Daily Archives: October 30, 2022

View the entire Punitive Excess series

This essay is part of theBrennan Centers seriesexaminingthe punitive excess that has come to define Americas criminal legal system.

I have a long view of the criminal punishment system, having been in the trenches for nearly 40 years as an activist, lobbyist, legislative counsel, legal scholar, and policy analyst. So I was hardly surprised when Richard Nixons domestic policy advisorJohn Ehrlichmanrevealed in a 1994 interview that the War on Drugs had begun as a racially motivated crusade to criminalize Blacks and the anti-war left.

We knew we couldnt make it illegal to be either against the war or blacks, but by getting the public to associate the hippies with marijuana and blacks with heroin and then criminalizing them 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 in the evening news. Did we know we were lying about the drugs? Of course we did, Ehrlichman said.

Before the War on Drugs, explicit discrimination and for decades, overtly racist lynching were the primary weapons in the subjugation of Black people. Then mass incarceration, the gradual progeny of a number of congressional bills, made it so much easier. Most notably, the 1984Comprehensive Crime Control and Safe Streets Acteliminated parole in the federal system, resulting in an upsurge ofgeriatric prisoners. Then the 1986Anti-Drug Abuse Actestablished mandatory minimum sentencing schemes, including the infamous 100-to-1 ratio between crack and powder cocaine sentences.Its expansionin 1988 added an overly broad definition of conspiracy to the mix. These laws flooded the federal system with people convicted of low-level and nonviolent drug offenses.

During the early 1990s, I walked the halls of Congress lobbying against various omnibus crime bills, which culminated in the granddaddy of them all theViolent Crime Control and Safe Streets Actof 1994. This bill featured the largest expansion of the federal death penalty in modern times, the gutting of habeas corpus, the evisceration of the exclusionary rule, the trying of 13-year-olds as adults, and 100,000 new cops on the streets, which led to an explosion in racial profiling. It also included the elimination of Pell educational grants for prisoners, the implementation of the federal three strikes law, and monetary incentives to states to enact truth-in-sentencing laws, which subsidized an astronomical rise in prison construction across the country, lengthened the amount of time to be served, and solidified a mentality of meanness.

The prevailing narrative at the time was tough on crime. It was a narrative that caused then-candidate Bill Clinton to leave his presidential campaign trail to oversee the execution of a mentally challenged man in Arkansas. It was the same narrative that brought about the crackpowder cocaine disparity, supported the transfer of youth to adult courts, and popularized the myth of the Black child as superpredator.

With the proliferation of mandatory minimum sentences during the height of the War on Drugs, unnecessarily lengthy prison terms were robotically meted out with callous abandon. Shockingly severe sentences for drug offenses 10, 20, 30 years, even life imprisonment hardly raised an eyebrow. Traumatizing sentences that snatched parents from children and loved ones, destabilizing families and communities, became commonplace.

Such punishments should offend our societys standard of decency. Why havent they? Most flabbergasting to me was the Supreme Courts 1991decisionasserting that mandatory life imprisonment for a first-time drug offense was not cruel and unusual punishment. The rationale was ludicrous. The Court actually held that although the punishment was cruel, it was not unusual.

The twisted logic reminded me of another Supreme Courtcasethat had been decided a few years earlier. There, the Court allowed the execution of a man despite overwhelming evidence of racial bias because of fear that the floodgates would be opened to racial challenges in other aspects of criminal sentencing as well. Essentially, this ruling found that lengthy sentences in such cases are cruel, but they are usual. In other words, systemic racism exists, but because that is the norm, it is therefore constitutional.

In many instances, laws today are facially neutral and do not appear to discriminate intentionally. But the disparate treatment often built into our legal institutions allows discrimination to occur without the need of overt action. These laws look fair but nevertheless have a racially discriminatory impact that is structurally embedded in many police departments, prosecutors offices, and courtrooms.

Since the late 1980s, a combination of federal law enforcement policies, prosecutorial practices, and legislation resulted in Black people being disproportionately arrested, convicted, and imprisoned for possession and distribution of crack cocaine. Five grams of crack cocaine the weight of a couple packs of sugar was, for sentencing purposes, deemed the equivalent of 500 grams of powder cocaine; both resulted in the same five-year sentence. Although household surveys from the National Institute for Drug Abuse have revealed larger numbers of documented white crack cocaine users, the overwhelming number of arrests nonetheless came from Black communities who were disproportionately impacted by the facially neutral, yet illogically harsh, crack penalties.

For the system to be just, the public must be confident that at every stage of the process from the initial investigation of crimes by police to the prosecution and punishment of those crimes people in like circumstances are treated the same. Today, however, as yesterday, the criminal legal system strays far from that ideal, causing African Americans to often question, is it justice or just-us?

