“Imagine you are Emma Faye Stewart, a thirty-year-old, single African American mother of two who was arrested as part of a drug sweep… You are innocent… Your court-appointed attorney urges you to plead guilty… You refuse, steadfastly proclaiming your innocence. Finally, after almost a month in jail, you decide to plead guilty so you can return home to your children. Unwilling to risk a trial and years of imprisonment, you are sentenced to ten years probation and ordered to pay $1,000 in fines, as well as court and probation costs. You are also branded a drug felon. You are no longer eligible for food stamps; you may be discriminated against in employment; you cannot vote for at least twelve years; and you are about to be evicted from public housing. Once homeless, your children will be taken from you and put in foster care. A judge eventually dismisses all cases against the defendants who did not plead guilty… The judge finds that the entire sweep was based on the testimony of a single informant who lied to the prosecution. You, however, are still a drug felon, homeless…” – From the book, “
The New Jim Crow – Mass Incarceration in the Age of Colorblindness”, by Michelle Alexander, describing one of the many millions of casualties of the U.S. “War on Drugs”.
The title of Michelle Alexander’s book derives from her argument that our “War on Drugs” primarily represents a backlash against the success of the Civil Rights movement. When slavery ended with the Civil War, it was followed by about ten years of Reconstruction, during which attempts were made to integrate our former slaves into White society. After Reconstruction ended, White Supremacists began to take their revenge, through such means as the Ku Klux Klan and a series of repressive laws that came to be known as
“Jim Crow” laws. The “War on Drugs” and the massive incarceration of black men associated with it has been their answer to the success of the Civil Rights Movement. No longer legally able to keep black people “in their place” through an
explicitly racist system, the War on Drugs makes use of racially neutral language to hide its racist purposes.
The “War on Drugs” was
officially kicked off by President Richard Nixon in 1971, though he’d been using related rhetoric for several years as part of his “
Southern Strategy” for winning southern support for his presidential bids by appealing to southern racist sentiments. Under the Ronald Reagan presidency there was a
massive intensification of the “War on Drugs”. With that, it became much more effective at incarcerating black people – though it continued to be ineffective in reducing drug use.
Consequently, between 1980 and 2000, the
U.S. prison population increased from about 300,000 to over 2,000,000, so that the United States now has by far
the highest prison rate of any nation in the world – 751 persons in prison per 100,000 population in 2008. The
incarceration rate for drug offenses increased at an even higher rate during this period of time – from about 20,000 in 1980 to about 450,000 by 2000 (See chart on page 11). But the role of the “War on Drugs” in increasing the overall incarceration rate appears misleadingly low from these figures: Concurrently there has been a massive increase in incarceration for parole violations, which is almost entirely due to the “War on Drugs”. In 1980, only 17% of prison admissions in the U.S. were due to parole violations. By the onset of the 21st Century,
34% of prison admissions were due to parole violations. Under the rules of the “War on Drugs”, people can be sent to prison for such parole violations as missing an appointment with one’s parole officer or failing to maintain employment – despite the extraordinary difficulty of maintaining employment when one is required to admit that one is a felon on all employment applications.
RACISM AS A PRIMARY COMPONENT OF THE “WAR ON DRUGS”Racism has long permeated the U.S. criminal justice system.
A landmark study on the subject by David Baldus showed that Georgia defendants were much more likely to receive the death penalty for murder when the defendant was black or the victim was white, after controlling for numerous potentially confounding variables. The study showed that this finding could be largely explained by the actions of Georgia prosecutors: They sought the death penalty in 70% of cases when the defendant was black and the victim was white, but only in 19% of cases when the defendant was white and the victim was black. Nevertheless, when this evidence was used in the defense of a black man accused of murder in Georgia, in the
U.S. Supreme Court case McCleskey v. Kemp, the Supreme Court rejected the defendant’s argument, saying that only proof that racial discrimination was involved in that particular case could be used to show unequal treatment before the law and thereby overturn McKleskey’s death sentence.
