By Zach Oaster
Among the policies introduced to the joint session of Congress this week by President Trump was a call for increased funding for anti-drug law enforcement. In a government that has been a world leader in waging the war against drugs, the United States Congress, alongside its other federal, state, and local bodies, has presided over one of the longest running anti-drug policy enforcement endeavors on record. As with the war in Iraq, it is plausible to the American public that Congress was misled about the intentions of the U.S. war on drugs. But, as we now know, the evidence leading us into the war in Iraq was false -- and misguided our choices. Similarly, we can no longer claim ignorance of the intents or outcomes of the war on drugs. The U.S. war on drugs was a war on black citizens. We know this both from data collected and analyzed from the outcomes of said war, but also from closed door policy statements made in those formative years by advisors who drafted the legislation. From Nixon’s chief domestic policymaker John Ehrlichman to Reagan and Bush adviser Lee Atwater, we now know firsthand that racialized strategies were baked into the war on drugs. Of concern to policymakers should be both the rebuttal of these previous claims that the drug war was race neutral, but also that furtherment of such policies could be considered acts of state crime and in violation of international human rights law. This article briefly surveys the impact of these past drug war policies on people of color in the United States, and offers further analysis as to why this should be of concern to Congress in the future consideration of any drug-related punitive legislation – such as increased enforcement, arrests, or harsher sentences for drug crimes.
First, it is important to dispel the notion that the war on drugs was race neutral. In its earliest incarnations in the Nixon administration, the war on drugs was advanced by Nixon’s domestic policy chief John Ehrlichman who was quoted in the April, 2016 edition of Harper’s Magazine, and highlighted in the recent documentary “13th” (DuVernay, 2016), as saying that Nixon “had two enemies: the antiwar left and black people.” He goes on to account:
“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” (Goldstein, 2016).
It is now clear that the initial call for the war on drugs, made by President Nixon during his first term, was indeed a veiled means of punishing his perceived enemies and detractors by using the force of the police state.
In similar form, Lee Atwater was an aide to Presidents Reagan and George H.W. Bush and a longtime Republican Party adviser. In a 1981 interview, also offered in the documentary “13th” (DuVernay, 2016), Atwater explains the advent of dog whistle politics – a strategy that veils racialized policy and speech in race-neutral code language. He says:
“You start out in 1954 by saying, “Nigger, nigger, nigger.” By 1968 you can’t say “nigger” — that hurts you, backfires. So you say stuff like, uh, forced busing, states’ rights, and all that stuff, and you’re getting so abstract. Now, you’re talking about cutting taxes, and all these things you’re talking about are totally economic things and a byproduct of them is, blacks get hurt worse than whites.… “We want to cut this,” is much more abstract than even the busing thing, uh, and a hell of a lot more abstract than “Nigger, nigger”” (Goldstein, 2016).
Such coded language was used throughout the Reagan administration in the renewed war on drugs, and persists to this day in what many scholars call “colorblind ideology.” Bobo (2004) argues that racism is not over, rather it is simply expressed through a series of alternative color-blind narratives that appeal to dog whistle terms related to class, culture, or work-ethic. This is made explicit in the quote from Atwater, and persists in today’s civil society as a way that we talk about race without ever needing to explicitly mention race. This, however, does not negate the explicit effects of contemporary de facto white supremacy.
In her TEDxColumbus talk, Michelle Alexander (2013) offers that millions of poor people of color are in locked up in “cages… worse than animals.” But more, when they are released they are stripped of their constitutional civil rights due to being branded as a felon. She argues that this is a caste system. She argues here and in her book, The New Jim Crow (2010) that the U.S. justice system is a system of racial and social control rather than crime control. Young people of color are de facto segregated into crumbling, underfunded schools, and then ushered into “crisp new prisons” – a school to prison pipeline, and with it, a status that they will never escape. She argues that there are more black persons under correctional control today than slaves during the peak of chattel slavery. More black persons are disenfranchised from the vote now as felons than ever under overt racist systems of poll taxes and literacy tests. Half of all black men are now in this “lower caste” by law. Felons are denied public benefits such as food assistance, and when they try to return to society, they are denied jobs and housing due to the legality of discrimination against felons. Thus, this cyclical system keeps sending people of color back to prison with a recidivism rate over 70%. It is ridiculous to think that they have any other option when they cannot obtain a home, a job, or even food when they are in need.
Alexander then takes on the notion that mass incarceration is a result of crime. There were 300,000 people in U.S. prisons in the 1970s, and over 2 million today. During that same time, crime rates have fluctuated, and are now in fact very low. Despite this low, incarceration is still on the rise. The war on drugs and the get-tough movement (legislation requiring mandatory minimum sentences and three-strikes rules) account for two thirds of those federally incarcerated, and half of those incarcerated at the state level. All of this in the face of research that shows that people of color are no more likely than whites to sell or use drugs. In many cases, the research shows that white youth are more likely to use drugs.
