDOH play a key role in driving health inequities and disparities, such that a focus on individual-level medical interventions will have limited effects without the consideration of the macro-level factors that dictate how effectively individuals can manage their health. For instance, differences in access to nutritious foods, safe neighbourhoods, stable housing, well-paying job opportunities, enriching school environments, insurance, and healthcare can lead to differential health outcomes for individuals, their families, and their communities. And as these mid- and downstream SDOH have gained more attention, we must also focus on more macro SDOH in order to understand “how upstream factors, such as governance and legislation, create structural challenges and impose downstream barriers that impact the ability and opportunity to lead a healthy lifestyle.” [ 2 ]

One underexplored upstream SDOH is the “war on drugs” in the United States and how it exacerbates many of the factors that negatively impact health and wellbeing, disproportionately affecting low-income communities and people of colour who already experience structural challenges including discrimination, disinvestment, and racism [ 3 ]. President Richard Nixon launched the contemporary drug war in the U.S. in 1971 when he signed the Controlled Substances Act and declared drug abuse as “public enemy number one.” [ 4 ] Since the declaration of the U.S. drug war, billions of dollars each year have been spent on drug enforcement and punishment because it was made a local, state, and federal priority [ 5 ]. For the past half century, the war on drugs has subjected millions to criminalisation, incarceration, and lifelong criminal records, disrupting or altogether eliminating access to adequate resources and supports to live healthy lives.

Drug offences remain the leading cause of arrest in the nation; over 1.1 million drug-related arrests were made in 2020, and the majority were for personal possession alone [ 6 ]. Black people – who are 13% of the U.S. population – made up 24% of all drug arrests in 2020, despite the fact that people of all races use and sell drugs at similar rates [ 6–8 ]. While incarceration rates for drug-related offences skyrocketed in the 1980s and 1990s, they have decreased in recent years motivated both by cost savings and criminal legal reform efforts to promote a public health approach to drug use. However, estimates still suggest that roughly 20% of people who are incarcerated are there for a drug charge, and racial disparities in incarceration persist [ 9 , 10 ].

Meanwhile, the illicit drug supply has become increasingly unpredictable and contaminated due to drug supply disruptions, contributing to an exponential increase in drug overdose deaths [ 11 , 12 ]. Estimates suggest that one million people died of a drug-involved overdose between 1999 and 2020, with over 100,000 deaths occurring in a calendar year for the first time in 2021 [ 13 , 14 ]. Since 2015, overdose deaths have disproportionately impacted racial and ethnic minorities; Black people have had the biggest increase in overdose fatality rates, and today, Black and Native people have the highest overdose death rates across the U.S [ 15 ]. The most recent “fourth wave” of the overdose crisis can be attributed to a fentanyl-contaminated drug supply caused by drug prohibition; criminalisation that leads to stigma and fear of punishment that deters people from getting support they might need; and a lack of robust, scaled-up investment in harm reduction and evidence-based treatment services [ 16 , 17 ]. Although harm reduction interventions, including supervised consumption spaces (also called supervised injection facilities, drug consumption rooms, or overdose prevention centres) and heroin-assisted treatment have been widely studied and found effective outside of the U.S., these strategies have not been widely adopted in this country [ 18–21 ].

The drug war has also become deeply embedded within many of the systems and structures of U.S. life well beyond the criminal legal apparatus [ 3 ]. Since the health impacts of incarceration have been studied elsewhere, this paper will specifically discuss the impacts of criminalisation in other facets of life [ 22 ].

We argue that an underlying drug war logic has fuelled the expansion of drug surveillance and control mechanisms in numerous facets of everyday life in the U.S. We define drug war logic as a logic that prioritises and justifies drug prohibition, criminalisation, and punishment to purportedly address the real and perceived health harms of drug use over a public health approach to address these issues. In coining this term, we hope to make more visible the implicit assumptions about drug use that are often unnamed but common in the policies and practices across different institutions. We acknowledge that many actors in these settings where drug war logic is embedded, including physicians and other healthcare providers, are often well-intentioned yet unaware of how they may be perpetuating this logic through their own actions. We argue that drug war logic defies and contradicts widely accepted understandings of addiction as a health issue and has, in many cases, made a public health approach more challenging to implement [ 23 ]. Notably, the American Society of Addiction Medicine defines addiction as “a treatable, chronic medical disease involving complex interactions among brain circuits, genetics, the environment, and an individual’s life experiences.” [ 24 ] As this paper will outline, drug war logic undermines rather than supports the health of people who use drugs, their families, and their communities by treating drug use as a criminal issue.

Drug war logic is made concrete, not just within criminal legal systems, but also through mandated drug reporting and monitoring systems in treatment and healthcare settings, compulsory drug testing in employment and for the receipt of social services, the proliferation of zero-tolerance workplaces and school zones, mandated treatment in order to receive resources or avoid loss of benefits, background checks for work and housing, and numerous other measures which will be discussed in detail below. As a result, the drug war’s frontline enforcers are no longer police alone but now include physicians, nurses, teachers, neighbours, social workers, employers, landlords, and others who are required to engage in these forms of surveillance and punishment.

This commentary will use a SDOH lens to explore a number of systems where the drug war and its logic have taken root, impacting individual and community health and subjecting many people in the U.S. to surveillance due to suspected or confirmed drug use. Healthcare providers must have a robust understanding of the impact of drug war logic in employment, housing, education, public benefits, the family regulation system (commonly referred to as the child welfare system), the drug treatment system, and the healthcare system because these deeply impact the health of their patients, particularly their patients who use drugs (For the purposes of this paper, we are using the term “Family Regulation System,” coined by Emma Williams and used by other scholars, instead of the more commonly used term “Child Welfare System” to reflect the fact that, particularly for low-income families and families of color, state intervention often occurs in order to regulate their families rather than to prioritize the welfare of the entire family unit, of which the child is a part).

Employment, with its link to income and health insurance, is an important determinant of health. However, drug testing, criminal background checks, and exclusions of those with criminal histories from certain professions create significant barriers to obtaining and maintaining employment. Beginning in the 1980s, employment-based drug testing became widespread. In a 1994 report, the National Research Council noted that “[i]n a period of about 20 years, urine testing has moved from identifying a few individuals with major criminal or health problems to generalized programs that touch the lives of millions of citizens.” [ 25 ] Between 2017 and 2020, the National Survey on Drug Use and Health found that approximately 21% of respondents were tested as part of the hiring process, and 15% were subject to random employee drug testing [ 26 ].

Despite the widespread use of testing, less than 5.5% of results are positive for any drug, according to data from Quest Diagnostics, one of the largest testing companies in the country [ 27 ]. There is little evidence that these policies are effective in reducing drug use, improving workplace safety, or increasing productivity [ 28–30 ]. Notably, drug tests cannot specify how much of a drug was consumed, whether the person is currently intoxicated or impaired, or if they have a SUD. Drug tests cannot indicate if drug use will impact a person’s ability to perform their work or if they present a safety risk. Rather, drug tests simply show whether or not someone has a particular metabolite in their system [ 31–35 ].

Beyond workplace drug testing, hundreds of thousands are excluded from stable, well-paid work because of drug-related convictions. Over 70 million people – more than 20% of the U.S. population – have some type of criminal record [ 36 ]. A drug arrest or charge, even without a conviction, can be a barrier to getting a job because it can appear in many web searches and background checks [ 37 ]. Criminal background checks have become cheaper and easier to access, even though these records are notoriously inaccurate [ 38 , 39 ]. In addition, more than a quarter of jobs in the U.S. require some kind of licence, and a drug conviction history can automatically prevent people from getting a professional licence for their trade, like trucking or barbering [ 40 ].

These employment barriers disproportionately affect Black men, who already face additional impediments to employment and who are most harmed by the drug war and criminalisation [ 41 ]. The federal Equal Employment Opportunity Commission issued guidance stating that denying employment based on criminal records could be a form of racial discrimination because people of colour are more likely to be targeted by law enforcement and thus more likely to have an arrest or conviction record [ 42 , 43 ]. As a recent report by the Brennan Centre points out: “the staggering racial disparities in our criminal justice system flow directly into economic inequality” [ 36 ]. This same report found that those with a history of imprisonment earned 52% less than those with no history of incarceration.

Employment is a health issue that should be of concern to healthcare providers because it provides income, access to health insurance and medical treatment, and social connection [ 44 ]. Precarious employment and low income are linked to poor health, and some research has shown that people who use drugs and who are precariously employed face increased vulnerability to violence and HIV infection [ 45–47 ]. Being unemployed can lead to poverty and negative health effects and is associated with increased rates of drug use and SUDs [ 48 ].

Rather than supporting people who use drugs in accessing employment and the health benefits attached to it, drug war logic in employment settings can erect barriers. Eliminating or greatly restricting workplace drug testing as well as banning criminal background checks and professional licencing restrictions are important steps towards restoring access to employment and the many health benefits it confers.

Housing is another key SDOH that is significantly impacted by drug war policies and practices. Drug war surveillance in housing began with the passage of the Anti-Drug Abuse Act of 1988, which prohibited public housing authorities (PHAs) from allowing tenants to engage in drug-related activity on or near public housing premises and deemed such activity grounds for immediate eviction [ 49 ].

