III. Key Moments / Events
A. Racial Discrimination
B. Gender Discrimination
C. The Intersections of Discrimination
The War on Drugs in the United States is controversial, in part because it is based on an ever-changing cultural reaction to a substance rather than to an actual threat of individual or social harm. Public perceptions of drugs and alcohol are socially constructed and subject to change based on many factors, perhaps primarily based on the intensity of media campaigns detailing community devastation at the hands of drugs addicts and drug dealers and political pressure to once and for all win the war against drugs. Although the boundary between legal and illegal substances is arbitrary, the United States has spent decades waging this war. It involves a growing prison–industrial complex; a series of “get tough” measures; an almost continual barrage of drug-war rhetoric; and discriminatory treatment based on class, race, and gender. The cost of the War on Drugs has been violence, crime, corruption, devastation of social bonds and the destruction of inner-city communities, and the exponential growth of the number of minorities and women incarcerated. Only after nearly 40 years of conducting this war did the United States government, under President Barack Obama, shift its efforts away from heavy-handed enforcement of drug laws and toward recognition of the public health aspects of the problem, placing greater emphasis on drug-use prevention and treatment (Hananel 2010).
During colonial times, the growth of hemp was required by townships because it was used for a wide variety of purposes, including the production of textiles and paper. The first prohibitionist laws in the United States were passed in the 19th century, when state and local ordinances were enacted based on the belief that minority individuals were corrupting the moral stature of white American women. High drug-addiction levels during this period were primarily a result of the liberal use of narcotics, for which accurate education was unavailable. Narcotics were viewed as a socially accepted cure-all, and the addictive nature of these substances remained unknown. To illustrate, cocaine was an ingredient in Coca-Cola from 1886 to 1900, and Bayer sold heroin over the counter in 1898 (Gray 2001, 20–21).
One of the first laws to address illicit substances was the Pure Food and Drug Act, passed in 1906, which required all medications to contain accurate labeling of contents. This act was a significant contribution to the rapid decline in the use of narcotics as society became aware of the potential side effects of such substances. Shortly thereafter the Harrison Act, in combination with Webb v. United States, prohibited physicians from assisting addicts through the prescription of drugs to alleviate the symptoms associated with narcotics withdrawal. As such, many addicted individuals sought out the black market and contaminated drugs to temper their withdrawal. This era marked the beginning of drug prohibition (Gray 2001, 21–22).
Moral crusaders worked to lobby governmental officials for strict legislation against alcohol and other drugs. The result was prohibition of alcohol from 1920 until 1933. This caused widespread crime and violence, a substantial increase in the law enforcement budget, and a significant rise in the number of individuals incarcerated for alcohol-related offenses. The 1920s also saw the demonization of marijuana, with movies such as Reefer Madness conveying to the American public that “one puff of pot can lead clean-cut teenagers down the road to insanity, criminality, and death” (Gray 2001, 24). The Marijuana Tax Act was passed shortly after the end of Prohibition in 1937, recognizing the medical usefulness of marijuana and permitting physicians and authorized others to dispense the drug provided that a licensing fee was paid. The tax, however, for an unlicensed transaction, was so steep as to dissuade the wide-scale use of marijuana for medical purposes (Gray 2001, 23–26). Attitudes toward marijuana, or at least toward its potential uses, changed briefly during World War II, when the government initiated an effort to encourage the use of domestic hemp for industrial purposes. After the end of the war, hemp once again became a “prohibited substance without any practical usages of any kind” (Gray 2001, 26). With the tide turned back toward prohibition, the plethora of get-tough laws began.
Key Moments / Events
Politicians have garnered public support and political benefit from the passage of get-tough laws that, for the most part, consider all illegal substances in one broad category. Both the Boggs Act in 1951 and the Narcotic Control Act in 1956 paved the way for increasingly strict sentences for drug offenses. This was followed in 1961 by ratification of the Single Convention of Narcotic Drugs treaty. Richard Nixon, who expanded antidrug efforts to disrupt the importation of drugs and increase interdiction, initiated the officially declared War on Drugs. The federal budget for drug prevention and law enforcement increased from $150.2 million in 1971 to $654.8 million in 1973 (Inciardi 2008, 188).