Federal funding encourages law enforcement to go for the lowest-hanging fruit of drug crime, as that funding is predicated on maintaining high numbers of arrests, not eliminating the most violent or prolific offenders (Alexander, 2013). Police officers often can keep up to 80% of seized money and property, incentivizing them to keep the system going as long as possible, with yearly budgets now relying on maintaining high levels of engagement, seizure, and incarceration of people who are the least likely to have the social, economic, or political power to push back.
Given what was reviewed earlier with regard to the statements by Ehrlichman and Atwater, it is little surprise that Ghandnoosh (2015) agrees with Alexander’s analysis when stating that:
“Many ostensibly race-neutral policies and laws have a disparate racial impact. Police policies such as “broken windows” and stop, question, and frisk have disproportionately impacted young men of color. Prosecutorial policies, such as plea bargain guidelines that disadvantage blacks and Latinos compound these disparities, as do sentencing laws that dictate harsher punishments for crimes for which people of color are disproportionately arrested” (Ghandnoosh, 2015, p. 3).
Ghandnoosh explains that the traffic stop disparity between blacks and whites has decreased recently, but in most other measures black persons are treated more harshly – searched more often, contraband found more often, black and Hispanic defendants are treated more harshly by judges and prosecutors. Public defenders are underfunded, which means that people of color rarely receive a fair defense – often taking plea bargains that are not in their best interest (and disparate from those offered white defendants). Ghandnoosh also agrees with Alexander about the negative effects of the felon status on the ability for persons to reintegrate into society. “Because of their higher rates of incarceration and poverty, people of color are disproportionately affected by these policy choices” (Ghandnoosh, 2015, p. 4). Not only does Ghandnoosh explain that there are pockets where the racialized caste system is more prevalent, such as Ferguson, Missouri, it is also important to note that it is possible to predict where such disparate racialized communities exist and address these disparities. Therefore, racialized systems of oppression are not black boxes with mysterious and unknowable internal workings. Rather, they are relatively predictable systems that can be unraveled using methods set forth explicitly by researchers.
This caste system also has a significant effect on the interaction between police and people of color. Often daily encounters between black persons and police create an environment of cumulative distrust (Brunson, 2007; Ghandnoosh, 2015). This serves to further exacerbate the perception among officers and lawmakers that black persons are a troubled group needing the focus of law and order. However, this is a self-fulfilling prophecy. Authorities have long engaged in an exaggerated presence in black communities, resulting in disproportionate interactions and incarcerations of those same communities, and then when the blowback of such longstanding disparity becomes evident, and distrust reaches a fever pitch, lawmakers and police stand ready to blame the victim and increase those same punitive measures.
Such action would not only demonstrate a total ignorance of recent American criminal justice history, but also an act of state crime. Kauzlarich et al. (2001, p. 186) offers that “those accused of crimes are less likely to be treated sympathetically because their assigned master status solipsistically leads to a marginalization of their human worth.” Politicians have demonstrated little or no motivation to pass laws that take people of color’s claims of disproportionate effect and oppression seriously. Instead, politicians and those in the criminal justice community suggest that the system that is already in place is sufficient to address any and all injustices. Claims of bias and racism in the system are denied using the dog whistle rhetoric of colorblindness, despite evidence which denotes that, controlling for other factors, blackness is an indicator for a defendant’s likelihood of being treated more harshly by the system (Eberhardt, 2006). Consequently, “Victims of state crime must generally rely on the victimizer, an associated institution, or civil social movements for redress” (Kauzlarich, Matthews, & Miller, 2001, p. 186). The social typology that blacks are criminals assigns a master status through which the depiction, thus the national sympathetic outcry, and consequently the attention paid by politicians, all are stifled by the “marginalization of [people of color’s] human worth.”
Faust and Kauzlarich (2008) explore this phenomenon further in the context of the U.S. government and media response to Hurricane Katrina victims, but it is also relatable to the way that politicians engage in punitive domestic lawmaking -- formulating the criminal justice response to social problems like drug sale and use. The state crime encapsulated in the U.S. war on drugs could be classified as Domestic-International Governmental Crime, described by Kauzlarich et al. (2001, p. 177) as occurring “within a state’s geographic jurisdiction against international law or human rights.” In the case of Katrina, this was argued on the basis of the government’s inattention to institutional racism in the form of not heeding warnings that levies protecting the most racially segregated neighborhoods were insufficient – causing disproportionate death and damage to Black communities (Faust & Kauzlarich, 2008, p. 86-88). Given the contemporary outcome-based evidence offered lawmakers through the work of Michelle Alexander (2010) in “The New Jim Crow,” the analysis of Nunn (2002), and Ghandnoosh (2015) in The Sentencing Project’s document “Black Lives Matter: Eliminating Racial Inequality in the Criminal Justice System,” it becomes evident that any law made today inciting a new war on drugs would constitute a similar inattention to institutional racism.