A
study by the U.S. Justice Department showed that racial bias appears to be present along every step of the criminal justice system: Blacks constitute only 16% of all youth in the U.S., yet they account for 28% of juvenile arrests, 35% of youth waived to adult criminal court, and 58% of youths admitted to adult prison.
Racial discrimination in the War on DrugsNot only has the “War on Drugs” proven to be no exception to the racial discrimination found elsewhere in our criminal just department, but it has been shown to be an especially egregious example of it. The “War on Drugs” is tailor-made for racial discrimination. This derives from the fact that there is much more drug usage in the United States than could ever possibly be investigated, so police and prosecutors must prioritize where and whom to investigate. Because court decisions have repeatedly allowed them virtually unlimited discretion in choosing where and whom to investigate, racial discrimination has been given virtually free reign.
Consequently, while (as noted above) the
overall increase in prison population of the United States has increased about 7- or 8-fold since 1980, prison admissions for blacks have
increased 26-fold since 1983. Furthermore,
blacks constitute 80-90% of all drug offenders sent to prison in seven states, and in 15 states black men are admitted to prison on drug charges at 20-57 times the rate of white men.
Many or most Americans, including even those who do not consider themselves racially prejudiced or who are in fact
not inherently racially prejudiced, would counter these statistics by suggesting that they may simply reflect a very high rate of drug-related crimes among black men. Indeed, the Reagan administration did its very best to foster such stereotypes by
launching an aggressive media campaign (See page 62) to sensationalize the epidemic of crack-cocaine use in inner city ghettos.
But the truth of the matter is that neither illegal drug use nor drug trafficking is more frequent among black than white men. Alexander discusses a wealth of research to make that point, and in fact show that drug trafficking is
more frequent among whites. One good example that makes the case that racial discrimination against blacks is unrelated to a propensity for crime was
a study of New Jersey Turnpike drivers. While only 15% of the drivers were black, 42% of all stops by police that involved drug searches were conducted on black drivers, and 73% of arrests were of black drivers, despite the fact that blacks and whites demonstrated equal rates of traffic violations. While police stops based on radar occurred equally among black and white drivers, discretionary stops were made much more frequently on black drivers. Nevertheless, whites were almost twice as likely to be found to be carrying illegal drugs.
The pervasiveness of racial discrimination in the war on drugs was vividly described by a law student who rode around with Chicago police as part of her training (quoted in Alexander’s book):
Each time we drove into a public housing project and stopped the car, every young black man in the area would almost reflexively place his hands up against the car and spread his legs to be searched.
Why is racism such a large component of the “War on Drugs”?Alexander devotes a good deal of space to discussing why racism is so prevalent in the “War on Drugs”. She notes that law enforcement has always been primarily the responsibility of state and local officials, not the federal government, and that prior to the federal push for the “War on Drugs”, states and local law enforcement personnel exhibited little or no interest in cracking down on drug use or sales. They had much higher priorities – such as violent crime.
So how did the federal government get them to go along? There are two major sub-parts to that question: 1) How did the federal government get state and local law enforcement to aggressively prosecute the “War on Drugs”; and 2) How did they get state and local law enforcement to especially target racial minorities? I’ll address the second question here, and the first question in the next section of this post.
I mentioned above that the Reagan administration conducted an aggressive media propaganda campaign to demonize and stereotype the drug problem as being primarily a black problem. When that is added to our legacy of black slavery and the Jim Crow era, and the virulent stereotyping used in our country to justify treating black people as sub-human, we have a good part of the explanation. Alexander describes numerous studies that document pervasive racism against black people in American culture, even among black people themselves. For example, a study titled “
Prime Suspects: The Influence of Local Television News on the Viewing Public” demonstrated the success of television news in implanting negative racial stereotypes regarding crime in even the minds of people who consider themselves non-racially prejudiced. How much racial prejudice among Americans is due to our long legacy of atrocities against black people, and how much is due to more recent efforts of the Nixon and Reagan presidential administrations (and to a lesser extent some others) to stereotype black people is besides the point.
