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Does Drug Prohibition Adversely Impact
African Americans?
An Annotated bibliography
THEODORE A. WOOD
The University of Dayton School of Law
Spring 1997

Introduction

This annotated bibliography attempts to provide an overview of the most recent and best articulated issues and perspectives of drug prohibition as it relates to the African American community. Many different ideologies are conveyed in the articles that follow, including: A discussion of the disparate arrest rates for blacks for drug crimes though blacks represent only a small percentage of Americans that use drugs; the impact of racism on sentencing; the lack of acknowledgment by advocates of prohibition that this is also a health care issue with an impact upon health care resources; that drugs may have been intentionally introduced into black urban areas to inflict destruction upon black communities and black families; the war on drugs is primarily an assault on black males; profiles based in part on race guide the initial discretionary decision by a police officer to initially suspect an individual; an argument that the judicial system is not racially biased; solutions to curb urban violence; a coherent plan phasing in legalization of marijuana, cocaine, and heroin; and more.

After reviewing this material and reading the associated articles, the reader should have a strong understanding of the issues and arguments for and against decriminalization of illicit drugs. In addition, the reader should have a clearer understanding regarding the history and origin of illicit drug prohibition and comparisons to the issues surrounding alcohol prohibition. The reader should also have a grasp for the comparison of illegal drugs that are addictive to legal drugs that are addictive such as nicotine and alcohol. Finally, the reader should understand the nexus between America's current policy on illegal drugs and violence in the black community. African Americans must be aware that all is not well in paradise. Though "get tough on crime" policies are good tools for inciting the fears of white people regarding black people, they actually increase the frequency and seriousness of violent crime. Though a "war on drugs" on the face sounds to be a legitimate law enforcement objective, in reality it's simply political rhetoric.

Unless African Americans participate at the policy making level, they will continue to feel the sting of urban violence, disparate sentencing in the judicial system and be unwilling casualties of a war that may have been sponsored to create their demise.

 



 
 
The following articles are annotated in this bibliography:

A Menace to Society:  "The Use of Criminal Profiles and Its Effects on Black Males", 38 How. L.J. 629, (1995)

An Argument in Favor of Decriminalization, 18 Hofstra L. Rev. 501, (1990

An Economic Attack On Illicit Drugs, 79 May ABA J. 95, (1993)

Benign Neglect of Racism in the Criminal Justice System, 94 Mich. L. Rev. 1660, (1996)

Drug Prohibition: An Unnatural Disaster, 27 Conn. L. Rev. 571, (1995)

Exposing the War on Cocaine: The Futility and Destructiveness of Prohibition, 1983 Wis. L. Rev. 1305, (1983)

How the War On Crime Imprisons America.  Report called 'The State of Violent Crime in America, The Nation, Vol. 262, No. 16, Page 14, (1996)

Just Say No to Drug Decriminalization, Legal Times, Page 31, October 12, (1992)

My Black Crime Problem, and Ours, Manhattan Institute City Journal, Vol. 6, No. 2, Page 14, (1996)

Rethinking Drug Criminalization Policies, 25 Tex. Tech L. Rev. 151, (1993)

Serious' Thought To Decriminalization of Drugs, New York Law Journal, Page 1, March 26, (1993)

The Moral and Practical Case for Drug Legalization, 18 Hofstra L. Rev. 607, (1990)

The Importance of Being More Than Earnest: Why The Case for Drug Legalization Remains Unproven, 27 Conn. L. Rev. 659 (1995)

Violent Crime Control and Law Enforcement Act of 1994: The Failure of the "Get Tough" Crime Policy, 20 Dayton L. Rev. 803, (1995)

Where Young + Black + Male = probable cause, 20 Fordham Urb. L.J. 621, (1993)

 


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Annotations

Elaine R. Jones, Violent Crime Control and Law Enforcement Act of 1994: The Failure of the "Get Tough" Crime Policy, 20 Dayton L. Rev. 803, (1995). Total pages read: 9.

In this article, Ms Elaine Jones advocates passage of the Racial Justice Act. She begins her discussion of the issue of violence in the black community by comparing the lives of poor inner city children and their parents to those living in Sarajevo. In the present case, however, the violence is due to the failure of the "get tough" policy on crime. Though we have tried to curtail the escalation of crime through the use of stiffer penalties, the United States now has the highest rate of incarceration in the world with a prison growth rate of twice the population. (1)

The only measurable result has been the disproportionate impact of incarceration on the Black community.(2) For example, in Baltimore fifteen white juveniles and eighty-six blacks were arrested for selling drugs in 1981. However, in 1991, two fewer whites were arrested while 1304 blacks were arrested.

The Racial Justice Act presents education as the key to offsetting the disparity in these incarceration rates. The proposed program attempts to: a) counsel youth away from crime and substance abuse; b) teach youth methods of dealing with anger before violence erupts; c) counsel victims of school crimes; and d) create alternatives to gangs.(3)

Ms Jones asserts the old policy has never worked, and its now time for a fresh approach. Crime prevention programs in the proposed Act offer a fresh beginning. Though more needs to be done, this is a radical departure from the old "get tough" policy on crime. Congress should pass the Racial Justice Act.

