U.S. Drug Laws: The New Jim Crow?

At the beginning of the 21st century, United States drug policy is dominated by a mendacity that demands criminal penalties, often very harsh criminal penalties, for the use of illicit drugs. n1 Beginning with the Harrison Narcotics Act in 1914, n2 there has been a seemingly unstoppable momentum to define drug use, which many view as a medical or social problem, in strictly criminal terms. Mandatory minimum sentences, asset forfeiture, broadly drawn conspiracy laws and voter disenfranchisement are just some of the tactics in what has become known as the "war on drugs." President Richard M. Nixon was the first president to use the word "war" to frame United States drug policy. n3 Since then this metaphor has been used by each successive United States president and become part of the popular discourse on drug policy. While numerous commentators have questioned the wisdom, efficacy and constitutionality of these policies and laws, the recent phenomena of exploding prison populations and racial profiling have spurred critics to challenge these policies and laws.

Critics of these policies have begun focusing on the disparate impact and enforcement of these laws and policies on minority communities. n4 The analogyhas been made between the current drug laws and the Jim Crow laws that marginalized and disenfranchised African Americans in the American South during the late 19th and early 20th centuries. n5 With this symposium we chose to provide a platform for those who question the dominant drug policy paradigm and wish to explore the connections between race and drug laws that, for the most part, have been ignored in mainstream discourse. The symposium was organized
into three topical panels, with a morning and afternoon Keynote Speaker. Each of these panels and speakers explored a different aspect of this complex issue.

Inevitably, in a one-day symposium, we were not able to cover all the issues we wished to address. In recent years laws have been passed that forbid those with felony drug convictions from receiving student loans. n6 There are no time limits on these punishments; once convicted, loans are denied for life. The Department of Housing and Urban Development ("HUD") has a "One Strike and You're Out" policy which denies housing to people accused of using drugs, even absent a criminal charge. n7 Recent years have also seen the publication of numerous reports linking drug war efforts and racial discrimination. For instance, in 2000 the United States General Accounting Office issued a report that criticized the United States Customs Service for the racial disparity of it search and seizure policies at national airports. n8 According to the report, African American women were nine times as likely as white women to be x-rayed after being frisked, even though they were half as likely to be found carrying contraband. n9 Although we could not address as many of the issues as we wished, our hope is that this symposium will add to and expand the important dialogue taking place about race and drug laws.

Shortly before the symposium, news broke about a drug sting operation in Tulia, Texas. n10 The story of Tulia seemed to encapsulate the larger national drug war story. During a one-day drug raid one in six of Tulia's African American citizens was arrested. A white deputy organized the sting, and juries for those accused were made up mostly of whites. A series of trials for those arrested resulted in severe sentences; one man received sixty years for selling one-eighth of an ounce of cocaine. A local newspaper printed a passionate editorial supporting the arrests. It was not until a local resident began examining the cases and contacting journalists outside Tulia that the white citizens of Tulia, and eventually the whole nation, began to take a close look at what had happened. A local prosecutor who was questioned about what had happened defended the sting by saying, "We're not a lynching county. This is a community that's tough on drugs." n11 The story of Tulia provided a stark backdrop for the discussions and presentations of our symposium. Is what happened in Tulia an anomaly - a random situation, resulting from the overzealous activity of one small town deputy? Or is what happened in Tulia paradigmatic of the national war on drugs? Is Tulia, simply the United States in microcosm? How is race implicated in our  current drug laws? The Temple Political & Civil Rights Law Review invited speakers to its symposium in an attempt to answer this, and other questions about race and the drug laws.