But given the federal pressures to prosecute the “War on Drugs”, combined with the wide discretion that police and prosecutors are given regarding where and whom to prosecute, there is perhaps an even more important reason for the rampant targeting of black people in this “War”: Black people are usually far more vulnerable than white people. Politically speaking, given the aggressive and slimy methods that are used to prosecute this largely victimless crime, the drug war simply would not be tolerated among affluent white populations if they were targeted any more than they currently are. But poor black people simply don’t have the means to fight back. They often can’t hire decent lawyers, and they don’t have much political clout. Law enforcement agencies for the most part wouldn’t dare use the methods they do against poor black people against affluent white people. If they did, the “War on Drugs” would be very short-lived.
FEDERAL TOOLS USED TO PROPAGATE THE “WAR ON DRUGS” As I noted above, Ronald Reagan (and Nixon before him) had some problems regarding his plans for his “War on Drugs”: Crime control is the responsibility of local and state officials, and those officials generally saw little or no need for a war on drugs. So the federal government, especially under Reagan, used two main tools to propagate the “War” other than the media propaganda that I already noted: 1) Financial incentives; and 2) draconian federal laws.
Perverse financial incentivesFirst, the Reagan administration developed an aggressive strategy of financial incentives. Great amounts of cash and equipment were held out to state and local law enforcement agencies if they would help with the “War on Drugs”. Here is part of Alexander’s discussion on that issue:
Huge
cash grants were made to those law enforcement agencies that were willing to make drug-law enforcement a top priority… This federal grant money has resulted in the proliferation of narcotics task forces… Other forms of valuable aid have been offered as well… free training, intelligence, and technical support… The Pentagon has given away military intelligence and millions of dollars in firepower to state and local agencies willing to make the rhetorical war a literal one…
By the late 1990s, the overwhelming majority of state and local police forces in the country had availed themselves of the newly available resources and added a significant military component to buttress their drug-war operations.
As if that wasn’t bad enough, the Reagan administration and Congress then granted state and local law enforcement the right to keep large portions of seized assets for themselves. Consequently, in 1988-1992 state and local “drug task forces”
seized over $1 billion in assets as a result of drug war activities.
Draconian punishmentsDraconian penalties for drug crimes, such as harsh mandatory minimum sentences and (later)
three strike laws (which may carry life imprisonment penalties for a third felony conviction) have provided a valuable tool to those who wish to repress minority populations. Alexander describes the history of mandatory minimum sentences:
In 1986, Congress passed the
Anti-Drug Abuse Act, which established extremely long mandatory minimum prison terms for low-level drug dealing and possession of crack cocaine. The typical mandatory sentence for a first-time drug offense in federal court is five or ten years. By contrast, in other developed countries around the world, a first-time drug offense would merit no more than six months in jail, if jail time is imposed at all.
The value of this to the Drug War hawks is not simply the long prison sentences that come with these laws. Even more important is the use of the
threat of these draconian punishments to elicit confessions from innocent people. Alexander explains:
The pressure to plead guilty to crimes has increased exponentially since the advent of the War on Drugs… Now, simply by charging someone with an offense carrying a mandatory sentence of 10 to fifteen years or life, prosecutors are able to force people to plead guilty… Prosecutors admit that they routinely charge people with crimes for which they technically have probably cause but which they seriously doubt they could ever win in court.
THE TRAGIC CONSEQUENCES OF THE “WAR ON DRUGS”Many of the tragic consequences of the “War on Drugs” should be obvious from what has already been discussed in this post. Shouldn’t any nation – especially one that prides itself on being “The land of the free” – be ashamed of having the highest incarceration rate of any nation in the world? The fact that the “War on Drugs” is permeated with racial discrimination and requires an intricate web of propaganda and lies in order to make it politically viable makes it all the worse. The toll of human misery is astounding: Productive lives lost, lives lived in fear, families broken up…
Then there are the reduced resources left over for much more important activities, such as combating violent crime. And with all the emphasis on fighting the “War on Drugs” with the incarceration approach, funding was drastically cut for treatment and prevention programs, which are considered by experts to be much more effective means of reducing illicit drug use.