Although Nixon’s drug war included moderate financial support for treatment programs, this was dismantled with Ronald Reagan’s redeclaration of the War on Drugs. Nancy Reagan popularized the “Just Say No” campaign, and abstinence rather than treatment became the focus. Such campaigns increased public support for antidrug efforts, and in 1984 the Comprehensive Crime Control Act was passed, which served to increase bail and sentences, as well as to increase federal authority to seize the assets of individuals convicted of felony drug offenses. This was followed closely by the Anti– Drug Abuse Act of 1986, which enacted mandatory minimum sentences for persons found guilty of simple possession, doubled penalties for the deliberate involvement of juveniles, and mandatory life sentences for individuals found guilty of conducting a continuing criminal enterprise involving drugs. This act also made the distribution of illegal substances within 1,000 feet of a school a federal offense. In addition, the Anti–Drug Abuse Act required an annual presidential evaluation of countries producing or transporting drugs and the labeling of cooperating countries as antidrug allies in the War on Drugs. Unless granted a waiver by the president, countries that failed to cooperate with the American drug war were threatened with possible trade sanctions and the loss of foreign aid; in addition, the United States would oppose loans for these countries from international lending institutions (Gray 2001, 27).
In 1988 the Anti–Drug Abuse Act was further expanded to include as federal offenses the distribution of drugs within 100 feet of a park, youth center, playground, swimming pool, or video arcade. In 1994 the Crime Bill enacted criminal enterprise statutes resulting in mandatory sentences ranging from 20 years to life; it also indicated the death penalty as a sentence for some drug-selling offenses. All of these get-tough measures served to dramatically increase the number of individuals incarcerated and fueled the growth of the prison–industrial complex. Along with harsher sentences for drug offenses, legislation also affected an offender’s ability to successfully reenter the community after serving time. Although there are no disqualifications for offenses like rape or manslaughter, in 1998 the Higher Education Act disqualified individuals who had been convicted of marijuana possession from receiving federal aid to attend college (Gray 2001, 27–28).
The current American political system rewards politicians who approach crime with a get-tough approach, and this fuels the fire of ever-increasing spending on the prison– industrial complex. The Executive Summary for 2010 of the ONDCP (Office of National Drug Control Policy 2009) indicates a 2009 federal budget of $14.8 billion for reducing illegal drug use, an increase of $1.1 billion from 2008. This is in addition to the approximately $30 billion total state budgets, bringing spending for the War on Drugs to approximately $45 billion per year. The ONDCP budget, however, does not appear to fall in line with its stated priorities, which are as follows: priority I, substance abuse prevention; priority II, substance abuse treatment; priority III, domestic law enforcement; and priority IV, interdiction and international counterdrug support. Just over $5 billion in 2010, reduced slightly from 2009, has been devoted to priorities I and II combined. The remaining two thirds of the budget will be dedicated to law enforcement and disrupting the market through the use of programs such as Southwest Border Enforcement, Organized Crime and Drug Enforcement, Immigration and Customs Enforcement, support of the Drug Enforcement Administration, and interdiction programs focused on Mexico, Colombia, and Afghanistan (Office of National Drug Control Policy 2009).
Aside from the economics of the prison–industrial complex at the state and federal levels, the number of arrests for drug offenses more than tripled from 580,900 in 1980 to 1,846,400 in 2005. Governmental studies reveal that over half of those imprisoned for federal drug offenses are street-level dealers or transporters, about one third are midlevel dealers, and approximately 11 percent are high-level dealers (Federal Bureau of Investigation 2000). On the state level, 58 percent of drug offenders have no history of either violence or high-level drug activity, and one third have been convicted only of a drug-related crime (King and Mauer 2002).
In addition to the expanding prison population, it is also important to recognize the types of offenses for which individuals are receiving lengthy prison terms. During the period from 1990 to 2002 there was an increase in drug arrests of 450,000 individuals. Of these arrests, 82 percent were for marijuana charges, and 79 percent of marijuana offenses were strictly for possession. These numbers represent an increase in marijuana arrests of 113 percent during this period, while overall arrests decreased by 3 percent. During this period, the arrest of offenders using drugs other than marijuana increased by only 10 percent. These results indicate that nearly half of the drug arrests each year involve marijuana, with a mere 6 percent resulting in felony convictions. To pursue such vigorous incarceration policies toward marijuana, the United States spends an estimated $4 billion annually on arrest, prosecution, and incarceration (King and Mauer 2005; Mauer and King 2007).
Research indicates that the increases in arrest do not correspond to an increase in the use of illegal substances. Furthermore, the shifting of law enforcement resources to a focus on marijuana is not in line with any substantiated decrease in the use of other drugs. Therefore the dramatic increase in marijuana arrest rates can only be understood as the result of selective law enforcement decisions. Such enforcement decisions have varied impacts on the lower class and racial minorities as well as on the female population.
