Race and the War on Drugs

Motivation for the War on Drugs

The War on Drugs was declared by U.S. President Richard M. Nixon during a Special Message to Congress delivered on June 17, 1971, in response to increasing rates of death due to narcotics. During this announcement, Nixon distinguished between fighting the war on two fronts - the supply front and the demand front. To address the “supply” front, Nixon requested funding to train narcotics officers internationally, and proposed various legislation with the intent of disrupting illegal drug manufacturers. The "demand" front referred to enforcement and rehabilitation. To that end, Nixon proposed the creation of the Special Action Office of Drug Abuse Prevention, with the goal of coordinating various agencies in addressing demand for illegal drugs. He also requested an additional $105 million for treatment and rehabilitation programs, and additional funding to increase the size and technological capability of the Bureau of Narcotics and Dangerous Drugs.

Alternative Motivation

A former Nixon aide has suggested that the War on Drugs was racially and politically motivated.

The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I'm saying? We knew we couldn't make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing 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 on the evening news. Did we know we were lying about the drugs? Of course we did.

However, because he may have been disillusioned with the Nixon administration following the Watergate scandal, the validity of Ehrlichman’s claim is disputed.

Controversial Policies

A number of policies introduced during the War on Drugs have been singled out as particularly racially disproportionate.

Mandatory Minimums

The Anti-Drug Abuse Act of 1986 established a 100:1 sentencing disparity for the possession of crack vs. powder cocaine. Whereas possession of 500 grams of powder cocaine triggered a 5-year mandatory minimum sentence, possession of 5 grams of crack cocaine triggered the same mandatory minimum penalty. In addition, the Anti-Drug Abuse Act of 1988 established a 1-year mandatory minimum penalty for simple possession of crack cocaine, making crack cocaine the only controlled substance for which a first possession offense triggered a mandatory minimum penalty.

A 1992 study found that, as a result of mandatory minimum sentencing, blacks and Hispanics received more severe sentences than their white counterparts from 1984 through 1990.

In 1995, the United States Sentencing Commission delivered a report to Congress concluding that, because 80% of crack offenders were black, the 100:1 disparity disproportionately affected minorities. The Commission recommended that the crack-to-powder sentencing ratio be amended, and that other sentencing guidelines be re-evaluated. These recommendations were rejected by Congress. By contrast, certain authors have pointed out that the Congressional Black Caucus backed the Anti-Drug Abuse Act of 1986, implying that that the law could not be racist.

In 2010, Congress passed the Fair Sentencing Act, which reduced the sentencing disparity between crack and powder cocaine from 100:1 to 18:1. The mandatory minimum penalty was amended to take effect for possession of crack cocaine in excess of 28 grams.

Mandatory minimum penalties have been criticized for failing to apply uniformly to all cases of illegal behavior.

Stop-and-Frisk Searches

The Supreme Court ruled in Terry v. Ohio that a "stop-and-frisk" search does not violate the Fourth Amendment, so long as the officer executing the search bears a “reasonable suspicion” that the person being searched has committed, or is about to commit, a crime. As a result, "stop-and-frisk" searches became much more common during the War on Drugs, and were generally conducted in minority communities.

"Stop-and-frisk" searches have been criticized for being disproportionately carried out against minorities as a result of racial bias, though empirical literature on this count is inconclusive. Certain authors have found that, even after controlling for location and crime participation rates, African-Americans and Hispanics are stopped more frequently than whites. Others have found that no bias exists, on average, in an officer's decision to stop a citizen, though bias may exist in an officer's decision to frisk a citizen.

"Stop-and-frisk searches in New York City have declined significantly since 2011.

Stops and Searches

A 2015 report conducted by the Department of Justice found that blacks in Ferguson, Missouri were over twice as likely to be searched during vehicle stops, despite being found in possession of contraband 26% less often than white drivers.

A 2016 report conducted the San Francisco District Attorney's Office concluded that racial disparities exist regarding stops, searches, and arrests by the San Francisco Police Department, and that these disparities were especially salient for the black population. Blacks made up almost 42% of all non-consensual searches after a stop, though they accounted for less than 15 percent of all stops in 2015. Blacks held the lowest search "hit rate", meaning that contraband was least likely to be found during a search.

A 2016 Chicago Police Accountability Task Force report found that black and Hispanic drivers were searched by the Chicago Police more than four times more frequently than white drivers, despite white drivers being found with contraband twice as often as black and Hispanic drivers.