And then there are the following consequences of this “War”:
The use of excessive forceWith all the federal pressure to get “results”, along with the distribution of military equipment by the federal government to local law enforcement officials, not to mention the inherent military zeal of some police officers, the temptation to use excessive, disproportionate force has proven to be to difficult to resist. Alexander describes this situation:
Until the drug war, {
SWAT teams} were used rarely, primarily for extraordinary emergency situations, such as hostage takings, hijackings… That changed in the 1980s, when local law enforcement agencies suddenly had access to cash and military equipment specifically for the purpose of conducing drug raids…
In countless situations in which police could easily have arrested someone or conducted a search without a military-style raid, police blast into people’s homes, typically in the middle of the night, throwing grenades, shouting and pointing guns and rifles at anyone inside, often including young children. In recent years, dozens of people have been killed by police in the course of these raids, including elderly grandparents and those who are completely innocent of any crime.
Corruption of local law enforcement agenciesProviding financial incentives to law enforcement agencies to punish people should be viewed as the perverse nonsense that it is. The legitimate purpose of a criminal justice system is to protect citizens – not to meet arbitrary arrest quotas. Anyone who couldn’t foresee the potential for corruption inherent in such a strategy doesn’t belong in government. Especially rife for the potential for corruption were the
seizure forfeiture laws. Alexander describes these laws:
Suddenly, police departments were capable of increasing the size of their budgets, quite substantially, simply by taking the cash, cars and homes of people suspected of drug use or sales… Property or cash could be seized based on mere suspicion of illegal drug activity, and the seizure could occur without notice or hearing, upon ex parte showing of mere probable cause to believe that the property had been “involved” in a crime. The probable cause showing could be based on nothing more than hearsay, innuendo, or even paid self-serving testimony… Neither the owner of the property nor anyone else need be charged with a crime…
Largely as a result of these laws and other financial incentives, the extent to which some law enforcement agencies will go to obtain arrests and convictions is often despicable. Alexander notes that the practice of planting drugs on people in order to assure convictions has become commonplace. Furthermore, these laws work to make life miserable for innocent people and low-level drug users, while allowing the drug king-pins to go free:
Drug-war forfeiture laws are frequently used to allow those with assets to buy their freedom, while drug users and small-time dealers with few assets to trade are subjected to lengthy prison terms…
And then there is the use of paid snitches, who should never be a part of any just criminal justice system:
The number of
snitches in drug cases has soared in recent years, partly because government has tempted people to “cooperate” with law enforcement by offering cash… but also because ratting out co-defendants, friends, family, or acquaintances is often the only way to avoid a lengthy mandatory minimum sentence… The “assistance” provided by snitches is
notoriously unreliable, as studies have documented countless informants who have fabricated stories about drug-related and other criminal activity in exchange for money or leniency in their pending criminal cases…
Unfair sentencesThe draconian sentences incurred under mandatory minimum and three strike laws are often way out of proportion to the “crimes” committed, and they have rightly been the target of attacks in our court system under our
8th Amendment (which bans cruel and unusual punishment) and the equal protection clause of our
14th Amendment.
In
Harmelin v. Michigan,
the US Supreme Court upheld a life imprisonment sentence for a defendant with no prior convictions for the attempted sale of 672 grams of crack cocaine. Alexander explains the absurdity of this ruling:
This ruling was remarkable given that, prior to the Drug Reform Act of 1986, the longest sentence Congress had ever imposed for possession of any drug in any amount was one year. A life sentence for a first time drug offense is unheard of in the rest of the developed world.
