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Joseph E. Kennedy

Excerpted Wrom: OHMKHJYFMYXOEAIJJPHSCRT Wars in Black And White, 66-SUM Law and Contemporary Problems 153-181, 153-156 (Summer 2003) (155 footnotes omitted) The article is also available at http://www.law.duke.edu/journals/66LCPKennedy.

Over the past two decades, we have waged war on drugs. Yet it is not likely to be news to any reader of this Symposium on race and criminal justice that the primary casualties of that war have been African Americans and other individuals of color. The debate over the racial complexion of the war against drugs often devolves into a clash of fundamental assumptions that are difficult to either validate or refute. Do we wage the war against drugs in African- American communities because "that is where the drugs are?" Or do we find most illegal drug users and sellers in African-American communities because that is where we spend most of our time looking? Do we punish the sale of crack cocaine so severely because of the effects of the drug or because of the race of those using it most openly?

Critics of the racial disparities of the current effort often point to social science research revealing high illegal drug use among whites. They reason from this evidence that many whites must be engaged in the sales and distribution of illegal drugs given the plausible--and somewhat verified-- assumption that people tend to purchase illegal drugs from members of their own race. By failing to go after white users and sellers as aggressively as African-American users and sellers, the system both creates racial disparities in justice and generates a stream of convictions that tautologically confirms the animating premise that illegal drug use is a predominantly "black problem."

There is, of course, a standard rejoinder. Law enforcement naturally and logically focuses on those communities where illegal drug use has created the most harmful and most visible effects. Selling crack openly in the streets or out of notorious "crack houses" should attract disproportionate attention. Perhaps the predominantly white students of college campuses use as much illegal drugs as denizens of inner city neighborhoods, but drug-related drive by shootings often take place in the inner city and not on college campuses. More generally, illegal drug use is seen as devastating African- American communities in a way that is not seen outside the inner city. People losing jobs, kids dropping out of school, parents neglecting or abandoning their children--all of these social costs are more readily seen in the inner city than in the more affluent white communities where illegal drug use seems to be relatively benign. Even more to the point, illegal drug use in the inner city is seen as crimogenic--the inner-city user of illegal drugs is thought to be more likely to steal or commit some other crime to finance his drug use.

It is difficult to break outside of this simplistic debate because the contemporary data about illegal activity and its consequences are difficult to collect in any way that is both comprehensive and independent. Excellent social science research has challenged some of the assumptions about the nature of drug addiction in the inner cities and its relationship to crime, but the relatively small scale of this research has been drowned out in the public debate by the mind-numbing quantities of statistics generated by the criminal justice system, statistics that purport to validate enforcement decisions to focus on inner city communities of color. Ultimately, however, the criminal justice system is destined to find crime only where it looks for crime.

One way to break out of this debate is to turn to history. Comparisons over time are always imperfect, but they do provide a slightly more detached perspective on matters of controversy, a detachment born of the lower level of investment we feel about social practices in the somewhat distant past. Critics of the current war against drugs often surmise that the war would be waged far differently--or abandoned altogether--if whites were prosecuted and imprisoned more frequently than has been the case. History provides a qualified opportunity to explore this theory.

During the 1920s our government waged a major drug war. It was a two-front war against both alcohol and narcotics. The nation's experiment with Prohibition took place during this time, and the first determined effort to enforce the Harrison Act, our first national anti-narcotics law, was well underway. This article reveals that the drug wars of the twenties were both far less punitive and far more color-blind than our recent efforts. Compared to the current war on drugs, these first national efforts at substance abuse control involved far less prison time for far fewer people. More to the point of this Symposium, the casualties were primarily white: African Americans were relatively under-represented among those imprisoned for narcotics and prohibition violations during the 1920s.

While such statistics suggest that race plays some role in shaping how punitively drug wars are prosecuted, they do not tell us much about how that influence works. This article also explores how race influences the severity of punishment in our current drug war. Whereas past drug wars have occurred during periods of general moral intolerance, the current war against drugs has broken out of this cycle. Our first war against narcotics in the twenties took place alongside a campaign against the mainstream drug of American society--alcohol. The current war against drugs has taken place during a time when the use of legal drugs has grown explosively. From overcoming shyness to losing weight to enhancing sexual or athletic performance to simply being happier--the 1990s saw a growth in the use of ingestible substances to deal with almost every type of problem imaginable.

In the absence of a strong cultural norm of self-restraint with respect to drug use generally, the justification for the current war against drugs rests heavily on an epidemiological form of morality that turns on the risks of harm that flow from the use of a drug by a given population. Notions about the harmfulness of a drug have always been inextricably intertwined with the race of those who use it, and drug use by minorities is usually seen as more harmful than drug use by whites in our society. The unparalleled severity of the current war against drugs rests, however, on greatly exaggerated notions of harm, particularly with respect to crack cocaine. For all its moralism and quasi-religious fervor, the crucial and inequitable premise of our current drug war is that whites can "handle their drugs" better than African Americans can. The result has been a drug war that is unprecedented in both its punitiveness and in its racially disparate impact--the criminal justice equivalent of total war.

These exaggerated notions of the harms of illegal drug use by African Americans are a perverse result of the liberality with which mainstream society views legal drugs. Our increasingly laissez-faire approach to legal drugs has produced profound anxieties about the absence of norms of self-restraint, and mainstream society exorcises those anxieties by overpunishing those who use illegal drugs. Race is the essential lubricant that makes this dysfunctional compromise work. The "otherness" of African Americans and other persons of color enables mainstream society to imagine the use of illegal drugs to be so much more harmful than legal drugs even though they are increasingly being used for related purposes.

The remainder of this article proceeds in two parts. Part II provides some background for the drug wars of the 1920s and lays out the statistical case that the drug wars of the twenties were both far less punitive and far less disparate in terms of its impact on whites and African Americans than our current drug war. Part III explores the cultural dynamics of the current war against drugs and the role that race plays in those dynamics. The conclusion briefly touches on the policy implications of this analysis for judges and legislators.

. Associate Professor of Law, University of North Carolina School of Law.