Race, Drugs, and Law Enforcement in the United States

Fellner, Jamie, Stanford Law & Policy Review

Since the mid-1980s, the United States has pursued aggressive law enforcement strategies to curtail the use and distribution of illegal drugs. The costs and benefits of this national "war on drugs" remain fiercely debated. (1) What is not debatable, however, is that this ostensibly race-neutral effort has been waged primarily against black Americans. Relative to their numbers in the general population and among drug offenders, black Americans are disproportionately arrested, convicted, and incarcerated on drug charges.

Public officials have been relatively untroubled by the disproportionate arrest and incarceration of blacks for drug offenses. Their relative indifference--and that of the public at large--no doubt reflects, to varying degrees, partisan politics, "tough on crime" punitive philosophies, misinformation about drugs, an uncritical embrace of drug war logic, and misguided notions about the needs of poor urban communities. But to some extent it also reflects conscious and unconscious views about race. Indeed, those views have been woven into the very fabric of American anti-drug efforts, influencing the definition of the "drug problem" and the nature of the response to it.

Although whites are relatively untouched by anti-drug efforts compared to blacks, (2) supporters of the drug war may not see a problem of race discrimination because they do not believe the purpose of drug law enforcement is to harm blacks--if anything, drug law enforcement is seen as protecting minority communities from addiction, harassment, and violence. Perhaps without realizing it, they have accepted the same definition of discrimination that the courts use in constitutional equal protection cases--absent ill-intent, there is no discrimination.

The requirements of a malign intent as well as a racially disparate effect for a finding of racial discrimination in United States constitutional jurisprudence differ from those in the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which the United States has ratified. (3) In defining discrimination, the treaty decouples intent from impact. Prohibited discrimination occurs where there is an unjustifiable disparate impact on a racial or ethnic group, regardless of whether there is any intent to discriminate against that group. Where official policies or practices are racially discriminatory, the State party to the treaty must act affirmatively to prevent or end them. Indeed, full compliance requires elimination of racial inequalities resulting from structural racism. (4)

As a party to ICERD, the United States is bound by its provisions and obligated to ensure its fulfillment. (5) It must "condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms." (6) It must not engage in any act or practice "of racial discrimination against person, groups of persons or institutions and ... [it must] ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation." (7) In addition, it must "review governmental, national and local policies, and ... amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists." (8)

The United States has claimed that "the framework of legal prohibitions and enforcement mechanisms [existing in the United States] not only satisfies the requirements of [ICERD], but serves as an example to the world, of which the United States should be very proud." (9) It is true that many of the provisions of ICERD are similar to those already contained in federal and state constitutions and legislation. But ICERD is more protective than those laws. If it is to satisfy its treaty obligations, the United States must "take greater responsibility for the role it plays--and has played--in creating and perpetuating racial discrimination and inequality." (10) Unfortunately, the United States has failed to identify and eliminate public policies and practices that have an unjustifiable racially disparate impact, regardless of whether they are accompanied by racist intent. Racial disparities in the war on drugs may be one of the most striking examples of this country's failure to satisfy ICERD.

Direct enforcement mechanisms of ICERD are lacking. The United States ratified the treaty with a number of reservations, understandings and declarations (RUDs) designed to ensure that becoming a party to ICERD would not require any changes in United States law. (11) Perhaps most significantly, a declaration rendered ICERD non-self-executing, that is, private causes of action could not be based on any treaty provision. (12) As critics have noted, "the endorsement of the most important treaty for the protection of civil rights yielded not a single additional enforceable right to citizens and residents of the United States." (13) Nor are there international mechanisms under which the United States can be compelled to satisfy its treaty obligations. The Committee on the Elimination of Racial Discrimination created by the treaty reviews States Parties' policies and practices and makes recommendations, but has no power to compel compliance with those recommendations. (14)

ICERD is extremely important nonetheless. Even if it does not provide a basis for a cause of action, plaintiffs in civil rights litigation can argue that United States laws should be interpreted in accordance with the treaty. Wholly apart from litigation, the Convention reflects an international consensus on the importance of eliminating racial discrimination, including that which is indirect and hidden behind ostensibly race neutral laws. As a country which prides itself as a leader in promoting racial equality, the United States does not want to be seen as violating or ignoring its treaty obligations. ICERD thus offers a powerful rights-based framework for individuals and organizations seeking to call attention to and develop support for measures to eliminate racial injustice in the United States' war on drugs, as well as in so many other dimensions of American life. At the moment, many public officials are unaware of ICERD. (15) Vigorous and persistent advocacy could change that and help give life to the values and promises the Convention embodies.

