The War on Drugs has served, and continues to serve, as a powerful mechanism of mass incarceration and oppression in America. At every stage of the criminal justice process—from the geographical distribution of police, to stops and searches, to arrest, to pretrial detention, to sentencing, to post-conviction, to collateral consequences—communities of color, especially Black communities, disproportionately bear the brunt of the War on Drugs. Aggressive criminalization of certain drugs, targeted heavily against certain communities, is a method of oppressing, disrupting, and disempowering marginalized communities. John Ehrlichman, a domestic policy coach to Nixon, put it bluntly in a 1994 interview: “[B]y getting the public to associate the hippies with marijuana and the 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.”
The Anti-Drug Abuse Act of 1986 established a 100-1 sentencing disparity between powder cocaine and crack, and allocated to law enforcement and carceral systems three quarters of $1.7 billion in federal funds (Equal Justice Initiative, 2019). Two years later, Congress made crack the sole drug for which simple possession was a federal crime. In the following years, 15 states enhanced penalties for crack offenses. Black people were not just disproportionately punished because of disparate sentencing guidelines, but also because of discretionary decisions by prosecutors and judges—Black people convicted of crack offenses were sentenced to about double the amount of time as were white people convicted of crack offenses. These disparities persist. The federal crack-to-powder cocaine sentencing disparity, now 18-1, remains egregious. In 2016, Black people were still getting arrested at more than twice the rate that white people were for cocaine offenses. And while the opioid crisis has highlighted the need to treat drug addiction as a public health issue, that framing has not extended to other highly criminalized drugs—more black people were arrested for cocaine in 2016 than white people were arrested for heroin and other opioids, according to the Equal Justice Initiative.
A report from the ACLU analyzing marijuana arrests and race from 2010-2018 found that despite the increasing marijuana reform across the country, Black people are still 3.6 times more likely to be arrested for marijuana possession than are white people, despite similar rates of use. A similar report that the ACLU published seven years earlier, The War on Marijuana in Black and White, found roughly the same rate of disparity. While states that have passed decriminalization and legalization reforms have lower total marijuana arrest rates than states where marijuana is illegal, racial disparities persist in every state. In fact, since 2010, racial disparities in marijuana arrests have increased in 31 states. In Montana, West Virginia, Iowa, Kentucky, and Illinois, Black people are over seven times more likely than white people to be arrested for marijuana offenses. These disparities are maintained and aggravated by dramatically uneven enforcement of marijuana laws by police, with disproportionate police presence, searches, and arrests in communities of color. Without meaningful police reform, as well as reforms to address the ongoing consequences of the War on Drugs—re-sentencing and expungement, access to the legal marijuana industry, and robust data collection requirements—marijuana legalization will not mitigate these racial disparities.
- A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform, ACLU, April 2020.
- Racial Double Standard in Drug Laws Persists Today, Equal Justice Initiative, Dec. 9, 2019.
- Crack vs. Heroin: What will it take to end the inequity? Asbury Park Press, Dec. 5, 2019.
- NACDL Champion: From the President: Coming and Going – Racial Disparity in the Punishment and Profit of Marijuana, Dec. 2017.
- The Drug War, Mass Incarceration and Race (English/Spanish), Drug Policy Alliance, Jan. 2018.
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