This author does an excellent job at homing in on some of the greatest fallacies of the criminal justice system in its treatment of blacks and the disproportionate arrest rates when compared to whites. The article acknowledges this dilemma has a profound impact to the black community. While a majority of white people may applaud the "get tough" policy on crime, they ignore many of the systemic causes of crime such as drugs, inadequate social skills, and lack of education. The Racial Justice Act at least acknowledges that another approach is needed. [Back]

 


David Schultz, Rethinking Drug Criminalization Policies, 25 Tex. Tech L. Rev. 151, (1993).

Professor Schultz begins this article by pointing out that in the first 1992 presidential debate, each of the three candidates, Bill Clinton, George Bush and Ross Perot, rejected the idea of legalizing drugs as immoral and counterproductive to the reduction of drug use and crimes.(4)

Though the American public has identified drugs as one of the most critical issues facing society, only 18% favored legalization. Several notable public figures have voiced strong support for decriminalization. Former Secretary of State George Schultz, Baltimore Mayor Kurt Schmoke, several federal judges and many others have acknowledged that this approach should at least be studied.(5)

These proponents argue that the current "war on drugs and crime" is an absolute failure, current legislation and policing efforts simply raise prices and profitability of drugs and sentencing disparately impacts minorities. Advocates of legalization are quick to point out that the goal of such a program would not be the free and open distribution of drugs, but a gradual approach to regulation and eventually eliminating the economic incentives.(6)

The American ruling establishment defines the concept of America's "drug problem" as the effort to discourage illegal drug use and elimination of drug related criminal activity. Those that oppose legalization contend that illicit drugs such as cocaine and heroin are inherently immoral because they alter the mind and distort human nature.(7)

Additionally, they argue that there are enormous social costs that can be measured in terms of deaths, crime, poverty, black market etc. By some estimates, 25% of auto thefts, 40% of robberies and assaults and 50% of burglaries can be attributed to the drug problem.

Professor Schultz persuasively asserts that the U.S. policy on drugs has failed to reduce the drug problem and the social harms prohibition causes. It enhances the illegal and criminal activity surrounding drugs and drains resources that could be committed towards other activities.(8) Those that support prohibition ignore the fact that more social harms occur from many other legal activities, such as alcohol and tobacco. (9)

Most strikingly, the drug problem is directly responsible for discrimination against minorities. Of the 1.2 million annual drug arrests, over 80% are black males. This same demographic is over 50% of the prison population despite the fact that they are only 5% of the overall population. Additionally, minorities face discrimination at the sentencing phase where sentencing appears stiffer for drugs traditionally linked to minorities, such as crack, though the harms linked to crack have not been proven to be greater than powder cocaine.(10)

One other effect of prohibition is the violence created in the black community from the "black market." As an alternative to the current failed policies, logic and realism should prevail. Instead of committing resources to extend the death penalty for drug offenses, these resources should be devoted to the health impact of drug addiction, such as aids, and "bad drugs."(11)

Every adult should be permitted to use the drugs of choice without fear of arrest. This principal is consistent a recent holding of the Alaska Supreme Court in Ravin v. Alaska, contending that the "right to be let alone" is among the "most comprehensive of rights most valued by civilized men."(12)

While each person should be able to use the drugs they desire, they should be required to live with the consequences. This legalization initiative would cover marijuana, cocaine, and heroin and these drugs would be regulated in ways such as tobacco or alcohol and limited to adults. Current funding spent on law enforcement and prisons should be diverted to education and rehabilitation programs.(13)

Professor Schultz contends that a rethinking of the current drug policy must occur immediately.

This article aptly captures the mentality of most politicians and the failure of the judicial system. That is, to be successful as a politician, you have to tell the majority of folks what they want to hear whether or not your words have logical meaning. The author notes that legalization is at least worthy of dialogue. Since the minds of most people have been trained to associate the term "illegal drugs" with black people, the "the drug problem" is presented as a problem created by, and effecting only, black people. This theme, coupled with the increasing number of black faces in prison, should sound an alarm. That alarm has finally enunciated, and this author has heard it; loud and clear! [Back]

 


Kurt L. Schmoke, An Argument in Favor of Decriminalization, 18 Hofstra L. Rev. 501, (1990).

In this article, Mayor Schmoke starts by focusing on the medical needs of the drug addict. If the addict is denied proper medical care from legitimate sources, society drives him to the underworld where he gets what he needs, but he violates the law.(14)

Providing a "legal" remedy to this problem causes two additional problems. First, addiction is a disease and must be treated medically. Secondly, the absence of legal sources of drugs for those addicted, creates few options beyond illegal activities. In arguing the case that the drug war has been a failure, Mayor Schmoke puts drug prohibition in a historical perspective.(15)

The first attempt by a municipality to ban drug use occurred in 1875, when San Francisco banned Chinese opium smoking dens.(16) The dens were not closed out of health concerns of use or addiction, but primarily because white people were patronizing these establishments.(17)

Thus, the initial motivation for prohibition was racial. Shortly thereafter, the federal government created the Harrison Narcotics Act, again, not as a tool per se over the medical consequences of drug use, but under commitment to U.S. treaty obligations of the Hague Convention under which the signatories agreed to regulate opium traffic on their soil.(18)