In
Lockyer v. Andrade, US Supreme Court Justice Sandra Day O’Connor
concluded that a punishment of 25 years to life for stealing 3 golf clubs from a pro shop “are not grossly disproportionate to the offense and therefore do not violate the 8th Amendment”. Really? I wonder what it would take for her to consider a penalty disproportionate to the crime.
Alexander discusses the fact that many judges publicly commented upon how unfair they consider these draconian punishments with no allowance for leeway or mitigating circumstance:
Some federal judges, including some conservative judges, have quit in protest of federal drug laws and sentencing guidelines… Judge Jack Weinstein publicly refused to take any more drug cases, describing “a sense of depression about much of the cruelty I have been a party to in connection with the War on Drugs”.
Potential for harassmentThe potential for harassment is rife in a system such as this, and harassment is frequently used. I’ve noted the seizure forfeiture laws, which don’t even require that a person be found guilty of any crime as a condition of losing his property.
Alexander notes that our 4th Amendment protection against unreasonable searches and seizures has been virtually ruled by our courts not to apply at all to “War on Drugs” cases. Consequently, police routinely stop and search (mostly black) people on the basis of the flimsiest of rationalizations, tearing apart cars or homes, often with no reparations for damages or even apologies, even when (as is the case in the vast majority of instances) no drug is found.
And our
Supreme Court ruled in
Atwater v. City of Lago Vista that police may arrest and jail motorists for minor traffic violations even when the statutory penalty for the traffic violation doesn’t include jail time.
Inducing the innocent to plead guiltyI briefly noted above that the rules of the “War on Drugs”, especially the draconian sentences that it often mandates, allow prosecutors to use the threat of draconian punishment as a bargaining chip in efforts to persuade innocent people to plead guilty to lesser offenses. Alexander comments on this outrage:
Never before in our history have such an extraordinary number of people felt compelled to plead guilty, even if they are innocent, simply because the punishment for the minor, nonviolent offense with which they have been charged is so unbelievably severe. When prosecutors offer “only” three years in prison when the penalties defendants could receive if they took their case to trial would be … life imprisonment, only extremely courageous (or foolish) defendants turn the offer down… Sentences for minor drug crimes are higher than many countries impose on convicted murderers. This is the way the roundup works, and it works this way in virtually every major city in the United States.
In 2004, the American Bar Association
released a report on this outrageous ploy, concluding:
All too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights or what is occurring… The fundamental right to a lawyer that Americans assume applies to everyone accused of criminal conduct effectively does not exist in practice for countless people across the United States.
A FINAL WORDThere are many Americans who have known for a long time that the “War on Drugs” has been a dismal failure. That is, it has been a dismal failure if one assumes that its purpose is to reduce drug use in the United States.
But the dirty little secret is that for the purposes for which the “War on Drugs” was designed, it has been a resounding success: It has reversed many of the gains of the Civil Rights Movement, which the White Supremacist types so strongly fought, and it has removed so many black people from the voter rolls that that the current electorate is way to the right of what it otherwise would be. Indeed, in the months prior to the 2000 presidential election, tens of thousands of black voters who had no criminal history at all were
removed from the Florida voter rolls – simply on the basis that they were a close computer match to a black person in Florida with a criminal record. That ploy enabled George W. Bush to overcome what would otherwise have been a deficit of tens of thousands of votes in Florida, to make the 2000 Florida election close enough to enable our Supreme Court to hand him a victory in Florida and thereby the presidency. In 2004
similar activities in Ohio enabled Bush to “win” re-election to the presidency.
The “War on Drugs” is a sham and a disgrace to our country. It is time to end it. And on that note I’ll end this post with a quote from Michelle Alexander’s book:
Historians will likely wonder how we could describe the new caste system as a system of crime control, when it is difficult to imagine a system better designed to create – rather than prevent – crime….
As a society, our decision to heap shame and contempt upon those who struggle and fail in a system designed to keep them locked up and locked out says far more about ourselves than it does about them.