We will discuss more strategies to address problems of drugs on the following page; however, one of the most controversial drug strategies will be discussed here. It involves the criminalization of drugs and the use of the police and the rest of the criminal justice system to apprehend and punish the users, manufacturers, and sellers of illegal drugs. The war on drugs is an effort in the US since the 1970s to combat illegal drug use and distribution by greatly increasing penalties, enforcement, and incarceration for drug offenders (Britannica 2023b).
The war on drugs was partially in response to a significant global economic recession in the early 1980s. Angela Davis describes it this way:
"By 1994, the deindustrialization of the US economy produced by global economic shifts, was having a deleterious impact on working-class Black communities. The massive loss of jobs in the manufacturing sector, especially in cities like Detroit, Philadelphia, Chicago, New York, and Los Angeles, had the result, according to Joe Willam Trotter, that 'the black urban working class nearly disappeared by the early 1990s.' Combined with the disestablishment of welfare state benefits, these economic shifts caused vast numbers of Black people to seek other – sometimes 'illegal' – means of survival. It is not accidental that the full force of the crack epidemic was felt during the early 1980s and 1990s" (Davis 2021).
The massive expenditures on the curtailment of the drug epidemic also shifted our views on drug use. The US became much more punitive towards drugs, focusing on punishment rather than rehabilitation. The war on drugs created tougher sanctions on drug use in America. The courts treated harmful drug use as a criminal justice issue rather than as a substance dependence or public health issue. The Drug Enforcement Agency was created in 1973 to provide another arm of the government to tackle the specific issue of drugs. By the 1980s, lengthy sentences for drug possession were also in place. One to five-year sentences for possession were increased to more than 25 years.
The war on drugs and its associated policies also drove massive increases in prison populations. Between 1980 and 2010, the US prison population quintupled. The population only began to decline slightly in the 2010s. As of 2019, the US still imprisoned more than 2 million people in prisons and jails, though that figure has declined somewhat since due to changes in policy such as sentencing.
This photo is of activists protesting the war on drugs, with signs that read, "The War on Drugs Is A War On Us!" This 'war,' which continues today, disproportionately impacts people of color. What might be some of the causes and consequences of this war?
“Photo” from “Racial Justice Requires Ending the War on Drugs, Experts Say” by Emaline Friedman, Mad in America is in the Public Domain
Mass incarceration refers to the overwhelming size and scale of the US prison population. As previously discussed, the US has had the largest prison population in the world, but how did this come to be the case?
The war on drugs is one of the major drivers of the prison population in the United States. In 1971, President Richard Nixon declared this 'war,' dedicating increased federal funding and resources to quelling the supply of drugs in the US. This war continued to ramp up through the 1980s and 1990s, especially as crack cocaine became a growing concern in the media and public sphere. Crack cocaine was publicly portrayed as a highly addictive drug sweeping its way through America, allowing politicians to capitalize on this hysteria and pass policies that rapidly increased the prison population. Even so, the vast majority of arrests and enforcement were not of high-level, violent dealers. More often, police arrested small-time dealers or people struggling with addiction. In fact, during the 1990s, the period of the largest increase in the US prison population, the vast majority of prison growth came from cannabis arrests (King and Mauer 2006).
The 1980s and 1990s were also an era where states turned to partnerships with private companies to meet the booming demand for facilities, leading to the rise of private prisons, a process called the privatization of prisons. Private prisons are for-profit incarceration facilities run by private companies that contract with local, state, and federal governments. The business model of private prisons incentivizes them to keep their prisons as full as possible while spending as little as possible on care for inmates. Down 16% from its peak in 2012, private prisons still held 8% of all people incarcerated at the state and federal level as of 2019 (The Sentencing Project 2022). This general statistic hides state-to-state differences, though. For instance, Michigan and Oregon have no private prison facilities in the state, while Texas has the highest number of people incarcerated in private prisons.
From the inception of the war on drugs, racial biases were at the center of these policy changes. For instance, one of Richard Nixon’s top advisors, John Erlichman, explicitly admitted to this in a 2016 interview:
"You want to know what this [war on drugs] was really all about? The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: The antiwar left and Black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or Black, but by getting the public to associate the hippies with marijuana and Blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did" (Baum 2016).
The war on drugs was a deliberately racist set of policies.
Even as the racial gap in incarceration has narrowed in recent years, the US still disproportionately incarcerates Black Americans. While Black Americans make up 12% of the population, they make up over 33% of incarcerated individuals, meaning that they are disproportionately represented in prisons and jails. Similar trends exist among Latino Americans: While they comprise 16% of the US population, they account for 23% of incarcerated individuals. In contrast, while white Americans comprise 63% of the population, they only make up 30% of those incarcerated (Gramlich 2019).