Under this initiative, the drug "black market" was born. From that time until now, the only thing the drug criminalization policies have done is increase the price of drugs for addicts. This creates a paradox because most addicts are poor and will not simply stop using drugs, but will commit crimes to support their habit. America's law and order approach to solving this problem simply prosecutes the small time drug dealers while the big time traffickers remain unaffected, and the flow of drugs into the U.S. unimpeded.(19)

Perhaps the greatest casualties of this war are children, many of whom are killed as innocent bystanders or who replace academic works ethics with the illusion that drug dealing is an easy road to riches. Decriminalization is the answer. The benefits of decriminalization would create an immediate reduction in crime because addicts would have a legitimate source of drugs. First and foremost the profit incentives of the black market would be eliminated along with all the associated harms such as violent crimes and overtaxed court dockets.(20)

Though use may initially increase somewhat, comprehensive treatment programs should be created to deal with these issues. The question becomes one of balancing the harms against the benefits. Mayor Schmoke recommends expanding the role of the public health system in the drug war, increasing education and providing assistance to "at risk" youths.(21) Next, we should redefine the role of the criminal justice system in the drug war. Specifically, the current administration should create a task force to study the potential impact of legalization and policies to address issues of substance control.

Mayor Schmoke presents one of the most carefully reasoned approaches to this issue. It appears that since the face of the drug addict has been presented as black, society considers their lives to be acceptable casualties of war. The notion of the drug problem being approached as a medical problem is rarely heard. Consider the attempt of former Surgeon General, Jocelyn Elders. However, as Mayor Schmoke points out, drug addiction is a medical problem, just as alcohol and nicotine addiction and should be treated as such. Next, his historical perspective sheds new light on the momentum of prohibition given the perceived nature of the problem. While acknowledging there may be an initial increase in the number of users, Mayor Schmoke recommends a medical solution to the issues instead of the familiar "cuff em" and "stuff em" rhetoric. [Back]

 


Gregory A. Loken, The Importances of Being More Than Earnest: Why the Case for Drug Legalization Remains Unproven, 27 Conn. L. Rev. 659 (1995). Total pages read: 30.

Mr. Loken asserts there are no compelling reasons for decriminalization of drugs. Furthermore, he contends there is no link between drugs and crime.(22) He refutes the assertion by decriminalists that crime has doubled since President Nixon initiated the "war on drugs" in 1973, that simultaneous increases in drug war budgets and crime amount to cause and effect. He also refutes the notion that because drugs are illegal, they cost more to buy and the motivation to steal and rob leads to increases in crime, and finally that the associated violence and proliferation of deadly weapons were created by prohibition.(23)

The comparison of alcohol prohibition to the issues of drug prohibitions that have been advanced by those advocating legalization is seriously flawed. First, evidence of a crime epidemic attributable to drug prohibition is weak especially when compared to data from alcohol prohibition. The increase in crime from 1919 to 1933, that many have attributed to prohibition occurred during the depression.(24)

Mr. Loken asserts this increase was caused mainly by America's adoption of highly restrictive immigration laws which created record numbers of destitute immigrants.(25) Next, he contends the war on drugs actually began in 1980, not under Nixon in 1973. In 1980 there was actually a decrease in violent crime which more strongly supports the notion that the war on drugs decreases, not increases, crime. On the issue of racism and enforcement of drug laws, Loken is equally unmoved. From 1973 to 1992, disproportionate arrest rates for blacks actually dropped (5.69 to ONLY 4.96 of those of whites).(26) Additionally, blacks are more likely to oppose legalization.(27) In conclusion, there is no nexus between drugs and crime that can be supported by current criminal trends or the or an analysis of the alcohol prohibition era.(28)

This author's approach to refuting the legalization argument appears to be totally devoid of substance. His comments tend to reflect the quintessential conservative view regarding problems disproportionately facing black people, that "there is no problem." Though his article uses countless number of statistics from various reports, many of which blatantly skew the issue, he makes no attempt to try and explain the "war zone" conditions that prevail in any U.S. "inner city." It's views like his that are reminiscent of members of President Reagan's administration expressing disbelief that there were genuine homeless or impoverished people in America. This author appears to reflect the idea that as long as the violence is on the "the other side of town, there is no problem. Finally, he attempts to refute the assertion of disproportionate arrest rates for blacks by showing that in 1973, blacks were 5.69 times more likely to be arrested for the same crime as whites but in 1992 that disparity dropped to only 4.96. Mr. Loken's article fails to pass the "laughability test" though his critique is certainly not funny. [Back]

 


Steven B. Duke, Drug Prohibition: An Unnatural Disaster, 27 Conn. L. Rev. 571, (1995).