The Cranston-Gonzalez National Affordable Housing Act of 1990 expanded on this so that if a tenant’s family member or guest - regardless of whether they live on-site - engages in drug-related activity, the tenant and their household can be evicted [ 50 ]. Additionally, the Act states that evicted households must be banned from public housing for a minimum of three years unless the tenant completes an agency-approved drug treatment program or has otherwise been “rehabilitated successfully.” [ 50 ]

Six years later in 1996, Congress passed the Housing Opportunity Program Extension Act, which established “One Strike” laws and expanded on previous acts to give PHAs the authority to evict tenants if they or a guest was suspected of using or selling drugs, even outside of the premises [ 51 ]. This series of public housing policies requires neither a drug arrest nor proof that a tenant or their guest is involved in drug use, sales, or activity [ 52 ].

Private housing markets can also enforce zero-tolerance drug policies. In over 2,000 cities across the U.S., landlords can certify their property as “crime-free” by taking a class, implementing “crime prevention” architecture, and including clauses in their leases that allow for immediate eviction should a tenant, family member, or guest engage in “criminal activity,” particularly drug-related activity, on or off the premises [ 53 , 54 ]. Landlords, in close partnership with law enforcement, can invoke these laws by claiming to enforce crime-free ordinances, regardless of whether the alleged drug-related activity is illegal. In states across the U.S., private landlords have evicted tenants following an overdose [ 55–59 ]. In practice, these programs and ordinances increase the surveillance and displacement of low-income Black and Latinx tenants while not decreasing crime and potentially deterring someone from calling 911 for medical assistance in case of an overdose [ 55 ].

Evictions can lead to unstable housing or homelessness, which is associated with a host of chronic health problems, infectious diseases, emotional and developmental problems, food insecurity, and premature death [ 60–63 ]. Lacking a permanent address and reliable transportation makes it more difficult to receive and store medications and travel to a hospital or clinic; this is compounded with the stigma and discrimination that unhoused people often face from healthcare providers [ 64 ]. Being unhoused or housing unstable is also associated with difficulty obtaining long-term employment and education [ 65–67 ]. Longitudinal studies have found that family eviction has both short- and long-term impacts among newborns and children, including adverse birth outcomes, poorer health, risk of lead exposure, worse cognitive function, and lower educational outcomes [ 68 ]. These negative health outcomes are compounded for people with SUDs [ 69 ]. Unhoused people who use drugs are often forced into more unsafe, more unsanitary, and riskier injection and drug-using practices to avoid detection [ 70 ]. Evictions and homelessness are also associated with increased risk of drug-related harms, including non-fatal and fatal overdose, infectious diseases, and syringe sharing [ 71–73 ]. In addition, evictions can disrupt relationships between users and trusted sellers, making an already unregulated drug supply even more unpredictable [ 70 ].

While housing is understood as a key component of health and safety for all people, including people who use drugs, drug war logic can encourage and facilitate displacement, making it hard for housed people to remain so and creating barriers for those who are unhoused to find safe, affordable housing options. Solutions for improving housing access include ending evictions and removing housing bans based solely on drug-related activity or suspected activity, restricting landlords from using criminal background checks to exclude prospective tenants, and ending collaborations between housing complexes and law enforcement. Housing interventions that can improve the health of people who use drugs, in particular, include investing in Housing First programs and permanent supportive housing, providing eviction protection to people who call for help during an overdose emergency (i.e. expanding 911 Good Samaritan laws), and establishing overdose prevention centres.

Education is also understood as a strong predictor of health [ 74–76 ], but drug war logic in educational settings can subject young people who use drugs to punishment rather than needed support. Adolescent substance use is associated with sexual risk behaviour, experience of violence, adverse childhood experiences, and mental health and suicide risks, which should justify greater mental health and support services in schools [ 77 ]. Despite this, punitive responses to suspected or confirmed drug use, ranging from surveillance and policing to drug testing and expulsion, are commonplace in the field of education.

In 2018, 94% of high schools used security cameras, 65% did random sweeps for contraband, and 13% used metal detectors [ 78 ]. Twenty-four states and the District of Columbia have almost as many police and security officers in schools as they do school counsellors [ 79 , 80 ]. Drug use is one of the most common sources of referrals of students to police [ 80 ]. And recent estimates show that over a third of all U.S. school districts with middle or high schools had student drug testing policies [ 81–83 ].

Drug war policies also impact higher education, which is integral to economic mobility [ 84 ]. Prior to December 2020, federal law prohibited educational grants and financial aid to people in prison, one-fifth of whom were there for a drug offence, and drug convictions could lead to temporary or indefinite suspension of federal financial aid for students [ 85 ]. Still today, fourteen states have some temporary or permanent denial of financial aid for college or university education for people with criminal records [ 86 ].

These education policies – surveillance, policing, drug testing, zero tolerance, and barriers to financial aid – restrict access to education and ultimately impede economic wellbeing and positive health outcomes. For example, dropout risk increases every time a student receives harsh school discipline or comes into contact with the criminal legal system, including through school police officers [ 87 ]. Dropping out, in turn, is associated with higher unemployment and chronic health conditions [ 88 ]. In addition, discipline, such as expulsion for a drug violation, can contribute to more arrests for drug offences or the development of SUDs [ 89–91 ]. In contrast, school completion can help reduce higher risk substance use patterns [ 92 ], and education is a strong predictor of long-term health and quality of life [ 93 ].

Rather than supporting young people in completing their education and getting the support they may need, drug war logic prioritises punishing them in schools while often restricting access to financial aid and educational services for those seeking higher education. If we want to improve the health of young people, we need to reverse these policies. For example, the American Academy of Paediatrics opposes the random drug testing of young people based on an exhaustive review of the literature finding it did more harm than good [ 94 ]. Removing police from schools, ending zero-tolerance policies, and offering young people who use drugs counselling and support, instead of expulsion, could also help improve completion rates, ultimately leading to better health outcomes.

Public benefits

Though economic and food insecurity are linked with poor health outcomes, decades of drug policies have restricted access to public assistance programs. In 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) [ 95 ], and one of the stated goals was to facilitate the transition from reliance on public assistance to full-time employment [ 96 ]. This law restricted benefits for people who use drugs, people with prior drug convictions, and their families in several ways.

The PRWORA introduced a lifetime ban on Supplemental Nutrition Assistance Program (SNAP) and Temporary Assistance for Needy Families (TANF) cash assistance benefits for people with felony drug convictions, unless the state modified or opted out of the ban. Today, one state - South Carolina - fully bars people with felony drug convictions from receiving SNAP, and twenty-one states have instituted a modified SNAP ban [ 97 ]. Seven states fully bar people with felony drug convictions from receiving TANF, and seventeen states and the District of Columbia have instituted modified TANF bans [ 97 ]. Common features of modified bans can include mandatory drug treatment, drug testing, and parole compliance [ 98 , 99 ]. These zero-tolerance bans have discriminatory and disproportionate impacts among Black and Latinx people and women, who are disproportionately incarcerated for federal and state drug offences [ 100 ].

Drug testing of public benefits applicants is less discussed in the peer-reviewed literature [ 101 ]. Although the PRWORA authorised, but did not require, drug screenings of public benefits applicants, today 13 states drug test TANF applicants [ 102 , 103 ]. States that drug test as a condition of receiving TANF can only test if drug use is suspected. For example, some states automatically require people with felony drug convictions to take a drug test [ 104 ], while other states require all applicants to undergo a drug screening questionnaire and then require a test if there is suspicion of drug use [ 105 ]. Many TANF applicants, who are already low income, are expected to pay for their drug tests. The impact of drug testing on people with felony drug convictions is compounded since they are already disproportionately poor, unemployed, and food insecure compared to people who have never been incarcerated [ 106–108 ].

In most states that test, a positive drug test can temporarily or permanently disqualify a person from receiving TANF benefits [ 105 ]. Even if cash assistance is allocated to other household members (e.g. children) through a different parent or guardian, overall benefits for the family can be reduced. In some cases, a person who tests positive for drugs may still receive benefits but only if they complete mandated, abstinence-based treatment [ 105 ]. Such policies and practices can deter many eligible candidates and those in need of support from ultimately seeking these public benefits altogether [ 109 ].

There are numerous negative health consequences associated with food and economic insecurity [ 110–112 ]. In particular, studies have found that loss or reduction of SNAP is associated with increased odds of household and child food insecurity and increased odds of forgoing health or dental care [ 113 ]. Loss or reduction of TANF is associated with increased risk of hunger, homelessness or eviction, utility shutoff, inadequate medical care, and poor health [ 114 ].

When people are seeking financial and nutritional support to better care for themselves and their families, especially in crisis, drug war logic justifies more barriers to SNAP and TANF and the discontinuation of assistance precisely when people need it the most. To better support financial and economic security of low-income people, advocates can support removing TANF and SNAP bans for people who have felony drug convictions, ending drug testing requirements for public assistance, eliminating mandatory drug treatment requirements for public benefits applicants and recipients, and adequately investing in public benefit programs to ensure they provide enough assistance for families.

Family regulation

The family regulation system (FRS) often treats any drug use as a predictor of child abuse or neglect, even though research shows that poverty is one of the largest predictors of adverse infant and child health outcomes [ 115 ]. Drug war logic within the FRS justifies the separation and punishment of families for drug use even absent evidence of abuse or neglect. Half of all states and the District of Columbia require healthcare professionals to report any suspected drug use during pregnancy to FRS authorities, and eight states require them to drug test patients suspected of drug use [ 116 ]. Statutes in nineteen states and the District of Columbia define any drug use during pregnancy as a form of child maltreatment [ 117 ]. These policies exist even though most people who use drugs use them infrequently and do not meet criteria for SUDs [ 118 ]. Additionally, evidence proving causal links between prenatal drug use and child harm and maltreatment is limited. Research finds that in utero exposure to drugs may not have long-term negative developmental impacts on the child and that confounding variables, like poverty and food insecurity, have significant and often stronger impacts on child development than drug use [ 117 ].

