Race, Mass Incarceration, and the Disastrous War on Drugs – brennancenter.org

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Unravelling decades of racially biased anti-drug policies is a monumental project.
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.
U.S. sentencing practices seem especially extreme when compared with countries like Canada, Germany, and the Netherlands.
Persistent and longstanding racism has fueled harsher treatment of young Black people in the justice system.
An incarcerated person writes about how dehumanizing language like “inmate” is destructive.


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