This article begins by noting that the timing of the "drug war" correlates with America's withdrawal from the Vietnam war with President Nixon declaring an "all-out global war on the drug menace."(29) Mr. Duke then cites the "criminogenics of drug prohibition." First, many of the illegal drugs do not contain substances that produce violent behavior.(30) While Cocaine occasionally creates violence during withdrawal, heroin and marijuana diminish aggressive behavior. Next, drug prohibition provides incentives to rob and steal because it increases the cost of illicit drugs.(31) However, with the advent of crack, the cost of the thousand dollar per week cocaine habit has been made affordable. The net result is that more people are killed indirectly by prohibition than the drugs themselves.(32) For example, with the availability of hand guns and assault rifles, drug dealers readily murder to protect turf. Disputes that would normally be fought with fists are now settled with guns.(33)

Additionally, many suicides and accidental killings can be included in this category because "but for" the illegal drug trade, these weapons would not be available.  Other criminogenic effects pointed to by Duke include corruption costs due to payoffs, diversion of law enforcement resources to combat the drug war, and "urban destruction."(34) The drug war has turned many impoverished areas into virtual war zones even though many upper-class whites travel there to buy their drugs.(35) Next, the drug war is racially divisive because the effects are disproportionate to blacks in many ways as cited in previous articles. The greatest inequity is that though whites are the major consumers of illicit drugs, and because most of the consumers come into the inner city to buy, the costs of prohibition fall mostly on the black community.(36) Mr. Duke points to the comments of the Minister Louis Farrakhan: "The epidemic of drugs and violence in the black community stems from a calculated attempt by whites to foster self-destruction [in the black community]."(37)

Research shows that 25% of African Americans believe the government deliberately makes drugs available in the black community to harm black people.(38) Considering employment discrimination, the potentially lucrative nature of the drug trade, the fact that blacks are arrested at six times the rate of whites, 77% of current illegal drug users are white while less than 17% are black, the appeal of the drug market is almost tantamount to entrapment.(39)

The only beneficiaries to drug prohibition are the drug dealers, prison contractors, and the inner city morticians. Mr. Duke offers the most frank critique of the drug problem. When one considers the fact that his article was written in 1995, over a year before the unintentional revelation of the CIA's alleged involvement in the shipment of crack to Los Angeles, Mr. Duke's analysis amounts to a "bombshell." When the politicians talk about the "war on drugs," black faces are implicated just as with welfare, but they do not disclose that most of the drug users are white, as Mr. Duke points out. No one discusses the backlash of  violence that drug prohibition creates when married with the availability of guns, in particular, on African American communities:  Mr. Duke does! [Back]

 


Steven Wisotsky, Exposing the War on Cocaine: The Futility and Destructiveness of Prohibition, 1983 Wis. L. Rev. 1305, (1983).

Mr. Wisotsky directs his focus toward the impact of cocaine upon the drug war since cocaine is in greatest demand. He asserts that the drug war is simply not winnable because of geographic challenges and the lucrative nature of the drug trade.(40) He contends that prohibition is ineffective because it does not destroy demand nor production.(41) In examining the nature of cocaine production, he notes that all cocaine is produced abroad.(42) Coco leaves are abundant and cheap and its extremely profitable to convert them to cocaine. Once converted, the cocaine is transported to the United States primarily by air and sea  under the protection of sophisticated electronic devices.(43) The business is controlled by a handful of Colombian families and in the words of one informant, profits are so high that the most challenging aspect of the drug industry is "getting rid of the money."(44)

The article then explains the futility of the law enforcement approaches to dealing with the cocaine problem.(45) First, authorities can attack the problem at the source of production. However, U.S. agents have little enforcement powers beyond our border apart from international law and bilateral agreements.(46).  Next, the problem can be attacked during shipment to the U.S. This aspect is patrolled by the Drug Enforcement Administration, US Customs Service, and Coast Guard, with Miami being the primary port of entry. Given the fact that, production greatly exceeds U.S. cocaine demand, seizures have no effect upon trafficking.(47)

The problem can also be attacked during distribution within the U.S. however, once the shipments have arrived, there is very little that can be done. Finally, authorities can attack the problem in the movement or concealment of the cocaine money. This technique is limited because of the resilience of the drug organizations. When leaders are prosecuted, the group simply reconstitutes under new leadership.(48) Mr. Wisotsky notes that the present techniques are dismal failures in a major way and fail to even scratch the surface of the trade or deter expansion.(49) Some of the other impediments to winning the war on drugs are corruption of public officials, the influx of drug dollars into international arms trafficking, drug sponsored terrorism and organized crime.(50) The drug war does not have a remote chance of success. However, the American power structure is so opposed to the notion of legalization, that the concept is "unspeakable." While quite lengthy, this article takes a "role up the sleeves" look at how the drug business is run. His approach points out the futility of the U.S. governments efforts at control abroad and interdiction and shows that the current "law and order" approach to fighting drugs is one of "impossibility." This article confirms the concerns of many prohibition critics that current enforcement techniques are "lip service" to appease the American collective majority. [Back]

 


James Ostrowski, The Moral and Practical Case for Drug Legalization, 18 Hofstra L. Rev. 607, (1990).

This presentation presents the discussion of legalization in the context of a legal argument shifting the burden of proof between prohibitionists and those that advocate decriminalization. In order to prevail, the author contends that supporters of prohibition MUST demonstrate that the state can effectively enforce prohibition without creating additional problems comparable in magnitude to actual drug use.(51)

Prohibitionists must prove that drug use would increase substantially after legalization, that harms caused by increased use would NOT be offset by the increased safety of legal drugs, that problems caused by increased drug use would NOT be counterbalanced by a reduction in the use of dangerous drugs that are already legal (alcohol, tobacco etc.), and that harm caused by any increased drug use not offset, would exceed harm NOW caused by side effects (crime, corruption etc.).(52) Next, the author contends that supporters of legalization should prevail if any of several conditions exist. First. regardless of whether current illegal drug use is immoral, the state has no moral right to enforce this moral prohibition because doing so would violate individual rights.(53)