Fortunately, the tough-on-crime chorus that arose from the War on Drugs is disappearing and a new narrative is developing. I sensed the beginning of this with the 2008Second Chance Reentrybill and 2010Fair Sentencing Act, which reduced the disparity between crack and powder cocaine. I smiled when the 2012 Supreme Court ruling inMiller v. Alabamacame out, which held that mandatory life sentences without parole for children violated the Eighth Amendments prohibition against cruel and unusual punishment. In 2013, I was delighted when Attorney General Eric Holder announced hisSmart on Crimepolicies, focusing federal prosecutions on large-scale drug traffickers rather than bit players. The following year, I applauded President Obamas executiveclemency initiativeto provide relief for many people serving inordinately lengthy mandatory-minimum sentences. Despite its failure to become law, I celebrated theSentencing Reform and Corrections Actof 2015, a carefully negotiated bipartisan bill passed out of the Senate Judiciary Committee in 2015; a few years later some of its provisions were incorporated as part of the 2018First Step Act. All of these reforms would have been unthinkable when I first embarked on criminal legal system reform.

But all of this is not enough. We have experienced nearly five decades of destructive mass incarceration. There must be an end to the racist policies and severe sentences the War on Drugs brought us. We must not be content with piecemeal reform and baby-step progress.

Indeed, rather than steps, it is time for leaps and bounds. End all mandatory minimum sentences and invest in a health-centered approach to substance use disorders. Demand a second-look process with the presumption of release for those serving life-without-parole drug sentences. Make sentences retroactive where laws have changed. Support categorical clemencies to rectify past injustices.

It is time for bold action. We must not be satisfied with the norm, but work toward institutionalizing the demand for a standard of decency that values transformative change.

Nkechi Taifa is president of The Taifa Group LLC, convener of the Justice Roundtable, and author of the memoir,Black Power, Black Lawyer: My Audacious Quest for Justice.

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Race, Mass Incarceration, and the Disastrous War on Drugs

Every once in a while, a voice emanates from the chamber and echoes around the world: Vijay Prashad on Colombian President Petros speech at the U.N.

scar Muoz, Colombia, Lnea del destino or Line of Destiny, 2006.

ByVijay PrashadTricontinental: Institute for Social Research

Each year, in the last weeks of September, the worlds leaders gather in New York City to speak at the podium of the United Nations General Assembly. The speeches can usually be forecasted well in advance, either tired articulations of values that do not get acted upon or belligerent voices that threaten war in an institution built to prevent war.

However, every once in a while, a speech shines through, a voice emanates from the chamber and echoes around the world for its clarity and sincerity. This year, that voice belongs to Colombias recently inaugurated president, Gustavo Petro, whose briefremarksdistilled with poetic precision the problems in our world and the cascading crises of social distress, the addiction to money and power, the climate catastrophe and environmental destruction.

It is time for peace, Petro said. We are also at war with the planet. Without peace with the planet, there will be no peace among nations. Without social justice, there is no social peace.

Heriberto Cogollo, Colombia, Carnival Los Cabildos de Cartagena or The Carnival of Cartagenas Cabildos, 1999.

Colombia has been gripped by violence since it won its independence from Spain in 1810. This violence emanated from Colombias elites, whose insatiable desire for wealth has meant the absolute impoverishment of the people and the failure of the country to develop anything that resembles liberalism.

Decades of political action to build the confidence of the masses in Colombia culminated in a cycle of protests beginning in 2019 that led to Petros electoral victory. The new centre-left government has pledged to build social democratic institutions in Colombia and to banish the countrys culture of violence. Though the Colombian army, like armed forces around the world, prepares for war, President Petrotoldthem in August 2022 that they must now prepare for peace and must become an army of peace.

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When thinking about violence in a country like Colombia, there is a temptation to focus on drugs, cocaine in particular. The violence, it is often suggested, is an outgrowth of the illicit cocaine trade. But this is an ahistorical assessment.

Colombia experienced terrible bloodshed long before highly processed cocaine became increasingly popular from the 1960s onwards. The countrys elite has used murderous force to prevent any dilution of its power, including the 1948 assassination of Jorge Gaitn, the former mayor of Colombias capital of Bogot, that led to a period known asLa Violencia or The Violence.

Liberal politicians and communist militants faced the steel of the Colombian army and police on behalf of this granite block of power backed by the United States, which has used Colombia to extend its power into South America. Fig leaves of various types were used to cover over the ambitions of the Colombian elite and their benefactors in Washington. In the 1990s, one such cover was the War on Drugs.

Enrique Grau Arajo, Colombia,Prima Colazione a Firenze or Breakfast in Florence, 1964.