Race is intimately connected with the consequences of the War on Drugs. An example of the intersection of class and racial discrimination with regard to drug laws involves New York’s Rockefeller Drug Laws, among the harshest in the nation, which were enacted in 1973. These laws created mandatory minimum sentencing requirements intended to crack down on high-level drug offenders. Sentencing under these laws was based entirely on the quantity of drugs sold or possessed, with no consideration of the offender’s circumstances or role in the drug industry. What resulted was that many offenders sentenced under these laws were punished more severely than individuals convicted of rape or manslaughter.
The Rockefeller Drug Laws greatly impacted minority communities. New York’s population is 23.2 percent African American or Latino; however, these groups comprise 93 percent of those incarcerated for drug felonies. Between 1990 and 2002, New York City experienced an 882 percent increase in arrests for marijuana, including a 2,461 percent increase in arrests for marijuana possession. Although African Americans represent approximately 14 percent of marijuana users in New York City, they represent 30 percent of those arrested for marijuana violations (King and Mauer 2005). The Rockefeller laws were somewhat tempered by the 2004 Drug Law Reform Act, which created a determinate system of sentencing and reduced mandatory minimum sentences for nonviolent felony drug offenses (Real Reform 2006). However, this pattern of discrimination occurs in many states. For example, in Maryland between 1996 and 2001, of all African American offenders, 64 percent were sentenced on drug violations, and an astounding 81 percent of individuals sentenced for drug offenses were African American.
An overwhelming amount of scholarly research indicates that racial minorities do not partake in the use of drugs with any more frequency than do whites. Nevertheless, the coexistence of race and a lower-class position leaves many minorities more visible to law enforcement, leading to the misperception of higher levels of drug involvement among these groups (Riley 1997). This results in disproportionate arrest and prosecution. Of all drug prisoners in state facilities, 45 percent are African American and 20 percent Hispanic. At the same time, there has been a slow but steady increase in the number of white drug offenders (29 percent in 2005, compared with 20 percent in 1999) incarcerated in state prisons (Mauer 2009).
Gender discrimination is another adverse consequence of get-tough drug legislation. The criminalization of women’s involvement in the War on Drugs depends on the notion that female offenders have transgressed their appropriate gender roles in society. Women’s involvement in the drug trade can frequently be attributed to economics as opposed to personal addiction. The feminization of poverty has resulted in women seeking alternative sources of income as decoys or drug couriers (mules) who import or transport drugs. The risks of this employment “choice” are high, often resulting in mandatory minimum sentences for women for whom this is their first offense.
In the late 1980s, the media-driven crack baby epidemic led the public to believe that children born to crack-addicted mothers would face educational and social obstacles that were insurmountable. This scenario fueled gender and racial discrimination in the War on Drugs, as an overwhelming majority of mothers portrayed in the media to have given birth to crack babies belonged to a racial or ethnic minority. The impression that this was an epidemic resulted in the passage of laws that criminalized drug use during pregnancy. Such a legal response, however, dissuaded some women from seeking prenatal care and drug treatment. In addition, maternal drug abuse laws were enforced primarily on minority women: African American and Latino women represented approximately 80 percent of those subject to prosecution. Although research from the National Institute of Drug Abuse has indicated that early medical reports regarding the long-term effects of being born crack-addicted were overstated, the stereotype of the drug-abusing African American or Latino mother remains in the eyes of many Americans (Inciardi 2008, 158–162).
At the close of 1999, more than 80 percent of the women in prison for drug offenses were sentenced using mandatory minimum sentencing laws, and approximately 70 percent of those women were mothers (Bush-Baskette 2000, 924). This has significant and adverse effects for the children’s emotional and psychological well-being as well as effects on those individuals who assume guardianship responsibilities of the children and financial costs of supervising children of women who are incarcerated. Perhaps most notably, the psychological impact on the children remains for many years and disrupts their developmental maturity.
The Intersections of Discrimination
When the widespread search for drugs began, drugs were overwhelmingly found where law enforcement exerted its primary search efforts: in low-income, minority neighborhoods where use and dealing are most visible. Although crack is the least used illicit substance, the War on Drugs specifically targeted the possession and sale of crack cocaine by lower-class and minority individuals. Because minorities are overrepresented among the poor, the case of laws regarding crack cocaine versus powder cocaine is illustrative of the intersections of discrimination by class and race.