Additionally, if prohibition has no substantial impact on the level of illegal drug use, illicit drugs should be legalized. If prohibition actually increases illegal drug use, illicit drugs should be legalized. If prohibition merely redistributes drug use from illegal drugs to harmful legal drugs, drugs should be legalized. And finally, even though prohibition might decrease the use of illegal drugs, if the negative effects of prohibition outweigh the beneficial effects of reduced illegal drug use, drugs should be legalized.(54)

The author identifies four types of drug related harm: a) Harm caused by prohibition, b) harm prevented by prohibition, c) harm not prevented by prohibition, for example "considering a man who smokes marijuana today, any harmful consequences by his smoking (which would occur even if legal) would be harm not prevented." If the man was arrested and put through the criminal system, this would be harm caused.(55) Finally, there is a harm which is related to, but not caused by, drug use (harms which have been around and occur in the absence of drug use, but which are attributed to drug use by prohibitionists), harms such as prostitution, joblessness etc.

Legalizers and prohibitionists agree that status quo is not acceptable. This presents two options: a) escalate the war on drugs, or b) legalize. The reasonable mind would conclude that past prohibitionist techniques have been dismal failures. Therefore legalization should be examined as a plausible alternative. In so doing, the proper authorities should carefully analyze the pharmacological effects of cocaine, heroin, and marijuana on violent crime. However, the drug most frequently associated with crime and violence is alcohol.(56) Health care costs should be analyzed. Tobacco and alcohol are more deadly on a per capita basis than illegal drugs and their use has long term and chronic effects. What will be the impact of legalization on health care resources? Finally, the issues of increased use should be studied. Several reasonable policy alternatives emerge: Government controlled distribution through clinics only for short-term treatment purposes, government controlled distribution through clinics for long-term maintenance, government controlled distribution available by prescription from physicians for treatment, and finally, distribution, sale and use regulated on par with the alcoholic beverage industry.(57)

This article neatly frames the substantive issues for a legal analysis. When the pros and cons are carefully weighed and evaluated in a multi-factored context, legalization appears much more plausible. The author appropriately underscores the fact that this is at least partly, if not mostly a health care issue with medical consequences just as in the case of alcohol and tobacco and should be approached as such. [Back]

 


Erika L. Johnson, "A Menace to Society:" The Use of Criminal Profiles and Its Effects on Black Males, 38 How. L.J. 629, (1995).

Ms. Erika Johnson notes that as America continues to wage its "war on drugs," the true casualties are black men.(58) The war on drugs perpetuates the racist attitudes beginning with the policeman's decision on whom to suspect for a drug crime, to plea bargaining and sentencing. Additionally, the use of drug courier profiles has made black men the target of law enforcement agencies and essentially sanctioned the use of racial prejudice in determining who is accused of crimes.(59) The author reviews Susan Smith's description of a black man as the car-jacker that kidnapped her two sons and later confessing to drowning them herself, Charles Stuart's initial account of a black man as murdering his pregnant wife on a Boston city street but later committing suicide when it was disclosed that Mr. Stuart himself was the perpetrator and finally, the Scottsboro boys in the 1931 case in which nine black boys were arrested and imprisoned for rapping two white prostitutes after which one of the ladies later recanted her story.(60)

Ms. Johnson asserts that while these are among the most celebrated cases of black males being falsely accused, research indicates that thousands of similar cases go on each day.(61)

The author attributes her contention to the massive disproportionate representation of blacks that cops arrest and courts imprison each year. While young black men constitute only 5% of the population at large, they comprise over 50% of the prison population.(62)

Those that refuse to acknowledge that race is the cause of these disparities are ignorant to the significance that racism plays in the initial stages of police contact with people of color. They underestimate the role that racism plays in forming the basis of a police officer's suspicion.(63)

Are blacks a menace to society? Ms Johnson notes that during slavery, slave codes created a separate set of crimes for slaves, as determined by the public, but these codes did not apply to white folk.(64)

She points out that during the reconstruction, the southern legislature attempted to maintain control over their freed slaves by passing criminal laws that turned petty offenses into serious crimes which in-turn filled up the southern prisons with blacks.(65)

The author notes that these racial disparities in sentencing remain today. Minorities are more likely to go to jail and serve longer sentences. Black violence against white victims is still considered the most serious offense committed in our society. The most striking proof of this point is the imposition of the death penalty where black defendants are 4.3 times more likely to receive the death penalty for killing a white person than if they killed a black person.(66)

The author notes that this disparity results from white society's horror at black violence against white people. In her indictment of the "war on drugs," the author notes that because of concentration on "petty drug offenses and street dealing, the nation's prisons now serve as warehouses for young black males."(67) Young black men in our nation's capital stand a greater chance of being killed on the streets before the age of twenty-five than a U.S. soldier did in Vietnam or the Persian gulf.(68) As a result of America's "war on drugs" many urban black communities have become a war zones, and treated by law enforcement as "occupied territory." The federal courts have perpetuated this assault by holding that drug courier profiles are not violative of the 4th amendment. Race is formally a permissible basis for suspicion which results in a disproportionate number of blacks who are stopped, thereby adding to disproportionate representation in prisons.(69)