As introduced in the Crime, Immigration, and Social Control chapter, this network of policies and unequal institutional practices led to what scholar Michelle Alexander terms the New Jim Crow. This concept refers to the network of laws and practices that disproportionately funnel Black Americans into the criminal justice system, stripping them of their constitutional rights as a punishment for their offenses in the same way that Jim Crow laws did in previous eras. Because of these new mass incarceration policies, a new iteration of the racial caste system has emerged: One where Black Americans can legally be denied public benefits, housing, the right to vote, and participation on juries because of a criminal conviction.
The war on drugs was a racialized response to a worldwide economic downturn. We had other options. James Forman Jr. puts it this way:
"Rising levels of abuse, addiction, and drug-related violence should have been a sign that something was wrong with America. It should have led the nation to focus on the myriad ways in which 350 years of white supremacy had produced persistent Black suffering and disadvantage. It should have caused politicians to interrogate the cumulative impact of convict leasing, lynching, redlining, school segregation, and drinking water poisoned with lead. Instead of asking, 'What kind of people are they that would use and sell drugs?' The nation should have been asking a question that, to this day, demands an answer: 'What kind of people are we that build prisons while closing treatment centers?'" (2021: 354).
The nation's response to drug use is a social problem. Social justice requires a different response.
Christopher A. Wray, Assistant Attorney General in 2004, said: "Nearly three-quarters of the people in federal prison are nonviolent offenders with no history of violence. Black men are disproportionately arrested and imprisoned" (Sentencing Project 2004). Many of these offenses are related to drug possession, and fewer of them are related to drug distribution. Although harmful drug use causes harm, these offenses are non-violent. By looking at the numbers in this way, we open the door to considering options for social justice that are effective rather than carceral (focusing on prisons).
This chart displays racial/ethnic disparities in US correctional facilities. If race and ethnicity didn’t matter in the criminal justice system, we would expect to see the percentages of each group in the total population of the US and the percentage of people in correctional facilities to match. Instead, we see vast inequality, with white people far underrepresented and Black people far overrepresented.
“Racial and Ethnic Disparities in Correctional Facilities” from “Mass Incarceration: The Whole Pie 2023” by Wendy Sawyer and Peter Wagner © Prison Policy Initiative is included under fair use
As we have discussed in prior chapters, disproportionality is the overrepresentation or underrepresentation of a social group compared with its percentage in the total population. We can see disproportionality across groups of many social locations. Racial disproportionality is related to harmful drug use and the criminal justice system. As we see in the figure above, in 2019, white people made up 60% of the overall population of the US, but they made up only 38% of people who are incarcerated. Black people made up 13% of the overall population, but they were also 38% of the incarcerated population. Latinx people were 18% of the total population and 21% of people in prison or jail. Finally, Native Americans were 0.9% of the population but 2% of those in jail. In every case, we see disproportionality.
However, the measure of disproportionality doesn’t tell us why difference exists or what to do about it. If you consider the infographic The Social Ecological Framework of the Opioid Crisis from the prior page, you see many causes of inequality. The causes of disproportionality are often disparity. Racial disparity is the unequal outcomes of one racial or ethnic group compared with outcomes for another racial or ethnic group (Child Welfare Information Gateway 2021).
As we consider the war on drugs, we see that systems, laws, policies, and practices privilege white people over people of color. In one example, the sentencing for crack cocaine and powder cocaine are significantly different, as previously mentioned. Distributing 5 grams of crack cocaine had a 5-year mandatory minimum federal prison sentence. Distributing 500 grams of powder cocaine had the same sentence. More than 80% of the crack cocaine defendants in 2002 were Black, even though two-thirds of the crack cocaine users were white or Latinx (The Sentencing Project 2004). Powder cocaine is more likely to be used by wealthier people, who are disproportionately white (Vagins & McCurdy 2006).
This picture shows powdered cocaine and the implements to use it. How does the form of a drug and the perceptions of people who use it impact drug policy?
“Photo” by Colin Davis is licensed under the Unsplash License
Even when judges have more discretion in what sentences they impose, racial disparities exist:
"Racialized assumptions by key justice system decision makers unfairly influence outcomes for people who encounter the system. In research on presentence reports, for example, scholars have found that People of Color are frequently given harsher sanctions because they are perceived as imposing a greater threat to public safety and are therefore deserving of greater social control and punishment" (Nellis 2021: 12-13).
These biases are both conscious and unconscious, and they occur at every level of the criminal justice system, from police to lawyers, to judges, to the politicians who make the laws in the first place. Structural racism and individual racist ideas result in racial disparity in the criminal justice system.
The Opioid Crisis
Another way to see the impact of the war on drugs and notice racism at work in response to harmful drug use is to examine the opioid crisis. The opioid crisis refers to the surge in fatal overdoses linked to opioid use (DeWeerdt 2019). The overdose fatality rate rose by 345% between 2001 and 2016 (Jalali et al. 2020). Opioids are a class of drugs that cause euphoria. Opioids include heroin, morphine, codeine, hydrocodone, OxyContin®, and fentanyl (Johns Hopkins Medicine 2023). Heroin is an illegal drug; the others are prescription drugs that doctors prescribe for pain relief.