The morning Keynote Speaker, Judge Renee Cardwell Hughes serves in the Criminal Division of the Court of Common Pleas, in the First Judicial District of Pennsylvania. She has served as past president of the Barrister's Association (1990-1991) and the National Bar Association, Women Lawyer's Division, Philadelphia Chapter (1998-1999). She currently serves as a judicial liaison to the Pennsylvania Supreme Court's Sub-committee on racial and gender bias in the judicial system. In her Keynote Address, Judge Hughes discussed the challenges that a judge, bound by a judicial oath to uphold the laws of the Commonwealth,
faces in the day-to-day administration of justice. Often stripped of judicial discretion in sentencing by mandatory minimum sentencing laws, she struggles to uphold her oath to dispense individual justice. Judge Hughes pointed out the inefficiency of mandatory minimum sentences by comparing the recidivism rates of those drug users sentenced to mandatory sentences in state prison as opposed to those given individualized sentences, with options for drug treatment and other supports, best suited to ensure that they can succeed in reclaiming productive lives.

Diana R. Gordon is Professor of Political Science and Criminal Justice at City College, City University of New York, and the author of numerous books and articles. Her symposium article, Drug Policy and the Dangerous Classes: A Historical Overview, illustrates patterns of discriminatory drug policies that have resulted in the marginalization and disenfranchisement of minorities since the first drug prohibition laws were passed. Initially noting colonial restrictions against providing African and Native Americans with alcohol, Professor Gordon noted many socioeconomic factors influencing drug prohibition, such as labor shortages and surpluses. In 1875, San Francisco passed the first drug prohibition ordinance against opium consumption, which primarily targeted Chinese laborers. The timing of the ordinance was such that it coincided with finishing railroad construction; the immigrants were no longer needed. During the Depression, sanctions against smoking cannabis by Mexican immigrants increased as their labor was perceived to be a drain on the economy.

Other bases for past drug laws include a fear of immigrant and minority drug use contaminating white Americans. Secondary effects of this drug use were widely publicized to include violent crimes. These images turned on the geographic locus of the problem. In California, it was a fear of Hindu immigrants' use of cannabis. In the South, the portrayals turned to cocaine-crazed African Americans attacking white women.

Professor Gordon also notes that today's drug laws in many ways are more difficult to fight than the original Jim Crow laws. While the laws are facially neutral, the effects disproportionately fall upon minority drug users. Media reports of drug use by individual persons of color foment perceptions that all members of a particular race are dangerous, thus requiring increasingly more disproportionate enforcement of the laws.

The morning symposium panel entitled Criminal Penalties and the Disparate Impact and Enforcement on the African American Community included three of the most knowledgeable and renowned experts in this field. The speakers were Mr. Marc Mauer of The Sentencing Project, Mr. Eric Sterling of The Criminal Justice Policy Foundation, and The Honorable Robert W. Sweet, United States District Court Judge for the Southern District of New York.

Marc Mauer, assistant director of The Sentencing Project, has researched criminal justice reform issues for twenty years. Mr. Mauer is the author of the book Race to Incarcerate, n12 as well as numerous reports on criminal justice such as The Crisis of the Young African American Male and the Criminal Justice System. n13 In his article, Mr. Mauer discusses the disparate impact and enforcement of drug laws in communities of color, addressing particularly the one-dimensional aspect of drug policy in such communities. While communities of color may see police presence as one aspect of a successful policy to limit the damages of drug abuse in their communities, Mr. Mauer makes clear that such policies must be used in conjunction with treatment options, social supports, and economic opportunities. In addition, Mr. Mauer addresses the issue of substantial voter disenfranchisement that has resulted in communities of color as a result of felony drug convictions.

Eric E. Sterling is the president of The Criminal Justice Policy Foundation, a private non-profit organization that promotes innovative solutions to criminal justice problems. He was a principal aide in developing the Comprehensive Crime Control Act of 1984, n14 the Anti-Drug Abuse Acts of 1986 and 1988, n15 and other laws. Mr. Sterling's talk offered a unique perspective on lawmaking from his experience as Counsel to the Judiciary Committee of the House of Representatives from 1979 to 1989. Mr. Sterling relates how lawmakers needed no additional information to determine that illegal drugs were a problem. However, the representatives leveraged the drug issue to their own advantage. They emotionally charged not only the electorate but also each other in a "hysterical one-upsmanship" in providing skyrocketing penalties for drug crimes. The most recent statistics provided by Human Rights Watch note that for drug offenses, African Americans are imprisoned at a 1300% higher rate that whites.