Arrests

A 1995 Bureau of Justice Statistics report found that from 1991 to 1993, 16% of those who sold drugs were black, but 49% of those arrested for doing so were black.

A 2006 study conlcuded that blacks were significantly over-represented among those arrested for drug delivery offenses in Seattle. The same study found that this was a result of law enforcement focusing on crack offenders, on outdoor venues, and dedicating resources to racially heterogeneous neighborhoods.

A 2010 study found little difference across races with regards to the rates of adolescent drug dealing. A 2012 study found that African American youth were less likely than white youth to use or sell drugs, but more likely to be arrested for doing so.

A 2013 study by the American Civil Liberties Union determined that a black person in the United States was 3.73 times more likely to be arrested for marijuana possession than a white person, even though both races have similar rates of marijuana use. Iowa had the highest racial disparity of the fifty states. Black people in Iowa were arrested for marijuana possession at a rate 8.4 times higher than white people. One factor that may explain the difference in arrest rates between whites and blacks is that blacks are more likely than whites to buy marijuana outdoors, from a stranger, and away from their homes.

A 2015 study concluded that minorities have been disproportionately arrested for drug offenses, and that this difference "cannot be explained by differences in drug offending, non-drug offending, or residing in the kinds of neighborhoods likely to have heavy police emphasis on drug offending."

Sentencing

In 1998, there were wide racial disparities in arrests, prosecutions, sentencing and deaths. African-Americans, who only comprised 13% of regular drug users, made up for 35% of drug arrests, 55% of convictions, and 74% of people sent to prison for drug possession crimes. Nationwide African-Americans were sent to state prisons for drug offenses 13 times more often than white men.

Crime statistics show that in 1999 in the United States blacks were far more likely to be targeted by law enforcement for drug crimes, and received much stiffer penalties and sentences than whites. A 2000 study found that the disproportionality of black drug offenders in Pennsylvania prisons was unexplained by higher arrest rates, suggesting the possibility of operative discrimination in sentencing.

A 2008 paper stated that drug use rates among Blacks (7.4%) were comparable to those among Whites (7.2%), meaning that, since there are far more White Americans than Black Americans, 72% of illegal drug users in America are white, while only 15% are black.

According to Michelle Alexander, the author of The New Jim Crow and a professor of law at Stanford Law School, even though drug trading is done at similar rates all over the U.S., most people arrested for it are colored. Together, African American and Hispanics comprised 58% of all prisoners in 2008, even though African Americans and Hispanics make up approximately one quarter of the US population The majority of prisoners are arrested for drug related crime, and in at least 15 states, 3/4 of them are black or Latino people.

A 2012 report by the United States Sentencing Commission found that drug sentences for black men were 13.1 percent longer than drug sentences for white men between 2007 and 2009.

Rehabilitation

Professor Cathy Schnieder of International Service at American University notes that in 1989, African Americans, representing 12-15 percent of all drug use in the United States, made up 41 percent of all arrests. That is a noted increase from 38 percent in 1988. Whites were 47 percent of those in state-funded treatment centers and made up less than 10 percent of those committed to prison.

Legal History

Some have suggested that certain Supreme Court rulings related to the War on Drugs have reinforced racially disproportionate treatment.

In United States v. Armstrong (1996), the Supreme Court heard the case of Armstrong, a black man charged with conspiring to possess and distribute more than 50 grams of crack cocaine. Facing the District Court, Armstrong claimed that he was singled out for prosecution due to his race and filed a motion for discovery. The District Court granted the motion, and required the government to provide statistics from the prior 3 year on similar crimes, dismissing Armstrong's case when the government refused.

The government appealed the decision, and the U.S. Court of Appeals affirmed the dismissal, holding that defendants in selective-prosecution claims need not demonstrate that the government failed to prosecute similarly situated individuals. The case was then sent to the Supreme Court, which reversed the decision and held that defendants must show that the government failed to prosecute similarly situated individuals.

In United States v. Bass (2002), the Supreme Court heard a similar case. John Bass was charged with two counts of homicide, and the government sought the death penalty. Bass filed for dismissal, along with a discovery request alleging that death sentences are racially motivated. When the government refused to comply with the discovery request, the District Court dismissed the death penalty notice. Upon appeal, the U.S. Court of Appeals affirmed the dismissal, and the case was sent to the Supreme Court.

Reversing the decision, the Supreme Court ruled that a defendant in a selective prosecution case must make a "credible showing" of evidence that the prosecution policy in question was intentionally discriminatory. The court ruled that Bass did not do so because he failed to show that similarly situated individuals of different races were treated differently. Specifically, the Court rejected Bass' use of national statistics, holding that they were not representative of similarly situated individuals.

