Third Way: The Implicit Racism Of Drug Laws
Esther Kelleter / EyeEm
While white people and people of color are found to use marijuana at about the same rates, Black people are arrested for marijuana usage at a rate of four times that of whites. By merely looking at this statistic, it is clear that there is underlying racism in marijuana and drug arrests, although most people would simply put this down to racial profiling on the part of the police making the arrests. Yet a similar disparity exists for crack versus cocaine sentencing as there is a 100:1 ratio of the number of grams of crack versus powder cocaine that leads to mandatory sentencing. While this might seem like a difference in the drugs, this also points to a difference in prosecution rates of Whites and Blacks, as powder cocaine (the drug with the much lower sentencing) is typically associated with Whites and the opposite is true for crack. These prosecution rates point to an issue of systemic racism in drug policy, yet most people don’t know just how deep this issue goes, as the very illegality of drugs exists to criminalize Black people and people of color.
The Illegality of Drugs
Before the 1900s, most drugs were legal in the United States and marijuana was often used in a medicinal capacity. However, this changed in 1930 when Harry Anslinger was appointed as the first director of the Federal Bureau of Narcotics. Instead of relying on science-based data to discuss any potential dangers of marijuana usage, he ran an anti-marijuana campaign based on racism. He stated that “marijuana causes white women to seek sexual relations with Negroes”, a concept that was incredibly taboo at the time as mixed-race marriages were not legal until 1967 in the United States. Anslinger also stated that most marijuana smokers in the United States were people of color, such as Blacks and Hispanics, and said that their Satanic music stemmed from marijuana usage. With comments based so clearly in racism and not in science, Anslinger helped to pass the 1937 Marijuana Tax Act (MTA), which served to make possession and sale of marijuana illegal and placed extremely high taxes on its sale for medicinal use.
The MTA laid the groundwork for Nixon’s Controlled Substance Act (CSA), which was equally founded in racism. Nixon’s administration has largely been credited with beginning the War on Drugs, a decades long fight against drugs which has not decreased drug use and has only led to the mass incarceration of Black people. Nixon formed a commission in 1969, supposedly to research and determine the actual dangers of marijuana, after the MTA was declared unconstitutional. In reality, his commission was a sham as Nixon wanted to criminalize marijuana and heroin, drugs largely associated with hippies and Blacks, in order to delegitimatize the anti-Vietnam war and Civil Rights movements. While the commission he established actually recommended decriminalization of marijuana, stating that it was not as dangerous as the MTA had made it out to be, Nixon and Congress passed the CSA anyways, which regulated the sale and usage of certain drugs, such as marijuana.
Similarly, the current sentencing disparity between crack and powder cocaine is due to racial discrimination in the original laws as well. While the Harrison Narcotic Act in 1914 outlawed cocaine, powder cocaine was extremely popular as a recreational drug and was often glamorized and depicted in media, even during the height of Nixon’s War on Drugs. Cocaine was viewed as harmless and non-addictive and in 1982, an estimated 10.4 million Americans were using cocaine. Around that same time, crack cocaine was developed as a cheaper alternative to powder cocaine, which is typically a very expensive drug. Its cheap price made it more popular in low-income and minority neighborhoods, whereas powder cocaine was more popular in affluent, white neighborhoods. This started the stereotype associating Black people with crack, leading to the 100:1 ratio sentencing disparity. In reality, the National Institute on Drug Abuse found that the majority of crack users were actually white, although white people consisted of less than 20% of crack trial defendants. This demonstrates the clear racism embedded in the very ideas of drug laws.
The Decriminalization of Drugs
Advocates for the decriminalization of drugs typically point to Portugal as a success story as a country that demonstrates the benefits of decriminalization. While Portugal went through its own version of the US War on Drugs, in 2001 it was the first country to decriminalize the usage of all drugs, although dealing drugs is still illegal. While most decriminalization critics claim that decriminalizing drugs will lead to a greater number of overdoses, higher rates of drug usage, and increased rates of HIV infection, none of this has happened in Portugal. Under Portugal’s new policy, when someone is caught with less than a 10-day supply of a drug, instead of going to prison, the drug user is sent to a commission to talk with doctors and social workers who can help them get treatment. Ten years after the passage of this policy, the number of people receiving drug treatment in Portugal increased by over 60%, likely because the stigma involving drug usage was reduced and the threat of possible jail time was also gone. Portugal also has several supervised drug consumption facilities, which exist to allow drug users a safe place to consume drugs. While the majority of the US local and federal governments view these sites as state-sponsored drug use, these sites are proven to reduce HIV and Hep C transmission, as well as overdoses.
While the United States on a federal level is nowhere near attempting the same level of decriminalization as Portugal has, the state of Oregon recently passed Measure 110, which imposes a small fine instead of jail time for individuals caught with less than two grams of any hard drug. As this was only implemented in February of this year, it is hard to tell how successful this decriminalization will be. As of now, though, it appears that it will not begin to scratch the surface of the benefits that Portugal discovered. While the majority of the public supported the passage of the measure, even those who support decriminalization have still voiced doubts about its implementation in Oregon. Although Measure 110 requires state addiction recovery centers, the centers do not exist yet and therefore leave people without treatment options. While decriminalizing drugs is a positive first step, the state was not entirely ready for this action and other states who wish to do the same should take note of the lack of public health services available first.
The Role of the Democratic Party
In 2010, the Obama Administration was responsible for passing the Fair Sentencing Act, which reduced the racist sentencing disparity of crack versus powder cocaine. This lowered the ratio from 100:1 to 18:1. The Administration also voted to retroactively apply this act to those who were already sentenced, allowing them to appeal to judges for reduced sentences. While these are steps in the right direction, an 18:1 ratio is still unfair and based in racism, as crack and powder cocaine have the same chemical effects on the body and so the only difference is which race they are stereotypically associated with.
As the War on Drugs has become increasingly unpopular in the last few years, due to being wildly unsuccessful and racist, Biden’s campaign made promises to reorient drug policy and end mandatory minimum sentences. Yet in May, Biden extended a Trump-era policy regarding class-wide scheduling of fentanyl analogues, which are copycats of fentanyl, an already synthetic opiate. This policy is extremely similar to the crack sentencing disparity, as, not only are Blacks disproportionately convicted of fentanyl analogue crimes, but the mandatory minimum sentencing is harsher for fentanyl analogues than fentanyl itself even though, like crack and powder cocaine, even though they are almost the same chemically.
The official Democratic Party Platform regarding drug usage is that it is time to end the War on Drugs, as well as to reduce racial disparities in drug sentencing. The Biden Administration has a chance to achieve both things, especially as Biden’s campaign promised to do so. Congressional Democrats just introduced the Drug Policy Reform Act in the House, which would decriminalize all drug possession – similar to Portugal’s policy – and establish a commission on substance abuse for a more health-centered approach to drugs instead of a criminalization approach.
It is clear that it is time for the War on Drugs – a more suitable moniker being the War on POC – to end, a fact which has both public as well as Congressional support. The vast majority of drug laws are based on racist foundations and have no place being in such a prominent federal position and thus must be terminated. If the Drug Policy Reform Act, or others like it, were to pass, it would be a great first step for the United States to work towards ending its racist drug laws and prosecutions, as well as providing help to those who are victims of the drug epidemic.