Mr. Sterling also inquired whether the prohibition against drug use was a "thought crime," given that the few politicians who have advocated review of our present policies are regularly branded as drug users or are shunned by the press and their own political parties. Under the Commerce Clause, Congress asserts federal authority to regulate and prohibit drug use. However, drug use per se affects only the individual user and his or her mind, raising the inquiry of whether one's brain can be rightfully regulated as a component of interstate commerce.

The Honorable Robert W. Sweet is a United States District Court Judge for the Southern District of New York and Chairman of the Committee on Judicial Improvement and the Civil Justice Reform Act Advisory Group for his district. Judge Sweet has also served as Assistant United States Attorney for the Southern District of New York (1953-1955) and Deputy Mayor of New York (1966-1969). Judge Sweet has taken courageous stands against mandatory minimum sentences and other U.S. drug policies. In his article, Crack in the Wall, he discusses how he came to these difficult decisions. He also discusses the problems of mandatory minimum sentences, as they affect both defendants in drug cases, and the judicial system itself. Judge Sweet also discusses the "the new federalism" and its possible impacts on drug policy.

Giving the afternoon Keynote Address of the symposium was the Honorable Kurt L. Schmoke, former Mayor of Baltimore and current partner with Wilmer, Cutler & Pickering.

As mayor of Baltimore, Mr. Schmoke pioneered the use of syringe exchange programs to prevent the spread of HIV and other bloodborne pathogens among injecting drug users ("IDU") and their sex partners. He arrived at this decision after a frank evaluation of U.S. drug policy based on three inquiries: first, whether we have won the war on drugs; second, whether the present system is adequately addressing public health concerns; and third, whether continuation of a prohibition/law enforcement focus on the problem would provide a solution to these problems. Concluding that all questions required a negative reply, Mayor Schmoke attempted to persuade Maryland policymakers to augment their current approaches with a syringe exchange program.

Mayor Schmoke's success story turned on addressing substance abuse as a public health issue, rather than one necessitating a response from the criminal justice system. Characterizing the issue in terms of a parent's reaction to a child's substance abuse problem, he posited that most people would call health care providers for medical treatment, not law enforcement officials for arrest and prosecution. The Baltimore syringe exchange program became a reality after three years of attempting to persuade the state legislature to waive the drug paraphernalia laws. The program reduced the spread of HIV by forty percent in
the IDU community and serves as a model for the nation.

The first afternoon panel of the symposium was entitled Public Health Impacts of Drug Laws. The presentations included a talk on the connection between racial profiling and HIV/AIDS by Dr. Dawn Day of the Dogwood Center (presented by Professor Scott Burris in Dr. Day's absence), a presentation on syringe exchange laws by Professor Scott Burris (not included in this volume), and a presentation by Dr. Mindy Thompson Fullilove of a paper written by Beverly Watkins and Dr. Fullilove on the failure of the public health response to the crack cocaine epidemic.

Dr. Dawn Day's article, Racial Profiling and Other Factors in the Spread of AIDS Among People Who Inject Drugs, analyzes various factors that contribute to the disparate rates of HIV infection in the African American and white communities. Dr. Day concludes that the fear of being stopped by police prevents African American intravenous drug users from carrying clean injection equipment, therefore increasing the likelihood that they will share syringes and become infected with the HIV virus.

Dr. Mindy Thompson Fullilove, is a professor of clinical psychiatry and public heath at Columbia University and a research psychiatrist at New York State Psychiatric Institute. She has published extensively on the topic of drug abuse and public health. Dr. Fullilove's symposium paper addressed the growth of crack cocaine use in the inner cities of America, and the failure of the government agencies to respond with a timely and organized public health plan. Dr. Fullilove questions whether this failure of response was linked to the social and economic marginalization of those communities most affected by crack cocaine use. In her analysis, she compares the lack of public health response to the economic redlining that has taken place in poor neighborhoods.

