Academic journal article Albany Law Review

American Drug Laws: The New Jim Crow

Academic journal article Albany Law Review

American Drug Laws: The New Jim Crow

Article excerpt


In 1942, over 120,000 Americans were stripped of their businesses and their homes and incarcerated for the duration of World War II.(1) They committed no offense. They were convicted of no crime. They were suspected, arrested, had their property confiscated and were imprisoned because of the color of their skin and their national origin or the national origin of their parents.

The Japanese-American internment in 1942 was an exercise in a traditional American abuse. That abuse was to substitute skin color and national origin for evidence, and to punish on that basis alone.

When I say that the Japanese-American internment was a traditional American abuse, I mean that it did not occur in a cultural, legal or political vacuum. It was one of the worst abuses the United States government ever visited upon its own citizens, but it was not the only such abuse.

During the time of the internment, Jim Crow laws(2) and formal racial segregation existed in the American South and was so reified that virtually no one in this country could imagine it ending. A nation that had long ago learned to tolerate and accept Jim Crow laws (victimizing African-Americans) was well-equipped and well-prepared to accept internment (victimizing Japanese-Americans). A kind of unified field theory of color discrimination existed back then, and thrived upon the same misbegotten principle, which, except in rare instances, went largely unchallenged.

Well, now it's fifty-seven years later, and we like to congratulate ourselves. The country likes to congratulate itself. The polls reflect that we've congratulated ourselves. And even Congress, even this Congress, congratulates itself on being past all that. Jim Crow laws are a thing of the past. We don't punish on the basis of skin color anymore, we tell ourselves. Now, what disparities exist are predominantly based on class and economics.

The Japanese-American internment is now universally recognized as something we're all ashamed of, and even Ronald Reagan, in 1988, came to call it an act of war hysteria and racism.(3) He was a tad late. The American Civil Liberties Union called it that in 1942. But that's often the way it is with expressions of civic morality. It's important to be there when the immorality occurs, so that something can be done about it. Retrospective morality is too easy, and rarely helps the victims. And so it must be said--now, not later--that in the United States today we are not yet past using skin color as a substitute for evidence and a proxy for suspicion.

On our highways, on our streets, in our airports, and at our customs checkpoints, skin color once again, irrespective of class, and without distinctions based on education or economic status, skin color once again is being used as a cause for suspicion, and a sufficient reason to violate people's rights.

We all know what the statistics are, or at least most of us know what the statistics are. In places like Maryland, for example, one of the few states where we've been able to gather systematic statistics, 17% percent of the drivers along a stretch of I-95, outside of Baltimore, are African-American.(4) But 73% percent of those who are pulled over, stopped, and subjected to extensive, humiliating searches are African-American.(5) Nor is this color discrimination limited to targeting African-Americans. Twenty one percent of all drivers along that stretch are racial minorities--African-Americans, Latinos, Asians, and others.(6) Yet 80% of those pulled over and subjected to searches are minorities.(7) That degree of statistical disproportion is highly unlikely to be the product of chance. In fact, it is not the product of chance. It is the product of purpose.

Nor is Maryland an isolated instance. In those few states where we have been able to gather similar systematic statistics, like New Jersey(8) and Pennsylvania,(9) the same kinds of disparities have emerged. …

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