Finally, using the "Out of Place doctrine," officers can stop persons of one race or ethnicity if seen in an area predominated by persons of a different race or ethnicity. The result is that more blacks will be found "out of place" because there are more areas predominated by whites(70)

This author intelligently presents this issue from the perspective seen by most black people. She acknowledges that most blacks feel they have either been suspected, stopped, questioned or otherwise hassled by a police, or have family members that have, which would not have happened BUT FOR the color of their skin. She points out that an officer has a great deal of discretion and that race often influences a defendant's initial entry into the criminal justice system. Additionally, she illustrates that the most impacted segment of society of the war on drugs is black males. Ironically, black males receive judgment from a system in which they are greatly underrepresented within the ranks of administrators of justice. [Back]

 


Elizabeth A. Gaynes, The Urban Criminal Justice System: Where Young + Black + Male = Probable Cause, 20 Fordham Urb. L.J. 621, (1993).

In this article, the author begins by noting that in the nations capital, 70% of African American men will be arrested and jailed before reaching age 35.(71) The nation has ignored the impact of the war on drugs on the black community. The favored response is to "prison, prison, prison."(72) Prison does not reform, but perpetuates crime and hardens prisoners' attitudes towards the criminal justice system, and the entire plea bargaining process. Rehabilitation cannot be effective where a prisoner is convicted and imprisoned because of an inept and racist justice system.(73)

Many studies that have addressed the issues surrounding crime and incarceration and conclude that the solution to curtailing crime is one of including the folks most effected in the decision making process. These studies recommend providing community based sanctions, eliminating mandatory sentencing, reducing dependency on imprisonment, and insuring the high quality educational and vocational training and mental health and substance abuse treatment plans. This is the only effective way to reduce recidivism.(74)

Unless black communities have the opportunity to participate in the solutions to end drugs and violence in their communities, it is not likely that change will come.(75) Currently, blacks comprise an insignificant number of the policy makers and decision makers, whose choices impact the lives of minorities. One association dedicated to this cause, the Osborne Association, advocates programs in education, employment and offers support services to prisoners and ex-offenders.(76) Their means to curbing the assault on black communities is to; a) increase legitimate entrepreneurial opportunities for minority youth that will enable them to mature into productive members of society, b) provide training to create and maintain self-sustaining legitimate enterprises, c) develop programs to deal with the influence of drugs and delinquent youth and finally, d) to serve the communities in which minority youth live, by the "creation of viable enterprises that produce needed goods and services."(77)

This article drives home the notion that no one can fix a problem without first understanding its nature. This is especially true regarding the systemic nature of crime. This parallels the problems with health care profiles being crafted to address health challenges of white males to the exclusion of the concerns of ethnic Americans. Blacks must participate in crafting solutions to problems for which they will be the beneficiaries. [Black]

 


Angela J. Davis, Crime and Punishment: Benign Neglect of Racism in the Criminal Justice System, 94 Mich. L. Rev. 1660, (1996).

In this article, Ms. Davis critiques a thesis by Michael Tonry entitled "Malign Neglect: Race, Crime, and Punishment in America." The author begins her assessment by noting the impact of racism in guiding a law enforcement officer's initial discretionary decision regarding whom to suspect of a crime. Tonry's contention is that the disproportionate incarceration of blacks is a result of benign neglect of the drug war's effects on black Americans. He suggests this was an intentional effort to "incarcerate African Americans in large numbers."(78)

Drug war architects made no secret of their intention to carry out the war on drugs in poor, predominantly minority neighborhoods not because this makes good strategic sense, but because drug use and trafficking are open and easy to detect. Furthermore, Tonry contends that the arrest and prosecution disparities and other peripheral effects specifically targeted black Americans primarily to benefit whites.(79) Race guides whom to suspect, whom to arrest, what crimes prosecutors elect to file, and ultimately the imposition of sentencing. This author makes the compelling assertion that the "war on drugs" is simply a fraudulent tool created to appease white people at the expense of blacks. [Back]

 


Bruce Shapiro, How the War On Crime Imprisons America.  Report called 'The State of Violent Crime in America, The Nation, Vol. 262, No. 16, Page 14, (1996).

In this report, the author suggests politicians exploit the fears of white people by disingenuously forecasting rises in crimes committed against whites by black. This is done to generate support for increased crime budgets at the expense of minorities.

The article notes the position of one conservative republican think-tank on crime. On the topic of incarceration, one member commented "if incarceration is not the answer, then what, precisely, is the question?" "Just lock up enough trouble makers and the ghetto will disappear."(80) The belief is that all that's left of the black community in some pockets of urban America is deviant delinquents and criminal adults surrounded by severely abused and neglected kids born out of wedlock.(81) This group contends that one way to curtail crime is to outlaw intervention in prison conditions by fed judges.(82) This conservative republican support group asserts that America should forget about prisons as either rehabilitation or punishment, the main purpose is crime prevention. However, one voice of reason is that of Nicholas Pastore, Chief of New Haven conn. Police department.(83)