The last panel of the day entitled Social and Political Disenfranchisement dealt with the social and political marginalization of African Americans and other minorities as a result of U.S. drug laws and policies. The speakers were William Buckman, Esquire; Susan Frietsche, Esquire; Amy E. Hirsch, Esquire; and J. Whyatt Mondesire.

William H. Buckman is a certified criminal trial attorney in the State of New Jersey, where he was admitted to the Bar in 1978. Most recently, Mr. Buckman was one of the lead defense attorneys in the case of State v. Soto. n16 The defense prevailed on a selective persecution claim in seventeen consolidated cases. Mr. Buckman asserted that the New Jersey State police operated based on a racially motivated profile on the New Jersey Turnpike. The recently published opinion in Soto has been cited nationwide as a precedent for challenging racially based profiles.

Mr. Buckman's article, Challenging Racial Profiles: Attacking Jim Crow on the Interstate, initially notes that the rate of contraband seizure based on racial profiles is no greater than that achievable by using random traffic stops of all cars. Thus, racial profiles do not add predictive value to the determination of whether passengers in a car may be carrying illegal drugs. However, racial profiling continues because illegally searched persons of color are less likely to have the resources to challenge the illegally conducted search.

While drug laws are facially neutral, the "unbridled discretion" used in their enforcement results in disproportionate harm to minority populations. In Soto, Mr. Buckman used statistics to demonstrate not only who was stopped for violating traffic laws, but more importantly, who was eligible to be stopped. While most drivers violate at least one of the myriad traffic laws, African American drivers were 485% more likely to be stopped than non-African Americans on the southern part of the New Jersey Turnpike. Officers augmented the exercise of their discretion with the use of "warnings," in which an officer stopped a car for a violation but did not issue a formal ticket. These warnings often served as post-hoc justifications for stops and searches for illegal drugs based only on a racial profile.

Susan Frietsche is a staff attorney at the Women's Law Project. She has litigated and lobbied on behalf of low-income women, domestic violence survivors, health care providers and their patients, lesbian and gay parents, and many others. Most recently Ms. Frietsche, along with the Center for Reproductive Law & Policy and attorneys Seth Kreimer and David Rudovsky, has been co-counsel in the important case Ferguson v. City of Charleston. n17 This case challenged a "search and arrest" policy in Charleston under which pregnant women seeking medical care were secretly drug tested and arrested for "fetal abuse" if they tested positive for drugs. Ms. Frietsche discusses Ferguson and its importance for women seeking medical care during pregnancy and all women seeking bodily autonomy.

Amy E. Hirsch is a supervising attorney at the Community Legal Services office in North Philadelphia. During 1998 she was awarded a Senior Soros Justice Fellowship from the Center on Crime, Communities and Culture to do research on the interaction of welfare reform and criminal justice issues. Her report on that research, "Some Days Are Harder Than Hard": Welfare Reform and Women With Drug Convictions in Pennsylvania n18 was recently released.

Ms. Hirsch's article, Bringing Back Shame: Women, Welfare Reform, and Criminal Justice, addresses the suffering of poor women when minimal interaction with the criminal justice system leads to disproportionately large effects on their public assistance benefits. In many states, possession with intent to deliver small amounts of drugs (five or ten dollars worth) is a felony, and a felony drug conviction results in the lifetime loss of welfare benefits. Many of the women arrested for this minimal possession had no prior convictions and no opportunities to enroll in drug treatment prior to their incarceration. Denial of welfare benefits is further compounded because many welfare caseworkers do not fully understand the laws. Consequently, women are regularly denied benefits for criminal convictions that do not require denial of welfare benefits.

Ms. Hirsch counteracted the conventional wisdom that welfare creates dependence on the public assistance system. She noted that welfare benefits create a measure of independence by providing a source of income to recipients that helps them break the cycle of dependence on drug-using husbands and boyfriends. If the goal of the present system is to deter drug use, denial of welfare benefits to persons with felony drug convictions is counterproductive. By removing the welfare recipient from the drug-use environment, the recipient is more able to address her drug problems.