Drug testing, mandatory reporting, and the prospect of punishments result in poorer health outcomes for pregnant people who use drugs, especially if they struggle with their use. A fear of punishment and family separation leads some pregnant people who use drugs to avoid honest, open conversations about healthcare needs or how to reduce drug use harms so that many delay, avoid, or forgo prenatal care altogether [ 119 , 120 ].

Like healthcare professionals, most school teachers, counsellors, social workers, and mental healthcare providers are required by law to report any suspicion of child maltreatment or neglect, which then initiates an FRS investigation [ 121 ]. A child can be removed from their home if the caregiver tests positive for drugs, even absent any other evidence of mistreatment or abuse. In addition, a positive drug test can lead to a parent being mandated to complete abstinence-based treatment even if the parent does not meet criteria for a diagnosable SUD [ 122 ]. Intervention by the FRS, such as placing children in foster care, can lead to adverse education, employment, and mental and behavioural health outcomes among children; increased parental mental illness diagnoses; and increased parental drug use to cope with the trauma of family separation [ 123–125 ].

These policies have disproportionate impacts on Black people. Black pregnant women are more likely to be tested for drug use, and Black women are reported to the FRS at higher rates than white women [ 126–128 ]. Over half of Black children will experience an FRS investigation at some point during their lifetime [ 129 ]. One study that analysed cumulative foster system removals between 2000 and 2011 found that 1 in 17 U.S. children, 1 in 9 Black children, and 1 in 7 Indigenous children will experience foster placement before they turn 18, and data show that many FRS cases involve allegations of parental drug use at some point [ 130 ]. These disparities in FRS involvement are not because Black parents are using drugs or mistreating their children at higher rates; rather, it’s because Black families, especially poor Black families, more often encounter state systems – like public hospitals and public benefits offices – and mandated reporters within these systems that monitor behaviour and drug use [ 131 ].

Drug war logic prioritises separation, coercion, and punishment in families where drug use occurs or is suspected. For pregnant people and parents who do use problematically, their use should be treated as a public health issue, according to international bodies like the United Nations General Assembly Special Session on drugs [ 132 ]. Advocates can support legislative policy changes to prohibit removals based on drug tests alone, eliminate mandatory reporting for drug use alone, and repeal laws that define drug use during pregnancy as de facto child abuse or maltreatment. Healthcare professionals can also advocate to only allow drug testing when medically necessary and when the parent provides informed consent; support practices that keep parents and infants together, like breastfeeding and skin-to-skin contact, that can mitigate the effects of neonatal abstinence syndrome [ 133 , 134 ]; and create programs providing both perinatal healthcare and SUD treatment to improve access and continuity of care as well as initiation and maintenance of medications for addiction treatment.

Substance use treatment system

Substance use treatment can be an essential lifeline for people with SUD working towards recovery. Yet surveillance and punishment are embedded into SUD treatment through the numerous constraints placed upon clients because of the role of institutional referral sources in treatment, such as the criminal legal system, the FRS, social services, and others. Studies suggest that roughly 25% of clients in publicly funded treatment were referred from the criminal legal system as a condition of their probation, parole, or drug court program [ 135 ]. This has led to therapeutic jurisprudence: the belief that the criminal legal system can support and facilitate efforts towards rehabilitation using the threat of incarceration [ 136 ]. Another 25% of clients are referred to treatment by other sources, including the FRS, social services, schools, and employers [ 133 ]. Criminal legal controls such as those from the courts, or formal social controls such as those from the other aforementioned institutions, coerce clients to either comply with treatment or face other harsh consequences, like incarceration, the termination of parental rights, or losing public benefits [ 137 ].

Treatment providers monitor client compliance and abstinence by conducting and observing routine urine drug tests, and providers are often in regular contact with referral sources about client progress in treatment. Any drug use or negative progress reports can be used as grounds to sanction those on probation, parole, or in drug court which can lead to incarceration and, in cases of drug courts, longer sentences than if participants had accepted a jail sentence [ 136 ]. Clients referred by other sources can also face ramifications for positive drug tests or treatment non-compliance, impacting child custody hearings as well as their ability to secure certain social services and resources, stay enrolled in school, or remain employed.

Referral sources influence the type of care that clients receive in facilities, including evidence-based treatments. Research suggests that only 5% of clients with opioid use disorder (OUD), who were referred to treatment from the criminal legal system, received either methadone or buprenorphine, compared to nearly 40% those who were not referred by the system [ 138 ]. This represents an extension of a broader problem within the criminal legal system wherein access to these gold standard medications for OUD is almost nonexistent in most jails and prisons across the U.S [ 139 ].

Drug war logic is also deeply rooted in the restrictions for prescribing and dispensing methadone and buprenorphine since they are controlled substances under the oversight of the Drug Enforcement Agency, a federal law enforcement entity. When taken in effective doses, these life-saving medications can cut the risk of overdose and all-cause mortality dramatically among people with OUD [ 140 ]. However, due to tight federal restrictions and guidelines for these controlled medications, patients can be subjected to routine drug testing, counselling requirements, daily clinic visits, and observed or highly monitored medication dispensing. Patients deemed non adherent to medications or who test positive for other drugs can then be subjected to dose reductions, required to attend treatment more frequently, or even terminated from care altogether [ 141 ]. The tight restrictions on both methadone and buprenorphine, combined with the oversight of the DEA, create obstacles for prescribers and stigmatise these medications by conveying that they cannot be used like other medications in routine healthcare [ 142 ]. These policies have also contributed to striking racial disparities in who receives buprenorphine versus methadone due to costly co-pays and insurance coverage issues [ 143 ]. Studies also suggest that the DEA’s involvement in monitoring buprenorphine has made pharmacies reluctant to stock the medication or to dispense it to patients for fear of triggering an investigation [ 144 , 145 ]. Ultimately, it is estimated that only 10% of all people with OUD receive these medications [ 146 ].

Providers can take steps to extract the drug war from our substance use treatment system, through their conscious and judicious documentation of treatment progress since those records could be used by criminal legal and other referral sources in decisions about clients and their families. In addition, eligible buprenorphine prescribers should begin prescribing to patients and join advocacy efforts to change policies to expand access to buprenorphine and methadone through looser restrictions.

Healthcare system

People with SUDs often have high rates of co-occurring medical needs requiring treatment, including psychiatric disorders, infectious diseases, and other chronic health conditions. However, research suggests that people with SUDs are often deterred from seeking healthcare to address their medical needs due to prior negative and stigmatising experiences with providers, and that having experienced discrimination in healthcare is associated with greater risk behaviours, psychological distress, and negative health outcomes among people who use drugs [ 147–149 ]. Some of these challenges are due to a lack of training on how to work with patients with SUDs, in addition to pre-existing personal biases and stigmatising views held by healthcare professionals, which impacts the type of care they provide [ 142 ].

The widespread use of drug testing in healthcare settings also creates ethical challenges and conflicts for providers and patients since results are often entered into the electronic health record (EHR). While EHRs are typically thought of as beneficial and intended for greater transparency and access, they also pose challenges surrounding patient privacy, confidentiality, and autonomy; they can, therefore, make patients reluctant to disclose drug use or consent to drug testing [ 150 ]. For instance, medical records that include drug test results, can be accessed by a wide variety of actors in the medical system, subpoenaed for court, and used in future medical decision making without the patient’s knowledge or consent. Providers might not receive adequate training to weigh the need for these tests as part of treatment adherence monitoring with the potential social or legal ramifications of these tests for the patient. Patients might also not be adequately informed of these potential consequences prior to testing.

Universal drug screening and testing in obstetric and gynecological care is an example wherein testing intersects with the role of most healthcare providers as mandated reporters. Mandated reporting for suspected child abuse or neglect due to parental drug use is purported to protect the foetus or children in the parents’ custody, yet this can often be a deterrent for patients to seek medical treatment altogether if they believe that they may lose their children or be subject to other mandates. The racial and class disparities in how such testing is used, as well as the punitive measures used against families, have been noted earlier in the text but is a compelling reason for healthcare providers to consider making recommendations for counselling or supportive case management in order to address family challenges.

Healthcare providers need more training and resources to work with patients with SUDs to ensure that they are engaging them in evidence-based treatments and treating their complex medical needs while avoiding some of the lifelong and harmful ramifications that can occur when drug testing, health records, and mandated reporting deter patients from seeking and receiving care.

Because of the social, economic, and health effects of drug policies, the work of ending the drug war cannot be situated within criminal legal reform efforts alone. The drug war and a punitive drug war logic impact most systems of everyday life in the U.S., subjecting people to surveillance, suspicion, and punishment and undermining key SDOH, including education, employment, housing, and access to benefits. Combined, these have resulted in poorer health outcomes for individuals, families, and communities, particularly for people who use drugs. These policies and practices, while race-neutral as written, are not [ 151 ]. The targeted effects on people of colour further entrench health and economic disparities. As the public and policymakers call for a health approach to drug use, it is vital to recognise how systems meant to care and support are often unable to serve their intended purposes; rather than help people who use drugs or are suspected of using drugs, they frequently punish them.

In their day-to-day practice, healthcare professionals must understand the deep roots of the drug war as well as their role in both perpetuating and undermining drug war logic and practices. Healthcare providers can treat people who use drugs with dignity, respect, and trust and ensure that healthcare and treatment decisions are made in partnership with individuals. Medical professionals can also work to situate drug use within a larger social and economic context [ 152 ], understanding that drug-related harms often stem from lack of resources – like housing and food precarity, economic insecurity, and insufficient healthcare – rather than from drugs themselves. Treatment need not be the only antidote for people who experience drug-related harms but should be one option among an array of health services, resources, and support.