Both cases have been criticized for perpetuating racially motivated legal standards. It has been suggested that the current standard is impossible to meet for selective prosecution claims, because the relevant data may not exist, and if it does, because the prosecution may have sole access to it.

Negative Health Effects

Felony drug convictions often lead to circumstances that carry negative health-related consequences. Employment opportunities (and associated healthcare benefits), access to public housing and food stamps, and financial support for higher education are all jeopardized, if not eliminated, as a result of such a conviction. In addition, a felony distribution charge often precludes a convict from benefiting from most healthcare programs that receive federal funding.

Collateral Consequences

Some authors have suggested that the collateral consequences of a criminal conviction are more serious than the legal penalties. In many cases, statutes do not require that convicts are informed of these consequences. Many felons cannot be employed by the federal government or work in government jobs, as they do not meet the standards to gain security clearance. Felons convicted of distributing or selling drugs may not enlist in the military.

Certain states are financially incentivized to exclude criminals from access to public housing. All states receive less federal highway funding if they fail to revoke or suspend driver's licenses of drug-related felons.

Collateral consequences, and felon disenfranchisement in particular, have historically been at least partially racially motivated.

African-American Communities

The War on Drugs has incarcerated high numbers of African-Americans. However, the damage has compounded beyond individuals to affect African-American communities as a whole.

African-American children are over-represented in juvenile hall and family court cases, a trend that began during the War on Drugs. From 1895 to 1999, admissions of blacks under the age of 18 increased by 68%. Some authors posit that this over-representation is because minority juveniles commit crime more often, and commit more serious crimes.

A compounding factor is often the imprisonment of a father. Boys with imprisoned fathers are significantly less likely to develop the skills necessary for success in early education. In addition, African-American youth often turn to gangs to generate income for their families, oftentimes more more effectively than at a minimum wage or entry level job. As a result, many black youths drop out of school, are subsequently tried for drug-related crime, and acquire AIDS at disparate levels.

In addition, the high incarceration rate has led to the juvenile justice system and family courts to use race as a negative heuristic in trials, leading to a reinforcing effect: as more African-Americans are incarcerated, the more the heuristic is enforced in the eyes of the courts. This contributes to yet higher imprisonment rates among African-American children.

High numbers of African American arrests and charges of possession show that although the majority of drug users in the United States are white, blacks are the largest group being targeted as the root of the problem. Harboring these emotions can lead to a lack of will to contact the police in case of an emergency by members of African-American communities, ultimately leaving many people unprotected. Disproportionate arrests in African-American communities for drug-related offenses has not only spread fear but also perpetuated a deep distrust for government and what some call racist drug enforcement policy.

Women of Color

The War on Drugs also plays a negative role in the lives of women of color. The number of black women imprisoned in the United States increased at a rate more than twice that of black men, over 800% from 1986 to 1991. During thast same period, the percentage of females incarcerated for drug-related offenses more than doubled. In 1989, black and white women had similar levels of drug use during pregnancy. In spite of this, black women were 10 times as likely as white women to be reported to a child welfare agency for prenatal drug use. In 1997, of women in state prisons for drug-related crimes, forty-four percent were Hispanic, thirty-nine percent were black, and twenty-three percent were white, quite different from the racial make up shown in percentages of the United States as a whole. Statistics in England, Wales, and Canada are similar. Women of color who are implicated in drug crimes are “generally poor, uneducated, and unskilled; have impaired mental and physical health; are victims of physical and sexual abuse and mental cruelty; are single mothers with children; lack familial support; often have no prior convictions; and are convicted for a small quantity of drugs”.

Additionally, these women typically have an economic attachment to, or fear of, male drug traffickers, creating a power paradigm that sometimes forces their involvement in drug-related crimes. Though there are programs to help them, women of color are usually unable to take advantage of social welfare institutions in America due to regulations. For example, women’s access to methadone, which suppresses cravings for drugs such as heroin, is restricted by state clinics that set appointment times for women to receive their treatment. If they miss their appointment, (which is likely: drug-addicted women may not have access to transportation and lead chaotic lives), they are denied medical care critical to their recovery. Additionally, while women of color are offered jobs as a form of government support, these jobs often do not have childcare, rendering the job impractical for mothers, who cannot leave their children at home alone.

However, with respect to mandatory minimum sentencing, female offenders receive relief almost 20% more often than male offenders. In addition, female offenders, on average, receive lighter sentences than those who commit similar offenses.