Nearly 75% of drug overdoses in 2020 involved a legal or illegal opioid (Centers for Disease Control 2022). The CDC describes the crisis using three waves. The first wave started in the 1990s. In this wave, the deaths were primarily due to overdoses on prescription opioids, like OxyContin® and Vicodin®. This wave was a result of the overprescription of opioid-based painkillers, causing some individuals to become physically dependent.
The second wave started in 2010. The second wave was due to overdoses related to using heroin. This use of heroin partially resulted from a decrease in the amount of legally available prescription painkillers.
The third wave started in 2013. This wave marked an increase in overdose deaths from synthetic opioids like fentanyl and tramadol. While fentanyl can be prescribed, this wave was driven by illegally manufactured substances.
This chart displays the three waves of opioid overdose deaths. Each wave was caused by a different opioid substance. Each wave also had different racist responses.
See photo credit above
The response to heroin use and misuse was carceral (involving prisons). It was part of the war on drugs.
Race was at the core of drug policy that emerged from an increase in heroin use in urban centers in the 1960s. According to media accounts, the face of the heroin user at that time was “black, destitute and engaged in repetitive petty crimes to feed his or her habit” (Hart & Hart 2019: 7). A popular solution to this racialized drug scare was to incarcerate Black users of heroin and offer methadone treatment to white users.
New York state was a forerunner in creating harsh drug laws to address heroin use in cities. The infamous Rockefeller drug laws of 1973 created mandatory minimum prison sentences of 15 years to life for possession of small amounts of heroin and other drugs (Hart & Hart 2019). Ninety percent of those convicted under the Rockefeller drug laws were Black and Latinx, though they represent a smaller proportion of people who use drugs in the population (Drucker 2002).
The societal response to opioid use and dependence among white people during this crisis has been gentler, relying more on treatment than the criminal justice system (Hart & Hart 2019; James & Jordan 2018). According to statistics from the Bureau of Justice, 80% of arrests for heroin trafficking are among Black and Latinx people, even though white people use heroin at higher rates and are known to purchase drugs within their own racial community (James & Jordan 2018).
As we examine the response to the overprescription of opioids and the harmful use of fentanyl, we see a stark difference in public response. We see a focus on monitoring doctors so that they don’t overprescribe opioids. We see a focus on the overuse of opioids as a medical disease needing treatment rather than criminalizing the user of the drug.
Our response to drug use in the opioid crisis is racialized. Researchers Netherland and Hansen summarize the unequal response this way:
"The public response to White opioids looked markedly different from the response to illicit drug use in inner city Black and Brown neighborhoods, with policy differentials analogous to the gap between legal penalties for crack as opposed to powder cocaine. This less examined ‘White drug war’ has carved out a less punitive, clinical realm for Whites where their drug use is decriminalized, treated primarily as a biomedical disease, and where White social privilege is preserved… in the case of opioids, addiction treatment itself is being selectively pharmaceuticalized in ways that preserve a protected space for White opioid users, while leaving intact a punitive, carceral system as the appropriate response for Black and Brown drug use" (Netherland & Hansen 2017).
We can see a racialized response in the differential access to treatment options for the harmful use of opioids white people who use opioids have been given more access to the preferred addiction treatment medication, buprenorphine. Treatment with buprenorphine is less stigmatized because it is dispensed like any other pharmaceutical medication at a private doctor’s office
Another treatment option is methadone. This method requires frequent visits to a methadone clinic. Often people of color receive treatment at the less-preferred methadone clinics (Hansen 2015). Politicians legalized Buprenorphine treatments for opioid use disorder, supporting white addicts (Netherland & Hansen, 2017).
These characteristics of the social landscape contribute to increased health harms, such as contracting HIV or hepatitis C, for Black people who use drugs. Health harms caused by substance use are higher among Black people who use drugs, not because they participate in riskier drug use behavior, but because they reside in under-resourced communities that hinder access to health-promoting services and materials (Cooper et al. 2011). Accordingly, opioid overdose rates for Black people have historically been higher than those for white people in some states. Recently this rate has been increasing more rapidly, though the media attention surrounding the opioid crisis mostly focuses on drug use by white people (James & Jordan 2018).
As we have seen, the war on drugs has targeted Black and Brown communities, resulting in their disproportionate representation in prisons. As discussed in the Crime, Immigration, and Social Control chapter and above, there are long-lasting consequences of this criminalization for individuals, families, communities, and society at large. Many scholars, activists, and criminal justice professionals today are against this harsh, punitive approach to drug use. Instead, they favor a variety of other practices and policies, which we discuss next.