At the mezzo- and institutional levels, healthcare providers can advocate to shift hospital and programmatic policies around drug testing, mandatory reporting, and collaborations with law enforcement. As outlined in this paper, drug testing is not an effective monitoring strategy for care and support, but rather, it is more often a punitive tool of surveillance. If drug testing cannot be eliminated, at the very least, patients should have the right to understand the implications of drug testing and provide explicit consent for the test. To the extent possible, providers should not share private patient information with police or state agencies. Healthcare professionals should understand the implications of reporting positive drug tests and suspicion of use and should work to change these policies where possible and inform their patients of them. Providers can ensure that their patients who use drugs have access to evidence-based, non-coercive harm reduction and treatment options in addition to robust and supportive primary healthcare. Healthcare professionals involved with medical education and licensure can work to ensure that all students graduate with a deep understanding of SDOH and the impact of the drug war on individual and community health.

Finally, healthcare providers can get involved with policy-level changes to end drug testing, mandatory reporting, zero-tolerance policies, coerced treatment, and denial of services and resources based on arrest or conviction records at the municipal, state, and federal levels. Providers can follow the leadership and expertise of people who use drugs, some of whom have organised themselves into user unions [ 153 ]. Policy advocacy can include drafting and joining sign-on letters, delivering expert testimony, speaking to media, writing op-eds, and lobbying medical professional organisations to release policy statements. Providers, who see firsthand the consequences of the war on drugs, are well positioned to be effective advocates in undoing these harmful policies that have for too long undermined key SDOH [ 154 ]. In order to improve individual and collective health, healthcare providers should resist drug war logic and work to transform these systems so they can truly promote health and safety.

For the purposes of this paper, we are using the term “Family Regulation System,” coined by Emma Williams and used by other scholars, instead of the more commonly used term “Child Welfare System” to reflect the fact that, particularly for low-income families and families of color, state intervention often occurs in order to regulate their families rather than to prioritize the welfare of the entire family unit, of which the child is a part.

Authors contribution

All authors (AC, SV, JN, KF) were involved in the conception and drafting of the paper, revising it critically for intellectual content; and the final approval of the version to be published. All authors agree to be accountable for all aspects of the work.

Disclosure statement

All authors are employed by the Drug Policy Alliance, a non-profit policy advocacy organisation. No other interests to disclose.

Data availability statement

The views expressed in the submitted article are those of the authors.

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Ramapo College of New Jersey Home Page » Academics » SSHS » Ramapo Journal of Law & Society » Thesis » The War on Drugs and Jim Crow’s the Most Wanted: A Social and Historical Look at Mass Incarceration

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The War on Drugs and Jim Crow’s the Most Wanted: A Social and Historical Look at Mass Incarceration

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( PDF ) ( DOC ) (JPG) June 15, 2017

JOHN DEREK STERN [1]

“The legal battle against segregation is won, but the community battle goes on.” -Dorothy Day, 1956.

The 1960s mark a significant historical period, spurred by the Civil Rights Movement and the enactment of the Civil Rights Act in 1964. It ended the infamous Jim Crow era laws, guaranteeing voting rights, interracial marriage, desegregation of schools, etc. to name a few. However, despite the progress made through the enactment of the Civil Rights Act, the promise of equal opportunity remains far from realized. Race-based discrimination has continued through public policies, albeit in more complex ways.

The War on Drugs is one instance of public policy that reveals systemic racism in our society. The implementation of the policy specifically targeted African American communities for possession of drugs leading to imprisonment of a large number of people from minority backgrounds. Michelle Alexander argues that the War on Drugs is representative of a nationwide Jim Crow epidemic that has specifically singled out African Americans, diminishing their rights as citizens (Alexander, 2014). Even though the practice is against the Fourth and Eighth Amendments of our Constitution, its continuation suggests a continuation of Jim Crow era laws, albeit in more complex ways. Mass incarceration, carried on through the War on Drugs, has severe collateral damage on minority communities as well. It is largely responsible for the devastation of urban communities, the rise of the super ghettos in cities across the country, and the institutionalization of a prison industrial complex. This essay examines the patterns of systemic racism perpetrated through the War on Drugs and mass incarceration policies. Following Michelle Alexander’s argument, I argue that the War on Drugs is not only a new form of Jim Crow era discrimination, but also responsible for systemic racism in our criminal justice system perpetrated through the institutionalization of a prison industrial complex.

Prisons: the historical context

The institutionalization of prison systems in the US begun in the eighteenth century, especially after Jeremy Bentham’s panopticon design, which enabled detaining a large number of prisoners. While the panopticon model allowed the imprisonment of a vast number of people, the end of slavery after the Civil War and the need for free labor provided the rationale for the prison system, leading to the institutionalization of a prison industrial system in the country.

Early accounts of crime and punishment in the country show that corporal punishment was the preferred form of retribution, and imprisonment was limited to minor crimes like debt. Legal historian Harry Elmer Barnes accounts that crime, as per the Act of 1788, included treason and felonies:

The Act of 1788 for ‘punishing Treasons and Felonies, and for the better regulating of proceedings in cases of Felony,’ there were sixteen capital crimes enumerated on the statute books-treason, murder, rape, buggery, burglary, robbery of a church, breaking and entry, robbery of person, robbery and intimidation in dwelling houses, arson, malicious maiming, forgery, counterfeiting, theft of chose in action, second offense for other felonies, and aiding and abetting any of the above crimes (Barnes, 1921, p. 39).

The crimes listed here are (for the most part) similar to what society deems as deviant in our present times, although possession of drugs or narcotics was not a crime under the Act of 1788.

The important difference between committing a crime in 1788 in opposition to today is the degree of punishment. Sending violators to the gallows was very common in the early years. In cases where the perpetrator’s death sentence was not issued, Barnes (1921) explains:

Corporal punishment of another and less severe type was employed. The stocks, pillory, whipping, branding and the ducking-stool were the normal methods used for imposing punishment. For the lesser offenses fines were prescribed, with an alternate sentence of corporal punishment if the fine was not paid. … Imprisonment was rarely employed as a method of punishment. Nearly all who were imprisoned for any considerable period of time were debtors, imprisonment for debt not having been abolished in New York State until the laws of April 7, 1819, and April 26, 1831, were passed, the latter in part as a result of the campaign against imprisonment for debt carried on by Louis Dwight of the Boston Prison Discipline Society (p. 39).

By the late 18 th century, imprisonment with hard labor gained acceptance over death penalty, and was adopted in the penal system reforms. The Howard League for Penal Reform explains:

Although the 18 th century has been characterized as the era of the ‘Bloody Code’ there was growing opposition to the death penalty for all but the most serious crimes… By the mid-18 th century imprisonment, with hard labor, was beginning to be seen as a suitable sanction for petty offenders (Howard League, p. 1).

Imprisonment gained legitimacy as a more civilized form of punishment, but it was mostly a form of labor camp. Those found guilty of small crimes were assigned to hard labor during the day, and at night they were held in a detention ship with appalling living conditions.

While the eighteenth-century reforms set the beginning of a process, it was Jeremy Bentham’s design of the ‘panopticon’ that institutionalized the notion of prison. Early prison designs were poorly constructed, which made it impractical to detain large number of prisoners. The Howard League for Penal Reform explains that in 1791 “Bentham designed the ‘panopticon’. This prison design allowed a centrally placed observer to survey all the inmates, as prison wings radiated out from this central position. Bentham’s ‘panopticon’ became the model for prison building for the next half century (Howard League, p. 1). This singular innovation was the first brick laid in regards to mass incarceration, as it allowed the states to imprison on a large scale and became an essential piece to the foundation of many prisons.

Furthermore, the end of Civil War and the victory of the Union created a new demand for labor as slavery was abolished. While on the one hand African Americans were promised freedom from slavery by the Thirteenth Amendment, on the other, through a prison system a new form of bonded labor was instituted. Kim Gilmore argues that the system of slavery, the Thirteenth Amendment, and the penal systems have a symbiotic relationship, responsible for the legitimation of mass incarceration:

Built into the 13th Amendment was state authorization to use prison labor as a bridge between slavery and paid work. Slavery was abolished ‘except as a punishment for crime.’ This stipulation provided the intellectual and legal mechanisms to enable the state to use ‘unfree’ labor by leasing prisoners to local businesses and corporations desperate to rebuild the South’s infrastructure. During this period, white ‘Redeemers’ — white planters, small farmers, and political leaders — set out to rebuild the pre-emancipation racial order by enacting laws that restricted black access to political representation and by creating Black Codes that, among other things, increased the penalties for crimes such as vagrancy, loitering, and public drunkenness (Gilmore, p. 1).

Although slavery was illegal, southern states empowered by the 13 th Amendment instituted the Black Codes, which would eventually become the infamous Jim Crow Laws. Black Codes and Jim Crow laws increased the severity of petty crimes, and acts such as loitering or jaywalking resulted in imprisonment. A majority of newly freed African Americans found themselves in prison, and back on the plantations. The criticism from labor unions restricted the use of prison labor to state use system only. Gilmore elucidates:

Labor unions, which had always been skeptical about prison labor, aggressively lobbied against the leasing of convicts to private corporations. Throughout the Depression years, unionists made it clear that an expanded use of prison labor would further imperil an already overfull work force and intervene in “free markets” in ways that threatened the stability of capitalism and laid bare its most excessive failures. Slowly, prisons and jails solved this problem by developing a ‘state-use’ system in which prison labor was used solely for state projects. This solution eliminated the competition between convict labor and union labor, while still enabling convicts to offset their cost to the state (Gilmore, p. 1).

