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. …