Mr. Pastore contends the current crisis is owed to deliberate marketing by gun manufacturers to boost slumping handgun sales through production and sale of assault weapons between 1982 and 1986. He points to a National Bureau of Economic Research In Cambridge, Mass, that 63% of Boston youths believed they could earn more money on the street than a legitimate job.(84) While Pastore believes "get tough" crime policies have had an impact in the short run, they have had an opposite effect in the long run. He sites that the biggest failure has been the "3-strike" law creates the attitude in criminals that "they must get away at any cost" even if it means killing a cop.(85) He also notes, regarding prison expansion, that most of the prisoners jailed today will one day get out of prison uneducated, unemployable, disenfranchised and pissed off. "The law and order approach is a failure." What DOES work is: Community policing, concentration of detectives on organizations that made neighborhoods more dangerous whether caused by gangs of corrupt politicians. Crime MUST be fought by empowering people to identify specific factors making their neighborhoods less safe, no matter what the cause. The veteran police cited the biggest problem as being the irrationality of drug prohibition.(86)

The article suggests that 70% of law enforcement would be unnecessary if drugs were legalized, and prohibition is responsible for doubling the nation's number of prisons. However, this paradox is a "logical arena of cooperation between the left and libertarian conservatives."(87)

This article starkly juxtaposes two views on this issue: One ridiculous, and the other realistic. The first view is reflective of the popular conservative tone of portraying black males as menacing. As long as the media establishment focuses on the crime committed by black people while coupling these reports with their black faces, but tending to not be as aggressive when portraying the photos of similarly situated white people, it becomes easy to harbor the view that blacks are responsible for most crimes. By contrast the second view presented in this article is perhaps one of the most credible on record, because it comes from someone in the trenches; a police chief. It comes from someone who does not have a political stake in the outcome. The chief has seen the futility of the war on drugs and concurs that the key is to empower not ostracize. [Back]

 


John J. DiIulio Jr., My Black Crime Problem, and Ours, Manhattan Institute City Journal, Vol. 6, No., Page 14, (1996).

In this article, the author, an Italian American, begins by conceding that many blacks believe the justice system is biased towards blacks, or at worst purposefully racist. The author contends this is not true.(88) He also raises the question, regarding the reaction of African Americans to the criminal acquittal of O.J. Simpson: "Is black America so lost in its own resentment that they feel closer kinship to a killer because of the color of his skin than to the killer's victim?" The author believes research proves America's justice system is no longer racist. "If blacks are over-represented in the prisons, it is because they are over-represented in the criminal ranks, and violent ranks."(89)

The only way the justice system hurts blacks is lenient sentences for criminals. Furthermore, a study of racial impact of sentencing guidelines between 1986 and 1990 for drug offenders showed that there were no racial disparities. If there are differences, they can be attributed to the fact that blacks commit more serious crimes.(90) The author's contention is that the biggest problem with the criminal justice system is black jury nullification, where research shows that increasingly black jurors to side with black defendants against mostly white dominated justice system.(91)

The author contends that drug laws are not responsible for the fact that weapons arrest rates during 1993 were 5 times greater for blacks than for whites. White people have a legitimate reason to be afraid because, as a number of analysts have begun to note, black criminals are 50 time more likely to commit violent crimes against whites that whites are to commit violent crimes against blacks.(92) This bi-partisan council on crime has reported that the many of the most violent crimes in America are extremely concentrated among young urban minority males. This philosophy is fundamental to the continued strength of racism in America. That is, there is a tendency by some to assert that black people created the problems that exist as impediments to their success. This article, in the face of incontrovertible evidence, DENIES that racism exists in the criminal justice system. The article should serve as a reminder to black America, how different blacks and whites see the issue of racism. No problem can be solved until its existence is acknowledged. [Back]

 


James E. Gierach, An Economic Attack On Illicit Drugs, 79 May ABA J. 95, (1993).

Mr. Gierach persuasively argues that America has lost the war on drugs under the current strategy and a new policy must be devised and focused on economic principals and medical realities.(93) This new approach must be a compromise position between the extremes of tough law enforcement and legalization, and should be directed toward eliminating the social harm created by drugs. Since profits drive the drug business, drug trade can ONLY be successfully attacked economically. One approach to breaking the cycle is by drawing addicts away from drug pushers and leading them into the hands of medical providers.(94) According to the author, "the addict must have an alternative other than crime to obtain the drug of their addiction." Instead of destroying confiscated street drugs, we should steal them, test them at law enforcement labs and distribute them free of charge to addicts. It is the job of the medical community, rather than law enforcement, to address the problem of addiction. A Law and Order approach to solving the war on drugs is a "mission impossible."

This author succinctly presents the heart of the futility of the drug war. That is, this is more an economic problem with medical consequences. The article points out that the only way to impact the black market is to diffuse the economic incentives. He strongly pushes for a more vocal involvement of the medical community. [Back]

 


Bruce Fein, Just Say No to Drug Decriminalization, Legal Times, Page 31, October 12, (1992).

The author asserts the case for legalizing drugs is unpersuasive at best.(95) His approach is that in a free society, the people forego certain liberties and rights as the price for freedom. Ironically, these rights are guaranteed when a nation is economically, politically and militarily strong. If a nation is not strong, these rights will be lost. Therefore, America has the right to foreclose the use of illicit drugs, denying its citizens the element of choice, to support this ideal.