By the mid 1900s, the use of convict labor for state projects was well established, and a number of private prisons were instituted to manage the prison population.

The Civil Rights Act dismantled Jim Crow laws but the use of convict labor remained. The War on Drugs policy, enacted in 1971 by President Nixon, supplanted Jim Crow laws with new measures to incarcerate populations for possession of drugs. While the law did not explicitly target communities, the enforcement of the law disproportionately burdened African American communities. Like post-Civil War Black Codes and Jim Crow laws, the War on Drugs was the next platform to repeat the cycle of incarcerating African Americans. However, this time around it was not exclusive to the South but throughout the entire United States.

The War on Drugs

In June of 1971, President Nixon declared War on Drugs, to classify and regulate the use of drugs and other substances. This policy, as Drug Policy Alliance notes, “increased the size and presence of federal drug control agencies, and pushed through measures such as mandatory sentencing and no-knock warrants” (DPA). In 1970, after Nixon’s declared War on Drugs, the Comprehensive Drug Abuse Prevention and Control Act (CDAPC) was enacted to create a list of scheduled drugs. The Act included marijuana in the list of Schedule I drugs, with heroin and LSD. This led to a process of criminalizing marijuana use despite recommendations of a high-level committee to decriminalize the possession and distribution of marijuana for personal use (DPA, p. 1). Marijuana accounts for hundreds of thousands of arrests each year. The listing of marijuana as a Schedule I drug is a clear example of the intention of the federal government to make sure popular drugs carry the most severe penalties.

Although President Nixon instituted the policy, President Reagan expanded the reach of the War on Drugs, leading to “skyrocketing rates of incarceration…The number of people behind bars for nonviolent drug law offenses increased from 50,000 in 1980 to over 400,000 by 1997” (DPA, p. 1). The enactment of the Anti-Drug Abuse Act of 1986 introduced a mandatory minimum sentence punishment for possession and use of controlled substances. Jail sentences varied from 5-10 years based on the drug and amount in possession (PBS, p.1). The idea behind mandatory minimum sentences was to encourage the government to prosecute high-level drug offenders. However, the amounts that triggered a substantial sentence were often lower than those high-level drug trafficking (PBS, p. 1).

This policy spiraled the prison population during the 1980s, and prison beds were filled up for minor offenses. Additionally, laws such as California’s three strikes law amplified the process. In fact,

the law imposed a life sentence for almost any crime, no matter how minor, if the defendant had two prior convictions for crimes defined as serious or violent by the California Penal Code. According to official ballot materials promoting the original Three Strikes law, the sentencing scheme was intended to ‘keep murders, rapists, and child molesters behind bars, where they belong.’ However, today, more than half of inmates sentenced under the law are serving sentences for nonviolent crimes (Stanford, p. 1).

The three strikes law sentenced people for victimless drug crimes, and in a two-decade span, millions of people have been incarcerated. The data from the Stanford Three Strikes Project shows that more minorities were targeted and charged with small crimes, and these often added up to three total charges, sentencing them to life in prison. Through public pressure, and the passing of Proposition 36, the three strikes law has been struck down. In the first eight months after the enactment of Proposition 36, over 1,000 prisoners were released from custody. Of the inmates released, the recidivism rate stands at less than 2 percent, a number well below state and national averages (Stanford, p. 1).

The law imposed a life sentence for almost any crime, no matter how minor, if the defendant had two prior convictions for crimes defined as serious or violent by the California Penal Code. According to official ballot materials promoting the original three strikes law, the sentencing scheme was intended to ‘keep murders, rapists, and child molesters behind bars, where they belong.’ However, today, more than half of inmates sentenced under the law are serving sentences for nonviolent crimes (Stanford, p. 1).

The War on Drugs’ only purpose is to control and imprison, not protect. Policies that have given support to the War on Drugs are detrimental to society, and only provided a new system of fueling private prisons with inmates in the post-Jim Crow era. The War on Drugs increased federal prison population exponentially, by almost 790-percent, according to the ACLU. Fareed Zakaria explains:

Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today,’ writes the New Yorker’s Adam Gopnik. ‘Overall, there are now more people under ‘correctional supervision’ in America–more than 6 million–than were in the Gulag Archipelago under Stalin at its height…’ So something has happened in the past 30 years to push millions of Americans into prison. That something, of course, is the War on Drugs. Drug convictions went from 15 inmates per 100,000 adults in 1980 to 148 in 1996, an almost tenfold increase. More than half of America’s federal inmates today are in prison on drug convictions. In 2009 alone, 1.66 million Americans were arrested on drug charges, more than were arrested on assault or larceny charges. And 4 of 5 of those arrests were simply for possession (Zakaria, 2012. p, 1).

Further, as ACLU data shows, a black man “is 3.73 times more likely to be arrested for marijuana possession than a white person is, despite approximately equal rates of drug use.” Additionally, NAACP data demonstrates African Americans constituted “nearly 1 million of the total 2.3 million incarcerated population… incarcerated at nearly six times the rate of whites.” The model of using prison as a means to suppress African Americans is an old algorithm used post-Civil War. The new model may look different and not be discriminatory on the surface, but accomplishes the same goal.

The prison industrial complex and mass incarceration

Incarceration as the method to regulate drug use radically changed the prison culture in our society, institutionalizing a prison industrial complex. Rachel Herzing of Public Research Associates defines the prison industrial complex as “the overlapping interests of government and industry that use surveillance, policing, and imprisonment as solutions to what are, in actuality, economic, social, and political ‘problems’” (Herzing, p. 1). Private prisons are a stark example of this partnership between government and industry. The increase in incarceration rates resulted in a new demand for more facilities, which spurred the growth of private prisons, leading to institutionalization of an entire for-profit supply chain, from building prison infrastructure to providing food for inmates to day-to-day management.

The prison industrial complex has its origin in the Rockefeller drug laws. Brian Mann argues that there is link between the War on Drugs and the Rockefeller drug laws of the 1970s, named after their champion, Gov. Nelson Rockefeller, which put even low-level criminals behind bars for decades. “Those tough-on-crime policies became the new normal across the country” (Mann, 2013, p. 1). The system of addressing possession and use of narcotic drugs through the penal system led to the social acceptance of “get tough on crime” philosophy. It was widely believed that longer prison systems would discourage individuals from using drugs. This social perception legitimized the War on Drugs and the institutionalization of private prisons.

In addition, this process of criminalization of drugs, where “entire groups of people of particular social circumstances… (were) targeted by law enforcement for surveillance, punishment, and control” (Herzing, p. 1), was a tool to subjugate lower class citizens, in particular African Americans. Michelle Alexander, in her path-breaking work The New Jim Crow, compares criminalization of drugs with Jim Crow laws. For instance, she argues that systems of segregation such as denial of voting rights present during Jim Crow were perpetuated through the War on Drugs. She argues that “an extraordinary percentage of black men in the United States are legally barred from voting today” due to an unfair criminal justice system that has mass imprisoned and classified an incredible number of African Americans as felons for victimless drug charges (Alexander, 2010, p. 1). “Once you’re labeled a felon, the old forms of discrimination- employment discrimination, housing discrimination, denial of the rights to vote, denial of educational opportunity, denial of food stamps and other public benefits and exclusion from jury service- are suddenly legal… we have not ended racial caste in America; we have merely redesigned it” (Alexander, 2010, p. 2). While the Civil Rights Act aimed to bring in racial equality, it failed to address racial prejudice.

For over two centuries racial biases have been entrenched in law. The country was formed under slavery, when African Americans were considered to be “three- fifths of a man, not a real, whole human being” (Alexander, 2010, p. 26). Following the abolition of slavery, the suppression of African Americans continued through Jim Crow laws. The Civil Rights Act formally dismantled the Jim Crow system of discrimination in the public sphere- public accommodation, employment, voting, education, and federally financed activities. The Supreme Court in Heart of Atlanta Motel v. U.S . (1964) upheld the civic rights of African Americans under the Commerce Clause . Yet, as Alexander argues, the patterns of discrimination continued even after the enactment of the Civil Rights Act. She explains that after the dismantlement of Jim Crow laws,

conservative whites began, once again, to search for a new racial order that would conform to the needs and constraints of time. This process took place with the understanding that whatever the new order would be, it would have to be formally race- neutral- it could not involve explicit or clearly intentional race discrimination. A similar phenomenon had followed slavery and Reconstruction, as white elites struggled to define a new racial order with the understanding that whatever the new order could be, it could not include slavery. Jim Crow eventually replaced slavery, but now it too had died, and it was unclear what might take its place. Barred by law from invoking race explicitly, those committed to racial hierarchy were forced to search for new means of achieving their goals according to the new rules of American Democracy (Alexander, 2010, p. 40).

The War on Drugs provided the new platform to discriminate against African Americans without officially banning their rights through written laws like in the Jim Crow era. Thus, racism did not end but was rather re- embodied through another outlet. The War on Drugs “could finally justify an all-out war on [an] ‘enemy’ that had been racially defined years before” (Alexander, 2010, p.52). The War on Drugs became a chief medium through which private prisons were filled through disproportionate targeting of African Americans. For instance, despite a US Sentencing Commission report that found racial bias in the sentencing of African Americans on crack and cocaine charges, Congress dismissed the review of the process. Additionally, the inability to challenge discriminatory practices in the Court further legitimized the process. “The court has closed the courthouse doors to claims of racial bias at every stage of the criminal justice process, from stops and searches to plea bargaining and sentencing, mass incarceration is now off limits to challenges on the grounds of racial bias” (Alexander, 2010, p. 194).