The wide discrepancy in federally mandated sentences for crack cocaine versus powder cocaine illustrates a class and racial bias in the criminal justice system. Minorities are primarily prosecuted for crack offenses, while whites are primarily prosecuted for powder cocaine offenses (Bush-Baskette 2000, 924). Although the sentencing discrepancy between crack cocaine and powder cocaine offenses has closed slightly in recent years, initially the laws specified that 5 grams of crack cocaine would earn an offender the same five-year mandatory minimum sentence as 500 grams of powder cocaine. This sentencing gap was significant in creating the current disproportion in minority confinement, as an overwhelming percentage of those sentenced for crack cocaine offenses were minority individuals. Conversely, approximately two thirds of those charged with powder cocaine offenses were white. Statistics such as these illustrate the disproportionate arrest and confinement of overwhelmingly lower-class minorities despite research by the Department on Health and Human Services reporting that less than 1 percent of young African Americans had used crack cocaine in their lifetimes, compared with 4.5 percent of whites (Barak, Leighton, and Flavin 2007, 133–135).
In an analysis of discrimination in the War on Drugs, it becomes evident that race and class are inextricably intertwined, because racial minorities are disproportionately represented among the poor. Increased social control of this group of individuals has been accomplished through the use of drug-related laws that are enforced with vigor in low-income, minority neighborhoods. Although drug laws may on their face appear equal and not discriminatory in intent, the consequences of applying get-tough legislation in fighting the War on Drugs has been the unprecedented incarceration of the poor and minorities as well as a significant increase in the number of women under the control of the criminal justice system. Assumptions based on race, class, and gender stereotypes have created and perpetuated moral panics that fuel support for the drug war.
When politicians and the mainstream media discuss all drug alternatives under one umbrella termed “legalization,” the public becomes frightened of sacrificing communities to the adverse consequences of drug abuse and addiction. There are numerous alternatives to the War on Drugs, however, such as decriminalization, regulated distribution, and harm reduction strategies, including many varieties of drug treatment programs. A bridge between the criminal justice system and the drug treatment community is the Treatment Alternatives to Street Crime (TASC) network. This program uses drug treatment as an alternative or supplement to a criminal justice penalty for a drug offense. Research on programs like TASC offers support for the harm reduction role this initiative plays in interrupting involvement in drug use and criminal activity (Inciardi 2008, 307). Such programs began the movement toward drug courts, which stress accountability, close monitoring, and treatment.
Studies examining the success of drug court programs throughout the 1990s reveal that such programs contribute to a significant reduction in recidivism. Research reveals that recidivism rates for participants range from 5 percent to 28 percent; however, recidivism rates are approximately 50 percent for defendants not participating in drug court initiatives. In addition, such programs substantially lower the self-reported drug use rates for participants (Drug Court Clearinghouse and Technical Assistance Project 1999; Drug Courts: The Second Decade 2006). In recent years, states such as Arizona and California have approved initiatives that mandate first- or second-time drug offenders be sentenced to probation and treatment as opposed to incarceration. A review of this program in Arizona by the state Supreme Court concluded that the rate of compliance was 62 percent as of 1999 and such initiatives saved the state $6.7 million in prison expenditures (Arizona Drug Treatment and Education Fund 2001, 364).
In light of the financial savings of many alternative initiatives and the documented success of such programs, the Obama administration has concluded that there are strong economic incentives to scale back and retool the War on Drugs. Current drug policies disproportionately affect lower-class, minority individuals, discriminate against women, and do little to reduce drug use or encourage treatment for addicted individuals and their families. Government officials now hope that by emphasizing the latter and by stressing community-based antidrug programs, better results can be achieved and a more sustainable balance might be reached between law enforcement requirements and the furtherance of public health (Hananel 2010).