In this Article, I briefly recap the role of race in the concerns that prompted and continue to animate the war on drugs, document the racial disparities in the arrest and incarceration of drug offenders, and argue that racial discrimination in the war on drugs violates U.S. obligations under ICERD. There have been numerous detailed, cogent, and, in my judgment, appropriately damning assessments of the war on drugs, including the ways in which it has violated the rights of black Americans. I make no effort here to do justice to that literature. My more limited goals are twofold: First, to remind readers that the war on drugs has always been and continues to be targeted primarily at black drug offenders. And second, to encourage readers who care about racial discrimination in the United States criminal justice system in general, or in drug control efforts in particular, to include ICERD in their arsenal of weapons for justice.

PART I: RACE DEFINES THE PROBLEM

Race has been and remains inextricably involved in drug law enforcement, shaping the public perception of and response to the drug problem. (16) A recent study in Seattle is illustrative. Although the majority of those who shared, sold, or transferred serious drugs (17) in Seattle are white (indeed seventy percent of the general Seattle population is white), almost two-thirds (64.2%) of drug arrestees are black. The racially disproportionate drug arrests result from the police department's emphasis on the outdoor drug market in the racially diverse downtown area of the city, its lack of attention to other outdoor markets that are predominantly white, and its emphasis on crack. Three-quarters of the drug arrests were crack-related even though only an estimated one-third of the city's drug transactions involved crack. (18) Whites constitute the majority of those who deliver methamphetamine, ecstasy, powder cocaine, and heroin in Seattle; blacks are the majority of those who deliver crack. Not surprisingly then, seventy-nine percent of those arrested on crack charges were black. (19) The researchers could not find a "racially neutral" explanation for the police prioritization of the downtown drug markets and crack. The focus on crack offenders, for example, did not appear to be a function of the frequency of crack transactions compared to other drugs, public safety or public health concerns, crime rates, or citizen complaints. The researchers ultimately concluded that the Seattle Police Department's drug law enforcement efforts

   reflect implicit racial bias: the unconscious impact of race on
   official perceptions of who and what constitutes Seattle's drug
   problem.... Indeed, the widespread racial typification of drug
   offenders as racialized "others" has deep historical roots and was
   intensified by the diffusion of potent cultural images of dangerous
   black crack offenders. These images appear to have had a powerful
   impact on popular perceptions of potential drug offenders, and, as
   a result, law enforcement practices in Seattle. (20)

The racial dynamics reflected in Seattle's current drug law enforcement priorities are long-standing and can be found across the country. Indeed, they provided the impetus for the "war on drugs" that began in the mid-1980s. (21) Spearheaded by federal drug policy initiatives that significantly increased federal penalties for drug offenses and markedly increased federal funds for state anti-drug efforts, the drug war reflected the popularity of "tough on crime" policies emphasizing harsh punishments as the key to curbing drugs and restoring law and order in America. (22) The drug of principal concern was crack cocaine, erroneously believed to be a drug used primarily by black Americans. The use of cocaine, primarily powder cocaine, had increased in the late 1970s and early 1980s, particularly among whites, but powder cocaine use did not provoke the "orgy of media and political attention" (23) that occurred in the mid-1980s when a cheaper, (24) smokable cocaine in the form of crack appeared. (25)

Crack was the latest in a series of drugs that since the late nineteenth century have preoccupied policy makers in the United States. (26) In each case, "the drug of primary concern was strongly associated in the white public mind with a particular racial minority." (27) Race was the lens through which drug problems in the United States were viewed, coloring both the definition of the problem and the proposed solutions. (28) As the case of Seattle exemplifies, race continues today to influence the perceptions of the danger posed by those who use and sell illicit drugs, the choice of drugs that warrant the most public attention, (29) and the choice of communities in which to concentrate drug law enforcement resources. (30)

Although the use of crack was by no means limited to low-income, urban, minority neighborhoods, (31) it was those neighborhoods which more visibly suffered from crack addiction, and the nuisance and violence that accompanied the struggle of different drug-dealing groups to establish control over its distribution in the 1980s and 1990s. (32) The dismay of local residents, however, was exceeded by the censure and outrage from outsiders fanned by sensationalist media stories and by politicians eager to seek electoral advantage. (33) With politicians and the media focused on the putative effects of crack in inner-city neighborhood--although many of those effects were subsequently proven to have been greatly exaggerated or just plain wrong (34)--those neighborhoods became and remain the principal "fronts" in the war on drugs.