By all accounts whether of theUnited Nations Office on Drugs and Crimeor the U.S. governmentsDrug Enforcement Agency(DEA) the largest consumers of illegal narcotics (cannabis, opioids and cocaine) are in North America and Western Europe. A recent U.N.studyshows that cocaine use in the United States has been fluctuating and increasing after 2013 with a more stable trend observed in 2019.

The War on Drugs strategy, initiated by the United States and Western countries, has had a two-pronged approach to the drug crisis: first, to criminalise retailers in Western countries and, second, to go to war against the peasants who produce the raw material in these drugs in countries such as Colombia.

In the United States, for instance, almost 2 million people disproportionately Black and Latino are caught in theprison industrial complex, with 400,000 of them imprisoned or on probation for nonviolent drug offences (mostly as petty dealers in a vastly profitable drug empire).

The collapse of employment opportunities for young people in working-class areas and the allure of wages from the drug economy continue to attract low-level employees of the global drug commodity chain, despite the dangers of this profession.

The War on Drugs has made a negligible impact on this pipeline, which is why many countries have now begun todecriminalisedrug possession and drug use (particularly cannabis).

Dbora Arango, Colombia, Rojas Pinilla, 1957.

The obduracy of the Colombian elite backed by the U.S. government to allow any democratic space to open in the country led the left to take up armed struggle in 1964 and then return to the gun when the elite shut down the promise of the democratic path in the 1990s.

In the name of the war against the armed left as well as the War on Drugs, the Colombian military and police have crushed any dissent in the country. Despiteevidenceof the financial and political ties between the Colombian elite, narco-paramilitaries and drug cartels, the United States government initiated Plan Colombia in 1999 to funnel $12 billion to the Colombian military to deepen this war (in 2006, when he was a senator, Petrorevealedthe nexus between these diabolical forces, for which his family was threatened with violence).

As part of this war, the Colombian armed forces dropped the terrible chemical weapon glyphosate on the peasantry (in 2015, the World Health Organizationsaidthat this chemical is probably carcinogenic to humans and, in 2017, the Colombian Constitutional Courtruledthat its use must be restricted).

In 2020, the followingassessmentwas offered in The Harvard International Review: Instead of reducing cocaine production, Plan Colombia has actually caused cocaine production and transport to shift into other areas. Additionally, militarisation in the war on drugs has caused violence in the country to increase. This is precisely what Petro told the world at the United Nations.

Sandra Vsquez de la Horra, Chile, Los Vientos or The Winds, 2016.

The most recent DEAreportnotes that cocaine use in the United States remains steady and that deaths from drug poisoning involving cocaine have increased every year since 2013. U.S. drug policy is focused on law enforcement, aiming merely to reduce the domestic availability of cocaine. Washington willspend45 percent of its drug budget on law enforcement, 49 percent on treatment for drug addicts, and a mere 6 percent on prevention.

The lack of emphasis on prevention is revealing. Rather than tackle the drug crisis as a demand-side problem, the U.S. and other Western governments pretend that it is a supply-side problem that can be dealt with by using military force against petty drug dealers and peasants who grow the coca plant. Petroscryfrom the heart at the United Nations attempted to call attention to the root causes of the drug crisis:

According to the irrational power of the world, the market that razes existence is not to blame; it is the jungle and those who live in it that are to blame. Bank accounts have become unlimited; the money saved by the most powerful people on Earth could not even be spent over the course of centuries. The empty existence produced by the artificiality of competition is filled with noise and drugs. The addiction to money and to possessions has another face: the drug addiction of people who lose the competition in the artificial race that humanity has become. The sickness of loneliness is not cured by [dousing] the forests with glyphosate; the forest is not to blame. To blame is your society educated by endless consumption, by the stupid confusion between consumption and happiness that allows the pockets of the powerful to fill with money.

The War on Drugs, Petro said, is a war on the Colombian peasantry and a war on the precarious poor in Western countries. We do not need this war, he said; instead, we need to struggle to build a peaceful society that does not sap meaning from the hearts of people who are treated as a surplus to societys logic.

Fernando Botero, Colombia, La Calle or The Street, 2013.

As a young man, Petro was part of the M-19 guerrilla movement, one of the organisations that attempted to break the chokehold that Colombias elites held over the countrys democracy. One of his comrades was the poet Mara Mercedes Carranza (19452003), who wrote searingly about the violence thrust upon her country in her 1987 bookHola, Soledador Hello, Solitude, capturing the desolation in her poem La Patria or The Homeland:

In this house, everything is in ruins,in ruins are hugs and music,each morning, destiny, laughter are in ruins,tears, silence, dreams.The windows show destroyed landscapes,flesh and ash on peoples faces,words combine with fear in their mouths.In this house, we are all buried alive.