A good example showing the Supreme Court’s reluctance to address race issues is the landmark case McCleskey v. Kemp (1987) . In 1978, the petitioner, a black man, was convicted in a Georgia trial court of armed robbery and murder, arising from the killing of a white police officer during the robbery of a store. An all-white jury recommended the death penalty on the murder charge. The trial court followed the recommendation, and the Georgia Supreme Court affirmed. The petitioner sought habeas corpus relief in Federal District Court. His petition included a claim that the Georgia capital sentencing process was administered in a racially discriminatory manner in violation of the Eighth and Fourteenth Amendments. The statistical data provided by McCleskey showed a bias towards jurors to sentence African Americans to death compared to whites, clearly showing that in the over 2,000 murder cases that occurred in Georgia during the 1970s black defendants who killed white victims had the greatest likelihood of receiving the death penalty (Justia).

However, the Court rejected the petitioner’s claims by stating that statistics were insufficient to demonstrate unconstitutional discrimination under the Fourteenth Amendment or to show irrationality, arbitrariness, and capriciousness under the Eighth Amendment. This particularly shows that proving racial discrimination is difficult in the court system, as many times discrimination is not a cause and effect relationship, but rather a correlation based on the question of disproportionate burden.

The prison industrial system, surveillance, and racial bias

The system of filling of prisons through criminalization of drugs has evolved hand in hand with a surveillance system. Since the landmark Terry v. Ohio case of 1968, the Court has substantially expanded police power to search and seize, limiting the right to privacy of individuals.

Prior to 1968, “it was generally understood that the police could not stop and search someone without a warrant unless there was a probable cause to believe that the individual was engaged in criminal activity… a basic Fourth Amendment principle” (Alexander, 2010, p. 63). Terry expanded the notion of warrantless search to include suspicious behavior as a preventive measure. In this case, which challenged the arrest of three men in front of a jewelry store without probable cause, the Supreme Court affirmed that police officers could interrogate and frisk suspicious individuals without probable cause for an arrest, providing police officers can articulate a reasonable basis for the stop and frisk. When an officer of the law has the ability to confront an individual merely based on whatever he believes constitutes suspicion, it leaves society vulnerable. When the means to justify a warrantless search are endless, it creates a less free society. For instance, the Terry rule was used to target African Americans for sporting flat brim hats and hooded sweatshirts. Although the objective of Terry v. Ohio was to prevent serious crime, it has implications beyond this case as it radically expanded police authority to investigate crimes where there is a reasonable basis for suspicion (ACLU, p. 1 ).

Terry v. Ohio was the stepping-stone towards a diminished right of privacy and enabled the establishment of a surveillance system. In later cases such as Whren v. United States (1996), the Court further limited the privacy rights of individuals against warrantless searches and seizure in the Fourth Amendment by allowing law enforcement the ability to stop a person in a motor vehicle based on pretext. As Professor Alexander claims, the pretext of a “traffic stop (was) motivated not by any desire to enforce traffic laws, but instead motivated by a desire to hunt for drugs in the absence of any evidence of illegal drug activity… pretext stops… have received the Supreme Court’s unequivocal blessing” (Alexander, 2010, p. 67).

She explains the greater implication of Whren is that diminished rights and mass incarceration gained legal recognition. Alexander notes that in Whren , specifically:

Although the officers weren’t really interested in the traffic violation, they stopped the pair anyway because they had a ‘hunch’ they might be drug criminals… according to the officers the driver has a bag of cocaine in his lap… On appeal, Whren and Brown challenged their convictions on the ground that pretextual stops violate the Fourth Amendment. They argued that because of the multitude of applicable traffic and equipment regulations, and difficulty of obeying all traffic rules perfectly at all times, the police will nearly always have an excuse to stop someone ..… Allowing the police to use minor traffic violations as a pretext for baseless drug investigations would permit them to single out anyone for drug investigation without any evidence… that kind of arbitrary police conduct is precisely what the Fourth Amendment was intended to prohibit. The Supreme Court rejected their argument (Alexander, 2010, pp. 67-68).

Together Terry v. Ohio and Whren v United States paved the path of warrantless searches that led to increase in police surveillance and mass incarceration. With no privacy from searches on foot or in a vehicle, and “with no requirement that any evidence of drug activity actually be present before launching a drug investigation police officers… judgment… would be influenced by… racial stereotypes” (Alexander, 2010, p.108). Together, the War on Drugs and expanded police power to stop and frisk built a perfect machine to mass target and incarcerate. Law enforcement stopped individuals based on previous bias or profiling and justified that action through various pathways like a routine traffic stop.

Additionally, Illinois v. Caballes (2005) shows the extent to which the surveillance power of police has been expanded. In this case, Roy Caballes was stopped for speeding by a state trooper in Illinois. During the stop, the trooper noticed an Atlas, an air freshener, and some suits in the car. He asked Caballes for permission to search the car and was denied. A second trooper arrived at the scene with a drug-sniffing dog. While walking around the car, the dog alerted the trooper to the presence of drugs. The first trooper searched the car and found marijuana in the trunk. Caballes was arrested, tried, and convicted of a narcotics offense. The Illinois Supreme Court reversed the trial court’s decision, arguing that use of the dog “unjustifiably enlarge[ed] the scope of a routine traffic stop into a drug investigation.” The state of Illinois appealed to the U.S. Supreme Court… [which found] a dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment (ABA, p. 1).

The jurisprudence on search and seizure clearly demonstrates a shift in law from protection of constitutional rights to privacy to legitimizing surveillance through stop and frisk as a justified means to conduct a search. Terry and Whren chipped away at the Fourth Amendment’s protection from warrantless search and seizure, which is inherently a right to privacy. Furthermore, in the 2002 case Lockyer v. Andrade the Court upheld the constitutionality of mandatory sentencing laws. In Lockyer v. Andrade, t he jury found Andrade guilty and then found that he had three prior convictions that qualified as serious or violent felonies under the three strikes regime. Because each of his petty theft convictions triggered a separate application of the three strikes law, the judge sentenced him to two consecutive terms of 25 years to life.

Andrade appealed his conviction, which was overturned by the Ninth Circuit. The Supreme Court found that the Ninth Circuit was incorrect and Andrade’s double life sentence was not in violation of the Eighth Amendment’s cruel or unusual clause. The Supreme Court could have dismantled California’s three strike law. Many would argue that two 25 years to life sentences for petty theft seems quite cruel and unusual. Upholding mandatory sentencing laws as constitutional has also added to mass incarceration. Alexander explains that “mandatory sentencing laws are frequently justified as necessary to keep ‘violent criminals’ off the streets, yet those penalties are imposed most often against drug offenders and those who are guilty of nonviolent crime” (Alexander, 2010, p. 91). Although Andrade did not commit a drug crime, the decision to uphold mandatory sentencing laws has allowed the incarceration of individuals to long sentences for drug and non-drug related offenses.

The most recent case that comments on the Fourth Amendment is Rodriguez v. United States, decided on April 21st, 2015. It reversed the precedent that was set in the case discussed above, Illinois v. Caballes. In Caballes, the court legalized the use of drug-sniffing dogs for routine traffic stops. Justice Ginsburg delivered the majority opinion:

This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the violation.

Ginsburg’s explanation is vintage Fourth Amendment protection of privacy against illegal search and seizure. Because waiting for a drug-sniffing dog surpasses the usual time for a routine police stop, it falls under the unreasonable clause of the Fourth Amendment. This decision is the first in decades to put some sort of limit on police and unreasonable searches, but there are still some questions that are left unanswered. How long is too long in regards to what’s considered a reasonable time limit on a traffic stop? Regardless of the time restraint, Rodriguez can be viewed as a win towards resurrecting the power of the Fourth Amendment and it will remain to be seen how the Court rules from this point forward.

Since the beginning of the War on Drugs, the Court has dwindled the Fourth Amendment to coincide with an over empowering police force. As the Fourth Amendment protection from illegal search and seizure dwindled, it allowed for more arrests to be made as the Court legitimized policies that condone no knock warrants. The diminished right has opened the door for police officers to invade people’s property, whether that is in a vehicle or somebody’s backpack on the street, with the aim to find drugs to make an arrest. This transgression has opened the door to mass incarceration.

Further, the pattern of arrests in stop and frisk cases also demonstrates that police arrests are led by profiling of individuals based on race and ethnicity. NYPD’s stop and frisk policy is a case in point about expansive surveillance power of police and racial bias. The policy, modeled after Wilson and Kelling’s broken windows theory on redirecting policing to address disorder in society as a preventive measure, targeted African Americans and Latinos. The NYPD’s own reports on its stop-and-frisk activity confirm what many people in communities of color across the city have long known: the police are stopping hundreds of thousands of law abiding New Yorkers every year, and the vast majority are black and Latino (NYCLU, p. 1). The NYCLU report found that “from 2002 to 2011 black and Latino residents made up close to 90 percent of people stopped, and about 88 percent of stops – more than 3.8 million – were of innocent New Yorkers. Even in neighborhoods that are predominantly white, black and Latino New Yorkers face the disproportionate brunt” (NYCLU, p. 1).