In Faust and Kauzlarich’s hurricane example, damage can be directly blamed on a natural disaster, requiring a second-level of blameworthy harm analysis to find state actors accountable. In the advancement of any new drug war, such inattention to institutional racism would almost certainly lead to disproportionate death and damage to Black communities, but would be committed directly by state agents – police, judges, ATF agents, and more – with the direct knowledge that such policies target and unfairly persecute people of color. We have seen this with previous drug wars (Ghandnoosh, 2015; Nunn, 2002). It is difficult to conceive how any politician today could argue that such a renewed drug war would be race neutral, as even the critics of such policies so often (overly-graciously) concede to past racialized debacles.
And so, it comes into sharp focus that lawmakers should reconsider any movement toward a renewed war on drugs. The notion that law and order will be increased through intensified harshness – heightened enforcement, more arrests, and longer prison sentences – is marked by an absence of fact-based evidence. To the contrary, many researchers such as Michelle Alexander (2013) implore lawmakers to aim to go back to 1980s levels of incarceration. Such a move would require the release of four out of five currently incarcerated inmates. Such an influx of previously incarcerated individuals into society would force a reconsideration of the label of “criminal” and would require society to move toward a restoration of human dignity. This could be the beginning of a new human rights movement centered on meeting the needs of work, shelter, food, and education for all.
Even if this is too lofty a consideration for lawmakers to embrace in the short term, it cannot be overlooked that the current system of mass incarceration and over policing of people of color, linked inseparably from the drug wars of past decades, is revealed as a system deliberately designed to control and punish people of color. It is a system that has persisted in this mission and has succeeded to make the United States the world leader in correctional control – a status that is repugnant in a society that claims to value freedom, liberty, and democracy. Further, it is a system whose chief success has been to create economically dependent policing agencies, and prison management corporations. It has demanded the participation of job-dependent policymakers, willing to plunk their careers in the slot machine of race-to-the-bottom ‘hard on crime’ fantasies, in the hope that the payoff will outweigh the injudicious investment. All of these so-called ‘successes’ at the expense of the taxpayers’ dollars and citizens’ freedoms. It is a path that turns out to resemble acts of state crime rather than the intended crime control. Policymakers should heed this warning: the evidence is now well documented and we can no longer claim ignorance of the intent of the war on drugs. The U.S. war on drugs was a war on black citizens. It is time to openly acknowledge this racist system and proceed to dismantle it. It is certainly not a time to expand it.
Alexander, Michelle. (2010). The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York, NY: The New Press
Alexander, Michelle. (2013). The future of race in America: Michelle Alexander at TEDxColumbus. Retrieved from http://tedxtalks.ted.com/video/The-future-of-race-in-America-M
Barish, Howard (Producer), DuVernay, Ava (Director). (2016). 13th (Motion Picture). United States: Kandoo Films.
Bobo, Lawrence D. (2004). Laissez-Faire Racism, Racial Inequality, and the Role of the Social Sciences. In Charles A. Gallagher (5th Eds.), Rethinking the Color Line: Readings in Race and Ethnicity (148-157). New York, NY: McGraw-Hill.
Brunson, Rod K. (2007). “Police Don’t Like Black People”: African American young men’s accumulated police experiences. Criminology and Public Policy 6(1): 71-102.
Eberhardt, JenniferL., Davies, P.G., Purdie-Vaughns, Valerie, Johnson, Sheri Lynn. (2006). Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes. Psychological Science, 17(5): 383-386.
Faust, Kelly, Kauzlarich, David. (2008). Hurricane Katrina Victimization as a State Crime of Omission. Critical Criminology, 16(2): 85-103.
Ghandnoosh, Nazgol. (2015). Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System. The Sentencing Project. Retrieved from sentencingproject.org
Goldstein, Jessica. (2016). A scathing tour of the prison industrial complex in Ava DuVernay’s Netflix documentary ‘13th’: For 2.3 million incarcerated Americans, does slavery endure? Retrieved from https://thinkprogress.org/a-scathing-tour-of-the-prison-industrial-complex-in-ava-duvernays-netflix-documentary-13th-251257977026#.7mtapi46n
Kauzlarich, David, Matthews, Rick, Miller, William. (2001). Toward a Victimology of State Crime. Critical Criminology, 10(3): 173-194.
Nunn, Kenneth B. (2002). Race, Crime, and the Pool of Surplus Criminality: Or Why the “War on Drugs” Was a “War on Blacks.” The Journal of Gender Race and Justice, 6(2002): 381-445.
Zach Oaster is a public sociologist, shepherd, and artisan. He is a full-time graduate student of sociology at Western Michigan University as well as a longtime performer of music and organizer around social justice issues. Zach identifies as a radical queer godless apostate and heretical disaffiliated United Methodist. He prefers masculine pronouns, and has a fabulous talent for writing third person bios. Zach describes his academic research as, “exploring the conflicts within conservative political and social discourse, revealed at the intersection of neoconservative and neoliberal ideologies – especially as those discourses converge on issues important to the LGBTQIA communities.” Find out more about Zach at www.FatToaster.com, or on Facebook.com/ZachOaster