In 1970 the total number of incarcerated people in the United States hovered around 200,000. On Oct. 27, 1994 the prison population surpassed one million for the first time. The vast majority of those incarcerated were held on drug offenses. Now, in 2020, the criminal system holds about 2.3 million people prisoner. The number of people serving life sentences alone exceeds the total number of the prison population in 1970. The origins of this mass incarceration explosion is not a mystery. It stems directly from the “War on Drugs.” This crusade led by President Nixon in the early 70s stays alive today thanks to bipartisan maintenance and support. As of 2020, half of those in federal prison serve sentences for drug related offenses.
The War on Drugs began nearly half a century ago in June of 1971 with a declaration from President Nixon. Nixon halfheartedly hid his intentions behind the excuse of “rampant” drug abuse across the nation, but the iniquitous purpose of his actions continues to present as the disparate mass incarceration of Black, Indigenous, and People of Color (BIPOC) communities.
The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and [B]lack people…We knew we couldn’t make it illegal to be either against the war or [B]lack, but by getting the public to associate the hippies with marijuana and [Black people] 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. (emphasis added).
Though Ehrlichman’s interview vindicated those who already assumed Nixon’s insidious objectives, it did nothing to reverse the dramatic persecution of BIPOC communities–most conspicuously–Black and Latinx persons.
The Reagan administration took up the mantle of Nixon’s push against the Black community by passing the Anti-Drug Abuse Act of 1986. For the first time, this act mandated minimum sentencing in response to specific quantities of cocaine. Apart from the legislative encroachment on the judiciary’s constitutional role in determining appropriate sentencing, Congress further abused their power by establishing different minimum sentences for “crack” and “powder” cocaine.
A little background on these two methods of cocaine use is important to appreciate the disparity in minimum sentencing. There is no difference in chemical makeup between crack and powder cocaine. The distinction between the two forms comes from the method of intake. Powder cocaine is a fine, crystalline powder, it is used by snorting the powder or dissolving it and directly injecting the solution into a vein. Crack cocaine is made by dissolving powdered cocaine into water and ammonia then boiling the mixture into a solid. The solid is then broken into chunks that are smoked. Taking cocaine as a powder gives the user a longer lasting high, but crack cocaine is significantly cheaper to produce in large quantities. The significant difference in price makes crack cocaine more available than powder for persons of lower socioeconomic status.
Until 2010, the ratio in sentencing for the different forms of cocaine was 100:1. One hundred times the amount of powder cocaine was necessary to trigger the same five, ten, or 20 year sentences mandated for the use of crack cocaine. That translated to five grams of the less expensive crack cocaine and 500 grams of the more expensive powder cocaine both resulting in five year sentences. In 2007, the Supreme Court pushed back on sentencing mandates in Kimbrough v. United States. It held that district courts could reasonably maintain sentencing guidelines without strictly adhering to the minimum sentences. This decision opened the door for judges to deviate from the sentencing mandates. Three years later, the Fair Sentencing Act reduced the sentencing disparity from 100:1 to 18:1. While this is a marked improvement, any disparity in sentencing reflects an outdated view of the differences between powder and crack cocaine. The existing disparity continues to unjustly prosecute those of lower socioeconomic status.
The significant wealth gap between white and Black families is to blame for the heavier sentencing on crack compared to powder cocaine. The Nixon campaign appealed to affluent white voters by outlawing lower socioeconomic status. Though this strategy incorrectly assumed the demographics of drug use–consistently white crack cocaine users outnumber Black users–the justice system reflected Nixon’s intent. Nine times as many Black people compared to white people went to prison on crack cocaine offenses between the years 1991 and 2001. As of 2016, Black people were still being arrested at over twice the rate of white crack cocaine users despite higher white use.
Cocaine, of course, is not the only drug that demonstrates a disparity in its punishment across demographics. Though only a little under a third of adults in the United States oppose the legalization of marijuana, over eight percent of federal drug convictions and about 43% of all arrests across the nation relate to marijuana. Despite comparable usage rates, a Black person is almost four times more likely to be arrested than a white person on marijuana related charges. Ferrel Scott, a Black man, faces life in prison for selling marijuana. Kevin Murphy, a white man, made millions of dollars taking marijuana from “seed to sale.” Specific to Montana, Black people are 9.6 times more likely to be arrested for marijuana possession than white people.
Of total illicit drug users in the United States, only five percent identify as Black. Those five percent represent 29% of all drug related arrests and nearly 40% of total federal and state incarcerations for drug law violations. Latinx offenders comprise about 38% of federal incarcerations for drug related violations. In Montana Indigenous people make up 20% the men’s prison population and 34% of the women’s prison population despite only representing between six and seven percent of the state’s total population. A significant number are held on drug related offenses.
The recent response to the opioid crisis contrasts starkly with the mass incarceration of BIPOC communities. The government recognized epidemic of opioid overdose primarily affects white communities. The response to opioid use has not been vilified to the extent of the war against crack cocaine. Following the analysis on the disparities in sentencing for cocaine, the logical conclusion is that addiction to opioids is appropriately considered and treated as an illness–not a prison sentence–because it is primarily a white issue. White communities have higher access to opioids because white patients are prescribed opioids at a rate two times higher than comparable Black patients. Further limiting the exposure to opioids are the socioeconomic barriers to healthcare.
The “War on Drugs” is a misnomer. There was never any real interest in eradicating drug use for the benefit of the people. Examining the history of this lengthy conflict reveals a clear purpose–the continued persecution of Black people in the United States. This fight has no winner. The United States imprisons its own people to the extent that despite boasting only five percent of the global population it represents an entire quarter of total incarceration worldwide. Mass incarceration costs our country $182 billion every year. This is a defining civil rights issue and an opportunity for necessary reform in our justice system.
– L. Moose
Further delves into sentencing reform.
Kimbrough v. United States, 552 U.S. 85 (2007).
Held federal judges can deviate from minimum sentencing. Consider if this actually helped BIPOC communities. Or did it open the door to more racially motivated disparities in sentencing?
Kamaria A. Guilty, Recreational Marijuana Legalization in New Jersey: The Formula for a Bill That Accounts for Racial Injustice, 21 Rutgers Race & L. Rev. 23 (2020).
Available on Westlaw
Considers the legalization of recreational marijuana and the impact on minorities.
Mitchell F. Crusto, Weeding Out Injustice: Amnesty for Pot Offenders, 47 Hastings Const. L.Q. 367 (2020).
Available on Westlaw
Considers exonerating past offenders with new marijuana legalization.
Smita Ghosh, Congressional Administration During the Crack Wars: A Study of the Sentencing Commission, 23 U. Pa. J.L. & Soc. Change 119 (2020).
Available on Westlaw
Compares the Sentencing Commission’s recommendations compared to the laws passed by Congress.