Lisa Anne Zilney
Timeline of Drug-Related Laws and Policies in the United States
1906 – Pure Food and Drug Act
1914 – Harrison Narcotic Act
1937 – Marijuana Tax Act
1951 – Boggs act
1956 – Narcotic Control Act
1961 – Single Convention of Narcotic Drugs
1966 – Narcotics Addict Rehabilitation Act
1968 – Mental Health Centers Act
1970 – Comprehensive Drug Abuse Prevention and Control Act
1970 – Drug Abuse Education Act
1970 – Racketeer-Influenced and Corrupt Organizations Act
1973 – New York Rockefeller Drug Laws
1974 – Narcotic Addict Treatment Act
1979 – Model Drug Paraphernalia Act
1979 – Marijuana section of Rockefeller Drug Laws repealed
1984 – Comprehensive Crime Control Act
1984 – Comprehensive Forfeiture Act
1986 – Anti–Drug Abuse Act
1986 – Mandatory Minimum Laws
1988 – Anti–Drug Abuse Act (expanded)
1990 – Crime Control Act
1994 – Crime Bill
1994 – First “Three-Strikes” Law in California
1996 – Proposition 215 in California (medical marijuana)
1998 – Higher Education Act
2000 – Substance Abuse and Crime Prevention Act (California)
2010 – National drug policy shifts away from the War on Drugs and toward recognition of the public health aspects of the problem
- Arizona Drug Treatment and Education Fund, “Annual Report November 2001.” Federal Sentencing Reporter 14 (2001): 364.
- Barak, Gregg, Paul Leighton, and Jeanne Flavin, Class, Race, Gender, and Crime, 2d ed. Lanham, MD: Rowman & Littlefield, 2007.
- Benavie, Arthur, Drugs: America’s Holy War. New York: Routledge, 2009.
- Bush-Baskette, Stephanie, “The War On Drugs and the Incarceration of Mothers.” Journal of Drug Issues 30 (2000): 924. Campbell, Howard, Drug War Zone: Frontline Dispatches from the Streets of El Paso and Juarez. Austin: University of Texas Press, 2009.
- Campbell, Nancy D., Using Women: Gender, Drug Policy, and Social Justice. New York: Routledge, 2000.
- Drug Court Clearinghouse and Technical Assistance Project, Looking at a Decade of Drug Courts, 1999. http://www1.spa.american.edu/justice/documents/2049.pdf
- Drug Courts: The Second Decade, 2006. http://www1.spa.american.edu/justice/documents/207.pdf
- Federal Bureau of Investigation, Crime in the United States: Uniform Crime Report 2000. http://www2.fbi.gov/ucr/00cius.htm
- Fish, Jeff erson M., ed., Drugs and Society: U.S. Public Policy. Lanham, MD: Rowman & Littlefield, 2006.
- Gray, James P., Why Our Drug Laws Have Failed and What We Can Do about It. Philadelphia:Temple University Press, 2001.
- Hananel, Sam, “Obama Shifts Strategy away from War on Drugs.” Boston Globe (May 12, 2010).
- Inciardi, James A., The War on Drugs IV: The Continuing Saga of the Mysteries and Miseries of Intoxication, Addiction, Crime, and Public Policy. Boston: Allyn and Bacon, 2008.
- Jenkins, Philip, Synthetic Panics: The Symbolic Politics of Designer Drugs. New York: New York University Press, 1999.
- King, Ryan S., and Marc Mauer, Distorted Priorities: Drug Offenders in State Prisons, Washington, DC: Sentencing Project, 2002. http://www.sentencingproject.org/doc/publications/dp_distortedpriorities.pdf
- King, Ryan S., and Marc Mauer, The War on Marijuana: The Transformation of the War on Drugs in the 1990s. 2005. http://www.sentencingproject.org/doc/publications/dp_waronmarijuana.pdf
- MacDoun, Robert J., and Peter Reuter, Drug War Heresies: Learning from Other Vices, Times, and Places. Cambridge, UK: Cambridge University Press, 2001.
- Mares, David R., Drug Wars and Coffeehouses: The Political Economy of the International Drug Trade. Washington, DC: CQ Press, 2006.
- Mauer, Marc, The Changing Racial Dynamics of the War on Drugs, 2009. http://www.sentencingproject.org/doc/dp_raceanddrugs.pdf
- Mauer, Marc, and Ryan S. King, A 25-year Quagmire: The War on Drugs and Its Impact on American Society, 2007. http://www.sentencingproject.org/doc/publications/dp_25yearquagmire.pdf
- Provine, Doris Marie, Unequal Under Law: Race in the War on Drugs. Chicago: University of Chicago Press, 2007.
- Real Reform, “Rockefeller Drug Law Reform.” 2006. http://www.drugpolicy.org/docUploads/RDLFactSheet_May06.pdf
- Riley, K. Jack, “Crack, Powder Cocaine, and Heroin: Drug Purchase and Use Patterns in Six U.S. Cities.” December 1997. http://www.nij.gov/pubs-sum/167265.htm
- Sadofsky Baggins, David, Drug Hate and the Corruption of American Justice. Westport, CT: Praeger, 1998.