Crack in black neighborhoods was a lightning rod for a complicated and deep-rooted set of racial, class, political, social, and moral dynamics. Politicians were able to woo a white electorate anxious about its declining status through the race-coded language of "drugs" and "crime." (35)

   Public discourse focused on addiction and violence but the subtext
   was understood as that of race. Crack cocaine was perceived as a
   drug of the Black inner-city urban poor, while powder cocaine, with
   its higher costs, was a drug of wealthy whites.... This framing of
   the drug in class and race-based terms provides important context
   when evaluating the legislative response. (36)

That response, most notoriously, included the federal Anti-Drug Abuse Act of 1986 and the Anti-Drug Abuse Act of 1988, which imposed far higher penalties for possession or sale of crack cocaine than powder cocaine, as well as state laws that required prison sentences even for low level drug offenses. (37)

The legislative and law enforcement responses to crack "cannot be attributed solely to objective levels of criminal danger, but [also reflect] the way in which minority behaviors are symbolically constructed and subjected to official social control." (38) Law enforcement efforts against crack in poor minority neighborhoods reinforced control of the urban "underclass," a group deemed by the political and white majority to be particularly "dangerous, offensive and undesirable." (39) The conflation of the underclass with crack offenders meant the perceived dangerousness of one increased the perceived threat of the other. Urban blacks, the population most burdened by concentrated socio-economic disadvantage, became the population at which the war on drugs was targeted. (40)

PART II: WHO ENGAGES IN DRUG OFFENSES?

When asked to close their eyes and envision a drug offender, Americans did not picture a white middle class man snorting powder cocaine or college students smoking marijuana. They pictured unkempt African-American men and women slouched in alleyways or young blacks hanging around urban street corners. (41) At least for the last twenty years, however, whites have engaged in drug offenses at rates higher than blacks.

According to the 2006 surveys conducted by the federal Substance Abuse and Mental Health Services Administration (SAMHSA), an estimated 49% of whites and 42.9% of blacks age twelve or older have used illicit drugs in their lifetimes; 14.5% of whites and 16% of blacks have used them in the past year; and 8.5% of whites and 9.8% of blacks have used them in the past month. (42) Because the white population is more than six times greater than the black population, the absolute number of white drug offenders is far greater than that of black drug offenders. (43) SAMHSA estimates that 111,774,000 people in the United States age twelve or older have used illicit drags during their lifetime, of whom 82,587,000 are white and 12,477,000 are black. (44) Even among powder and crack cocaine users--which remain a principal focus of law enforcement-there are more whites than blacks. (45) According to SAMHSA's calculations, there are 27,083,000 whites who have used cocaine during their lifetime, compared to 2,618,000 blacks and, indeed, 5,553,000 whites who have used crack cocaine, compared to 1,537,000 blacks. (46)

According to the most recent SAMHSA survey, if black and white drug users are combined, blacks account for 13% of the total who have ever used an illicit drug, 8% of those who have ever used cocaine, and 21% of those who have ever used crack cocaine. They represent a comparably small proportion of those who engage in non-possession drug offenses as well.

[FIGURE 1 OMITTED] (47)

By definition, drug users violate laws against drug possession. They also frequently engage in illegal drug distribution activities--e.g., selling drugs for cash or providing them to friends. (48) If, as Figure 1 indicates, blacks constitute a relatively small proportion of those who use drugs (between 13% and 20% depending on the drug), they likely constitute a comparable proportion of those who engage in other illegal drug-related activities. Although there is little direct research on the race of drug sellers, for example, that which exists suggests a racial breakdown among sellers similar to that among users. National surveys of drug abuse conducted by the federal Substance Abuse and Mental Health Services Administration have sometimes included questions on drug selling. In 1991, 0.7% of adult whites and 1.4% of adult blacks reported selling drugs in the past twelve months. Although the proportion of sellers was twice that among blacks than among whites, in absolute numbers far more whites (939,345) reported drug selling than blacks (268,170). (49) Black sellers constituted 12% of the combined number of self-reported black and white sellers. Fifteen years later, 1.6% of whites and 2.8% of blacks surveyed in 2006 reported they had sold drugs in the past twelve months, or an estimated 2,461,797 whites, and 712,044 blacks. Blacks thus represented 14% of the combined black and white sellers. (50)

Evidence regarding the race of drug sellers also emerges from research in specific urban drug …

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Publication information: Article title: Race, Drugs, and Law Enforcement in the United States. Contributors: Fellner, Jamie - Author. Journal title: Stanford Law & Policy Review. Volume: 20. Issue: 2 Publication date: Spring 2009. Page number: 257+. © 2009 Stanford Law School. COPYRIGHT 2009 Gale Group.

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