Carranza took her life when the fires of hell swept through Colombia.

A peace agreement in 2016, a cycle of protests from 2019, and now the election of Petro and Francia Mrquez in 2022 have wiped the ash off the faces of the Colombian people and provided them with an opportunity to try and rebuild their house.

The end of the War on Drugs, that is, the war on the Colombian peasantry, will only advance Colombias fragile struggle towards peace and democracy.

Vijay Prashadis an Indian historian, editor and journalist. He is a writing fellow and chief correspondent at Globetrotter. He is an editor ofLeftWord Booksand the director ofTricontinental: Institute for Social Research. He is a senior non-resident fellow atChongyang Institute for Financial Studies, Renmin University of China. He has written more than 20 books, includingThe Darker NationsandThe Poorer Nations. His latest books areStruggle Makes Us Human: Learning from Movements for Socialismand, with Noam Chomsky, The Withdrawal: Iraq, Libya, Afghanistan, and the Fragility of US Power.

This article is fromTricontinental: Institute for Social Research.

The views expressed are solely those of the author and may or may not reflect those ofConsortium News.

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The Irrational War on Drugs - consortiumnews.com

People of color experience discrimination at every stage of the criminal legal system.

The drug war has produced profoundly unequal outcomes across racial groups, manifested through racial discrimination by law enforcement and disproportionate drug war misery suffered by communities of color.

Many different communities of color bear the impact of the discriminatory enforcement of drug laws. This impact may vary across cities and regions. Nationwide, some of the most egregious racial disparities can be seen in the case of Black and Latinxpeople.

Higher arrest and incarceration rates for these communities are not reflective of increased prevalence of drug use, but rather of law enforcements focus on urban areas, lower income communities and communities of color.

Disparities in arrests and incarceration are seen for both drug possession law violations as well as low-level sales. Those selling small amounts of drugs to support their own drug use may go to jail for decades. This unequal enforcement ignores the universality of drug dependency, as well as the universal appeal of drugs themselves.

Watch DPA's Executive Director Kassandra Frederique speak abouthow drug policy and the Black Lives Matter movements intersectat our2015International Drug Policy Reform Conference.

We believe that the criminalization of people of color, particularly young Black people, is as profound a system of racial control as the Jim Crow laws were in this country until the mid-1960s.

This video from hip hop legend Shawn Jay Z Carter and acclaimed artist Molly Crabapple depicts the drug wars devastating impact on the Black community from decades of biased law enforcement.

The video traces the drug war from President Nixon to the draconian Rockefeller Drug Laws to the emerging aboveground marijuana market that is poised to make legal millions for wealthy investors doing the same thing that generations of people of color have been arrested and locked up for.

Misguided drug laws and draconian sentencing have produced profoundly unequal outcomes for communities of color.

Other racial groups are also impacted by the drug war, but the disparities with these highlighted groups are particularly stark and well documented.

Learn about how the drug war has affected Latinx communities.

Despite the recent emergence of fentanyl in the illegal market, lengthy sentences have been on the books for decades. They have not stopped the spread of fentanyl. At the federal level, pre-existing penalties range from a five-year mandatory minimum sentence for a first offense to life without parole for a third conviction. With the majority (75%) of those currently federally sentenced for fentanyl trafficking being people of color, these laws threaten to only exacerbateracial disparities in the criminal legal system.

See our fentanyl report to learn about health-centered solutions to the overdose crisis.

For noncitizens, including legal permanent residents, any drug law violation can trigger automatic detention and deportation often without the possibility of return.

People deported for drug law violations are sent back to their countries of origin, where they may no longer have any ties to family or community. They may lack basic survival needs like food, housing and health services, and may face serious threats to their security. They are usually barred from reentering the United States, often for life. The result is thousands of families broken and communities torn apart every year.

Irrational and racist logic rooted in the drug war falsely associates Latinx and Black immigrants with drug use and drug activity. As a result, the U.S. has created the largest immigrant exclusion, detention, and deportation structure in the world.

Learn more about how the drug war invades immigrant communities at UprootingTheDrugWar.org.

Punishment for a drug law violation is not only meted out by the criminal legal system, but is also perpetuated by policies denying child custody, voting rights, employment, business loans, licensing, student aid, public housing and other public assistance to people with criminal convictions.

These exclusions create a permanent second-class status for millions of Americans. Like drug war enforcement itself, they fall disproportionately on people of color.

The Drug Policy Alliance is committed to exposing discrimination and disproportionate drug law enforcement, as well as the systems that perpetuate them. We work to eliminate policies that result in the unfair criminalization of communities of color by rolling back harsh mandatory minimum sentences and by addressing on the rampant over-policing of these communities.

We advocate for:

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Race and the Drug War | Drug Policy Alliance