The Jim Crow of Our Time: Race, Drug Policy and Reform

Originally posted on Drug Law Blog by attorney Alex Coolman

I just got back from a vacation with my mom, where we talked about this blog and my occasional tendency to use rhetoric that is perhaps more provocative than persuasive.  My mom argues that the use of such rhetoric — such as the term”sacrificial lamb” to refer to Barry Bonds in his role as steroids prosecution target — has the potential to alienate folks who might otherwise consider the need to reform our national drug policy.

In general, I think she has a good point.

Imagine my reaction, then, on coming home, firing up the computer, and reading Pete’s post on Drug WarRant:”Democratic candidates are still racist.” Yipes! Is that a productive claim to make?

First of all, Pete clarifies in the comments to his own post that he isn’t really suggesting that Democrats are overtly racist. The use of the word “racist” was rather a response to a similarly loaded claim made by Markos Moulitsas of Daily Kos about Republican presidential candidate Ron Paul and was intended, in Pete’s case, to make the case that Democrats “must be held accountable for supporting/not opposing a policy that is racist in fact.”

If that’s the argument, then I agree that it has merit. It is unfortunate that so many otherwise sincere and thoughtful people (of all political persuasions) turn a blind eye to the racial disparities in the way our drug laws are implemented. When blacks are literally being arrested for drug-related behavior at a rate dozens or even more than a hundred times that of their white counterparts despite comparable levels of drug use (see the link in the photo caption, above), something is seriously amiss.

Moreover, as some of the commenters to Pete’s post noted, the origins of criminal drug laws in the 20th century were marked by overtly racist rhetoric.  As Doris Marie Provine notes in her book Unequal Under Law: Race in the War on Drugs, claims about the “cocaine-crazed Negro brain” were unapologetically used to encourage passage of the Harrison Narcotics Act in 1914 (see also: this background on that point).  The first campaign for the regulation of marijuana, too, rode on the coattails of anti-Mexican sentiment in the 1930s, and similarly xenophobic sentiments were deployed around the use of opium.  More recently enacted laws, such as the 1986 changes to the federal sentencing guidelines on crack cocaine, were ostensibly race neutral but were implemented in a manner that punished blacks almost exclusively.

A political candidate who ignores these troubling origins and disproportionate impacts is missing an opportunity to speak out against an unfair and misguided policy, one that can fairly be called the Jim Crow of our time. Like politicians who lived under the original Jim Crow and chose not to speak out against the rise of “separate but equal” facilities for blacks, today’s leaders may not be remaining silent because of racism, but they are nonetheless missing a chance to wrestle with a serious wrong.

The critical thing, I think, is to keep our national dialogue focused on the opportunity for change, for reform, and for justice.  Race has to be a part of that dialogue, because race is so deeply woven into our drug law and our criminal justice system.  But my sense is that the most productive discussion we can have on this issue is one that acknowledges the mistakes of the past and looks for the opportunity to improve our laws, rather than casting aspersions on the shortcomings of either Republicans or Democrats.

In particular, I think we need to emphasize that mainstream political views on drug policy are not where they were 25 years ago, or even 10 years ago. Americans are beginning to realize that their prisons can only hold so many people. They are noticing the racially disparate impacts of our policies. And they are noticing that federal rhetoric around particular drugs, such as marijuana, does not always map onto reality very well. People are ready for a change, as the willingness of even our arch-conservative Supreme Court to allow crack sentencing reform in Kimbrough ought to make clear. What I wish mainstream politicians would understand, then, is not just that there is the moral imperative of drug policy reform but also that there is the pragmatic possibility of enacting that reform without losing the support of mainstream voters.

If drug law is the Jim Crow of our time, it’s not only because drug law is a racial issue.  It’s also because history is ultimately on the side of change.