J. Whyatt Mondesire, president of the Philadelphia branch of the NAACP and publisher of the Philadelphia Sunday Sun Newspaper, has a long and distinguished career as a civil rights activist, journalist, and legislative aide. Mr. Mondesire and the NAACP have recently been involved in a lawsuit seeking to overturn a Pennsylvania law that bans ex-felons from voting for five years after release from prison. In his article, Felon Disenfranchisement: The Modern Day Poll Tax, Mr. Mondesire discusses the history of voter disenfranchisement in the American South under Jim Crow laws. He makes a powerful analogy to the current state of affairs where thirteen percent of African American men now suffer voter disenfranchisement as a result of felon disenfranchisement laws. The current NAACP lawsuit seeks to remedy this situation and encourage a movement nationally to challenge such laws.

The last article in this volume was not presented at the symposium, but was submitted in response to a call for papers. Professor Benjamin D. Steiner and Victor Argothy's article, White Addiction: Racial Inequality, Racial Ideology, and the War on Drugs, initially notes that illegal substance use is often treated as an individual health problem among predominantly white, middle-and upper-class populations. n19 In contrast, policymakers adopt a militaristic approach when addressing drug problems facing lower socioeconomic status populations that are disproportionately minority communities. These observations form Professor Steiner's thesis that the current dominant view of U.S. drug problems is one of "white denial/black blame." In this model, whites are innocent bystanders; drug abuse and its attendant problems are found among minority communities. However, this perception is inapposite to reality; drug abuse problems may be more salient in minority communities, but white Americans use drugs in similar numbers to other racial groups.

FOOTNOTES:

n1. See generally Diana R. Gordon, The Return of the Dangerous Classes: Drug Prohibition and Policy Politics (W. W. Norton 1994); Marc Mauer, Race to Incarcerate (New Press 1999); David F. Musto, The American Disease: The Origins of Narcotics Control (Yale U. Press 1999).

n2. Pub. L. No. 63-223, ch. 1, Stat. 785 (1914) (superseded 1939).

n3. See William N. Elwood, Rhetoric in the War on Drugs: The Triumphs and Tragedies of Public Relations 24 (Greenwood Publg. Group 1994).

n4. See Punishment and Prejudice: Racial Disparities in the War on Drugs, Human Rights Watch Report, Vol. 12, No. 2(G) (2000).

n5. See ACLU, ACLU and Drug Policy, American Drug Laws: The New Jim Crow.

n6. See Carol Lewis, If You Use, You Lose; Critics Decry Law That Cuts Aid to College Students Who Have Drug Convictions, Houston Chronicle A28 (Apr. 14, 1999).

n7. See Jason Dzubow, Fear-Free Public Housing?: An Evaluation of HUD's "One Strike and You're Out" Housing Policy, 6 Temp. Pol. & Civ. Rights L. Rev. 55, 63 (1997).

n8. U.S. General Acctg. Off., U.S. Customs Serv.: Better Targeting of Airline Passengers for Personal Searches Could Produce Better Results, Report No. GG-00-38 (2000).

n9. Id. at 2.

n10. Hector Tobar, A Question of Motive Dogs Texas Panhandle Drug Bust in Tulia: One of Every Six Blacks Was Arrested. Some Residents See Raid as State-sponsored "Ethnic Cleansing," 119 L.A. Times A1 (Oct. 7, 2000).

n11. Id.

n12. See Marc Mauer, Race to Incarcerate (New Press 1999).

n13. See Marc Mauer, The Crisis of the Young African American Male and the Criminal Justice System, Sentencing Project Report (1999).

n14. Pub. L. No. 98-473, 217 (a), 98 Stat. 1837, 2017-34 (codified as amended at 18 U.S.C. 3551-68 (1994).

n15. Pub. L. No. 100-690, 7001 (1), 102 Stat. 4390, 21 U.S.C. 848 (1) (1988 ed.)

n16. 324 N.J. Super. 66 734 (L. Div. 1996), appeal by state withdrawn DOCKET NO. A-1084-95T3 (App. Div. 4/22/99).

n17. 121 S.Ct. 1281 (2001).