You tube videos posted by anonymous bystanders and victims’ stories corroborate the data on NYPS’s unconstitutional practices. In a letter to the New York Times, titled “Why Is the N.Y.P.D. After Me?,” Nicholas K. Peart, a victim of stop and frisk procedures, recalled his experience: “When I was 14, my mother told me not to panic if a police officer stopped me. And she cautioned me to carry ID and never run away from the police or I could be shot. In the nine years since my mother gave me this advice, I have had numerous occasions to consider her wisdom” (Peart, 2011, p. 1). In his letter, Peart included an instance of how a police officer pulled a gun on him, on his 18th birthday at 96th Street and Amsterdam Avenue in Manhattan, even as he was just sitting on a chair by the street. He writes that the experiences

changed the way I felt about the police. After the third incident I worried when police cars drove by; I was afraid I would be stopped and searched or that something worse would happen. I dress better if I go downtown. I don’t hang out with friends outside my neighborhood in Harlem as much as I used to. Essentially, I incorporated into my daily life the sense that I might find myself up against a wall or on the ground with an officer’s gun at my head. For a black man in his 20s like me, it’s just a fact of life in New York (Peart, 2011, p. 1).

The role of the police is to protect and deter crime. When the police instead instill a sense of fear into African American people, they are accomplishing the same agenda as the Jim Crow laws of the South did generations ago.

Mass incarceration and surveillance policing promoted through the War on Drugs and the prison industrial complex have many impacts on society as well. Institutionally, they militarized the police and justified excessive use of force. Although done in the name of security, as public protests of the last two years show, this has resulted in an erosion of trust in society. Communities, especially minorities, are fearful of the police. Socially, the arrests have collateral effect on family structure. Many families are broken apart due to the economic, social and moral burden of incarceration. Young children are especially vulnerable when a parent or sibling is incarcerated. Child Trends, a nonprofit, nonpartisan organization talks about the ill impacts of mass incarceration on children’s mental health. Their study shows that about 1.5 million minor children have a parent (mostly fathers) incarcerated in state or federal prison in the United States, and there is significant variation along racial and ethnic lines:

One in every 15 African American children has a parent in prison, compared with 1 in every 42 Hispanic children and 1 in every 111 white children. But all of these children are more likely than their peers to exhibit academic difficulties, emotional problems, and antisocial behavior. In fact, it seems that incarceration, by itself, places children and families at increased risk—above and beyond the influence of parental mental health, educational, and employment issues–for a number of negative outcomes including family instability, poverty, and aggressive behavior. Examination of national data on children of unmarried couples in urban settings has revealed that, compared with other similarly-vulnerable children, those who have experienced parental incarceration are 40 percent more likely to have an unemployed father; 32 percent more likely to have parents living separately; 25 percent more likely to experience material hardship; and 44 percent more likely to exhibit aggressive behavior (Child Trends, 2013, p. 1).

Mass incarceration has had discernible impacts in poor and minority communities who have been disproportionately impacted by drug enforcement strategies (Stevenson, 2011). The negative impacts include felon disenfranchisement laws, displaced children and dependents, increased rates of chronic unemployment, destabilization of families and increased risk of re-incarceration for the formerly incarcerated (Stevenson, 2011, p. 1).

Even more disturbing is that politicians and the general public do not perceive “how high incarceration rates in poor communities of color tear apart the very social relationships that offer the best opportunity to nurture the well-being of our children and ultimately the common good of society. The effects of incarceration for an individual are well documented. These include: earning less money over the course of a lifetime (by age 48, the typical former inmate has earned $179,000 less than if he had never been incarcerated), finding it harder to stay employed, being less likely to become married, and highly likely to suffer a wide range of medical and psychological problems. … And for mothers who raise a child of an incarcerated father, they face multiple challenges, including, but not limited to, disruptions in parenting, inability to supervise children adequately, loss of role models, and need for public welfare supports that are increasingly difficult to gain” (Mikulich, 2010, p. 1).

The disruption of social relationships due to the War on Drugs has left inner cities in dismay. The ghetto is now transformed into a super ghetto with all avenues of society decimated. When a system is set into place that continues to deteriorate poor ghetto areas, there is no room for class/social mobility, the very basis of our capitalist economic system. Sarah Shannon and Christopher Uggen argue that incarceration is responsible for the deterioration of ghettos. Citing the work of Wacquant (2001), they note that “the extreme racial disparities in prison populations demonstrate that mass imprisonment is the fourth in a series of social institutions, starting with slavery, designed to control African Americans as a subordinate caste. … Prior to the 1970s, policy makers attempted to ameliorate poverty and racial inequality through social welfare policies. Wacquant argues that neoliberal economic changes and the dwindling social safety net of welfare programs since that time has led to the ‘hyper-incarceration’ of blacks as a means of managing and obscuring these disparities” (Shannon and Uggen, p. 1).

From the New Deal up until the War on Drugs, social welfare had been the focus of the federal government. This philosophy brought the United States out of the Great Depression. President Roosevelt increased the federal government with the development of welfare programs like the Food Stamp Plan and The Resettlement Administration. These programs were set into place to help those in extreme poverty overcome their situation. Today, it is not the agenda of the federal government to help poverty stricken groups overcome their situation. Policies implemented through the War on Drugs look to target and imprison rather than address structural issues such as poverty. Roosevelt’s New Deal ideology is no longer the driving force of the federal government but instead there is a new system that profits from incarceration.

Studies show that imprisonment has a cyclical effect on individuals and do not lower drug use. Cassia Spohn and David Holleran, for example, discovered that there is “no evidence that imprisonment reduces the likelihood of recidivism. Instead, we find compelling evidence that offenders who are sentenced to prison have higher rates of recidivism and recidivate more quickly… We also find persuasive evidence that imprisonment has a more pronounced criminogenic effect on drug offenders than on other types of offenders (Spohn and Holleran, 2002, p. 1).

Tough on crime policies have not positively benefited society but in fact created social upheaval, as “in schools and the workplace, the language of crime and punishment is used as a tool to interpret and address non-crime problems, a practice Simon (2007) calls ‘governing through crime.’ Common in these analyses is that change in penal policy is driven by political strategy, not by an actual increase in crime” (Shannon and Uggen, p. 1). At a larger level, the War on Drugs and mass incarceration have legitimized a crime focused, punitive culture in society.

The War on Drugs’ incarceration effects have validated the prison industrial complex and implicit racism in policing practices. It’s one thing to say drugs are bad morally, socially, and politically. However, to take the next step and codify law that makes it okay to target and imprison an entire race amounted to a new Jim Crow era. The policy has denied entire communities the right to exercise their political rights and live safe and secure lives in the absence of fear of violence. Individual freedom, the bedrock of our democratic values, does not extend to African Americans in the same way as it does to others. The promises of the Civil Rights Act can only be fulfilled by addressing the injustices of our criminal justice system, more particularly the prison industrial complex supported through the War on Drugs.

References:

Barnes, Harry Elmer. (1921). Historical Origin of the Prison System in America. Journal of Criminal Law and Criminology, 12 (1), pp.35-60.

Bergner, Daniel. (2014). Is Stop-and-Frisk Worth It? The Atlantic. April 1st.

Center for Evidence- Based Crime Policy. (n.d.) Broken Windows Policing. George Mason University. Retrieved from: http://cebcp.org/evidence-based-policing/what-works-in-policing/research-evidence-review/broken-windows-policing/

Child Trends. (2013). Parents in Prison: Why Keeping Low- Level Drug Offenders in Prison Hurts Kids, and What the Justice Department Is Doing to Help. Child Trends , August 22.

National Association for the Advancement of Colored People. (n.d.). Criminal Justice Fact Sheet. Retrieved from: http://www.naacp.org/criminal-justice-fact-sheet/

Day, Dorothy. (1956). The Catholic Worker . November 2.

Drug Enforcement Agency. (n.d.). Drug Schedules. Retrieved from: https://www.dea.gov/druginfo/ds.shtml

Drug Policy Alliance. (2014). A Brief History of the Drug War. Drug Policy Alliance . Retrieved from: http://www.drugpolicy.org/facts/new-solutions-drug-policy/brief-history-drug-war-0

Gilmore, Kimberly. (n.d.). Slavery and Prison – Understanding the Connections. History Is a Weapon . Retrieved from: http://www.historyisaweapon.com/defcon1/gilmoreprisonslavery.html

Herzing, Rachel. (n.d.). What is the Prison Industrial Complex? Political Research Associates . Retrieved from: http://www.publiceye.org/defendingjustice/overview/herzing_pic.html

The Howard League for Penal Reform. (n.d.). History of the Prison System. Retrieved from: http://howardleague.org/history-of-the-penal-system/

Klejment, Anne. (1986). Dorothy Day and the Catholic Worker: a bibliography and index . New York: Garland.

Mikulich, Alex. (2010). IT’S CRIMINAL! The Consequences of Mass Incarceration without Social Justice. Loyola University, New Orleans. December 1. http://www.loyno.edu/jsri/its-criminal-consequences-mass-incarceration-without-social-justice

N.P.R. (2013). The Drug Laws That Changed How We Punish. National Public Radio. February 14.

Peart, Nicholas. (2011). Why Is the N.Y.P.D. After Me? The New York Times . December 17.

Shannon, Sarah and Christopher Uggen. (n.d.). Incarceration as a Political Institution. University of Minnesota. Retrieved from: http://users.cla.umn.edu/~uggen/Shannon_Uggen_BW_10.pdf

Spohn, Cassia and David Holleran. (2002). The Effect of Imprisonment on Recidivism Rates of Felony Offenders: A Focus on Drug Offenders. Criminology, 40(2), pp. 329-358.