A nation has the right to be justifiably concerned that its citizens be capable of making substantial contributions to its strength. There are, and always have been, infringements upon personal liberties such as compulsory education laws, peacetime conscription and english literacy requirements for naturalization. Incidence of incapacitating drug abuse is substantial and users frequently commit other crimes and many of the people that commit these crime make little or no contribution to the nation's strength.(96)

While there does SEEM to be some discrepancy between legal tobacco sales and prohibiting drugs, smoking is far less physically debilitating than drugs. A discrepancy may exist between alcohol and drugs but prohibition failed because of insufficient popular support. While this author opposes legalization, his argument is well reasoned upon the justification for abrogating or at least infringing some 4th Amendment rights. [Back]

 


Deborah Pines, Knapp Urges 'Serious' Thought To Decriminalization of Drugs, New York Law Journal, Page 1, March 26, (1993).

This article chronicles the comments of a 20 year veteran Manhattan federal judge who contends that probably every federal judge has a sense of frustration in presiding over drug prosecutions. As the author notes, the failures of the war on drugs makes the Vietnam war seem like a success.(97) The only result of the stepped up enforcement of drug laws and tougher penalties has been increased drug use, violence and devastation in poor black neighborhoods. America MUST consider alternatives.(98)

The president should appoint Hillary Clinton to convene a task force on drugs like the one she headed on health care. This war will continue to inflict casualties upon blacks and other minorities unless we develop alternatives to more troops and more money. Judge Knapp's comments are compelling. When a federal judge, who is not an elected official, and has presided over hundreds or thousands of drug cases announces that the "system is broke," then it's time to fix it! [Back]

 


END NOTES

1. Elaine R. Jones, symposium: violent crime control and law enforcement act of 1994: the failure of the "get tough" crime policy, 20 Dayton L. Rev. 803, Page (1995)

2. Id at 804

3. Id at 805

4 David Schultz, Rethinking drug criminalization policies, 25 Tex. Tech L. Rev. 151, (1993).

5. Id at 152

6. Id

7.. Id at 154

8.. Id at 158

9. Id at 159

10 Id

11 Id at 166

12 Id

13 Id

14. Kurt L. Schmoke, a symposium on drug criminalization: an argument in favor of decriminalization, 18 Hofstra L. Rev. 501, (1990).

15. Id at 507

16. Id at 508

17. Id

18. Id

19. Id at 515

20. Id at 518

21. Id at 523

22. Gregory A. Loken, commentary: The Importances of being more than earnest: Why the case for drug legalization remains unproven, 27 Conn. L. Rev. 659, 661, (1995).

23. Id at 663

24. Id at 664

25. Id

26. Id at 677

27. Id at 679

28. Id

29. Steven B. Duke, commentary: drug prohibition: an unnatural disaster, 27 Conn. L.

Rev. 571, (1995).

30.. Id at 575

31. Id

32. Id at 576

33. Id at 578

34. Id at 587

35. Id at 584

36. Id

37. Id at 591

38. Id

39. Id at 594

40. Steven Wisotsky, exposing the war on cocaine: the futility and destructiveness of prohibition, 1983 Wis. L. Rev. 1305, 1308, (1983).

41. Id at 1321

42. Id at 1326

43. Id at 1330

44. Id at 1333

45. Id at 1334

46. Id

47. Id at 1350

48. Id at 1365

49. Id at 1382

50. Id at 1404

51. James Ostrowski, a symposium on drug decriminalization: the moral and practical case for drug legalization, 18 Hofstra L. Rev. 607, (1990).

52. Id at 617

53. Id at 618

54. Id

55. Id at 620

56. Id at 658

57. Id at 680

58. Erika L. Johnson, "a menace to society:" The use of criminal profiles and its effects on black males, 38 How. L.J. 629, (1995).

59. Id at 632

60. Id

61. Id

62. Id at 633

63. Id

64. Id at 635

65. Id at 636

66. Id at 637

67. Id at 639

68. Id at 640

69. Id at 651

70. Id at 655

71. Elizabeth A. Gaynes, The urban criminal justice system: Where Young + Black + Male = probable cause, 20 Fordham Urb. L.J. 621, (1993).

72. Id at 622

73. Id at 627

74. Id at 632

75. Id at 636

76. Id

77. Id at 638

78. Angela J. Davis, crime and punishment: benign neglect of racism in the criminal justice system, 94 Mich. L. Rev. 1660, 1668, (1996).

79. Id at 1670

80. Bruce Shapiro, How the War On Crime Imprisons America.  Report called 'The State of Violent Crime in America, The Nation", Vol. 262, No. 16, Page 14, (1996).

81. Id

82. Id

83. Id

84. Id

85. Id

86. Id

87. Id

88. John J. DiIulio Jr., My Black Crime Problem, and Ours, Manhattan Institute City Journal, Vol. 6, o.2, Page 14, (1996).

89. Id

90. Id

91. Id

92. Id

93. James E. Gierach, An Economic Attack On Illicit Drugs, 79 May ABA J. 95, (1993).

94. Id

95. Bruce Fein, Just Say No to Drug Decriminalization, Legal Times, Page 31, October 12, (1992).

96. Id

97. Deborah Pines, Knapp Urges 'Serious' Thought To Decriminalization of Drugs, New York Law Journal, Page 1, March 26, (1993).

98. Id  

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Contact Information:
Professor Vernellia R. Randall
Institute on Race, Health Care and the Law
The University of Dayton School of Law
300 College Park 
Dayton, OH 45469-2772
Email: randall@udayton.edu

 

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