Stevenson, Bryan. (2011). Drug Policy, Criminal Justice, and Mass Imprisonment. Global Commission on Drug Policy. Retrieved from: http://www.globalcommissionondrugs.org/wp-content/themes/gcdp_v1/pdf/Global_Com_Bryan_Stevenson.pdf

Sterling, Eric. (n.d.). How Did It Come About that Mandatory Minimum Sentences for Drug Offenses Were Passed in 1986? Public Broadcast Station . Retrieved from: http://www.pbs.org/wgbh/pages/frontline/shows/snitch/primer/

New York Civil Liberty Union. (n.d.). Stop-and-Frisk Campaign: About the Issue. Retrieved from: https://www.nyclu.org/en/issues/racial-justice/stop-and-frisk-practices

PBS. Frontline. (n.d.). Thirty Years of America’s Drug War: A Chronology.

Stanford Law School. Justice Advocacy Project. (n.d.). Three Strikes Basics. Retrieved from: https://law.stanford.edu/stanford-justice-advocacy-project/three-strikes-basics/

Zakaria, Fareed. (2012). Incarceration Nation. Time Magazine . April 2.

[1] John Stern is a Law and Society graduate from Ramapo College, currently a law student at St. John’s University School of Law.

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Race, Mass Incarceration, and the Disastrous War on Drugs

Unravelling decades of racially biased anti-drug policies is a monumental project.

• Nkechi Taifa
• Cutting Jail & Prison Populations
• Social & Economic Harm

This essay is part of the  Brennan Center’s series  examining  the punitive excess that has come to define America’s criminal legal system .

I have a long view of the criminal punishment system, having been in the trenches for nearly 40 years as an activist, lobbyist, legislative counsel, legal scholar, and policy analyst. So I was hardly surprised when Richard Nixon’s domestic policy advisor  John Ehrlichman  revealed in a 1994 interview that the “War on Drugs” had begun as a racially motivated crusade to criminalize Blacks and the anti-war left.

“We knew we couldn’t make it illegal to be either against the war or blacks, but by getting the public to associate the hippies with marijuana and blacks with heroin and then criminalizing them both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night in the evening news. Did we know we were lying about the drugs? Of course we did,” Ehrlichman said.

Before the War on Drugs, explicit discrimination — and for decades, overtly racist lynching — were the primary weapons in the subjugation of Black people. Then mass incarceration, the gradual progeny of a number of congressional bills, made it so much easier. Most notably, the 1984  Comprehensive Crime Control and Safe Streets Act  eliminated parole in the federal system, resulting in an upsurge of  geriatric prisoners . Then the 1986  Anti-Drug Abuse Act  established mandatory minimum sentencing schemes, including the infamous 100-to-1 ratio between crack and powder cocaine sentences.  Its expansion  in 1988 added an overly broad definition of conspiracy to the mix. These laws flooded the federal system with people convicted of low-level and nonviolent drug offenses.

During the early 1990s, I walked the halls of Congress lobbying against various omnibus crime bills, which culminated in the granddaddy of them all — the  Violent Crime Control and Safe Streets Act  of 1994. This bill featured the largest expansion of the federal death penalty in modern times, the gutting of habeas corpus, the evisceration of the exclusionary rule, the trying of 13-year-olds as adults, and 100,000 new cops on the streets, which led to an explosion in racial profiling. It also included the elimination of Pell educational grants for prisoners, the implementation of the federal three strikes law, and monetary incentives to states to enact “truth-in-sentencing” laws, which subsidized an astronomical rise in prison construction across the country, lengthened the amount of time to be served, and solidified a mentality of meanness.

The prevailing narrative at the time was “tough on crime.” It was a narrative that caused then-candidate Bill Clinton to leave his presidential campaign trail to oversee the execution of a mentally challenged man in Arkansas. It was the same narrative that brought about the crack–powder cocaine disparity, supported the transfer of youth to adult courts, and popularized the myth of the Black child as “superpredator.”

With the proliferation of mandatory minimum sentences during the height of the War on Drugs, unnecessarily lengthy prison terms were robotically meted out with callous abandon. Shockingly severe sentences for drug offenses — 10, 20, 30 years, even life imprisonment — hardly raised an eyebrow. Traumatizing sentences that snatched parents from children and loved ones, destabilizing families and communities, became commonplace.

Such punishments should offend our society’s standard of decency. Why haven’t they? Most flabbergasting to me was the Supreme Court’s 1991  decision  asserting that mandatory life imprisonment for a first-time drug offense was not cruel and unusual punishment. The rationale was ludicrous. The Court actually held that although the punishment was cruel, it was not unusual.

The twisted logic reminded me of another Supreme Court  case  that had been decided a few years earlier. There, the Court allowed the execution of a man — despite overwhelming evidence of racial bias — because of fear that the floodgates would be opened to racial challenges in other aspects of criminal sentencing as well. Essentially, this ruling found that lengthy sentences in such cases are cruel, but they are usual. In other words, systemic racism exists, but because that is the norm, it is therefore constitutional.

In many instances, laws today are facially neutral and do not appear to discriminate intentionally. But the disparate treatment often built into our legal institutions allows discrimination to occur without the need of overt action. These laws look fair but nevertheless have a racially discriminatory impact that is structurally embedded in many police departments, prosecutor’s offices, and courtrooms.

Since the late 1980s, a combination of federal law enforcement policies, prosecutorial practices, and legislation resulted in Black people being disproportionately arrested, convicted, and imprisoned for possession and distribution of crack cocaine. Five grams of crack cocaine — the weight of a couple packs of sugar — was, for sentencing purposes, deemed the equivalent of 500 grams of powder cocaine; both resulted in the same five-year sentence. Although household surveys from the National Institute for Drug Abuse have revealed larger numbers of documented white crack cocaine users, the overwhelming number of arrests nonetheless came from Black communities who were disproportionately impacted by the facially neutral, yet illogically harsh, crack penalties.

For the system to be just, the public must be confident that at every stage of the process — from the initial investigation of crimes by police to the prosecution and punishment of those crimes — people in like circumstances are treated the same. Today, however, as yesterday, the criminal legal system strays far from that ideal, causing African Americans to often question, is it justice or “just-us?”

Fortunately, the tough-on-crime chorus that arose from the War on Drugs is disappearing and a new narrative is developing. I sensed the beginning of this with the 2008  Second Chance Reentry  bill and 2010  Fair Sentencing Act , which reduced the disparity between crack and powder cocaine. I smiled when the 2012 Supreme Court ruling in  Miller v. Alabama  came out, which held that mandatory life sentences without parole for children violated the Eighth Amendment’s prohibition against cruel and unusual punishment. In 2013, I was delighted when Attorney General Eric Holder announced his  Smart on Crime  policies, focusing federal prosecutions on large-scale drug traffickers rather than bit players. The following year, I applauded President Obama’s executive  clemency initiative  to provide relief for many people serving inordinately lengthy mandatory-minimum sentences. Despite its failure to become law, I celebrated the  Sentencing Reform and Corrections Act  of 2015, a carefully negotiated bipartisan bill passed out of the Senate Judiciary Committee in 2015; a few years later some of its provisions were incorporated as part of the 2018  First Step Act . All of these reforms would have been unthinkable when I first embarked on criminal legal system reform.

But all of this is not enough. We have experienced nearly five decades of destructive mass incarceration. There must be an end to the racist policies and severe sentences the War on Drugs brought us. We must not be content with piecemeal reform and baby-step progress.

Indeed, rather than steps, it is time for leaps and bounds. End all mandatory minimum sentences and invest in a health-centered approach to substance use disorders. Demand a second-look process with the presumption of release for those serving life-without-parole drug sentences. Make sentences retroactive where laws have changed. Support categorical clemencies to rectify past injustices.

It is time for bold action. We must not be satisfied with the norm, but work toward institutionalizing the demand for a standard of decency that values transformative change.

Nkechi Taifa is president of The Taifa Group LLC, convener of the Justice Roundtable, and author of the memoir,  Black Power, Black Lawyer: My Audacious Quest for Justice.

Related Issues:

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U.S. sentencing practices seem especially extreme when compared with countries like Canada, Germany, and the Netherlands.

Treating All Kids as Kids

Persistent and longstanding racism has fueled harsher treatment of young Black people in the justice system.

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Introduction

• Published: November 2021
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Over the past fifty years, the United States government has spent over a trillion dollars fighting a “War on Drugs.” This massive budgetary expenditure and concomitant commitment to a fiercely punitive treatment of illegal drug users and sellers represents a major inflection point in Americans’ much longer campaign against the distribution and use of cocaine, cannabis, heroin, and a number of other targeted intoxicants. As this collection demonstrates, the scope, strategy, and tactics of that extraordinarily costly and punitive war have changed over time.

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What We Got Wrong in the War on Drugs

17 University of Saint Thomas Law Journal 968 (2022)

U of St. Thomas (Minnesota) Legal Studies Research Paper No. 20-16

19 Pages Posted: 26 Aug 2020

Mark William Osler

University of St. Thomas - School of Law (Minnesota)

Date Written: 2020

The War on Drugs is effectively over. Drugs won. This essay addresses some of the mistakes we made in that futile effort. Allowing racism to motivate action and impede reform was a primary error. So was failing to understand that narcotics crime is simply different than other types of criminalized behavior in several fundamental ways. In whole, we largely addressed the narcotics trade as a moral failing rather than a market—and never got around to recognizing the size and shape of that market or to using market forces to control it. Ronald Reagan compared the War on Drugs to the Battle of Verdun, and he was right: fortunes were spent, many lives were lost, and nothing really changed.

Keywords: Narcotics, War on Drugs, Drug law, Sentencing, Narcotics demand

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University of st. thomas - school of law (minnesota) ( email ).

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