Maria Struzberg 1

The first anti-opium laws in the 1870s were directed at Chinese immigrants. In the early 1900s,

anti-cocaine laws were directed at black men in the South and anti-marijuana laws, in the

Midwest and the Southwest were directed at Mexicans. Present day, Latino and especially black

communities are still struggling with unjust drug enforcement and sentencing practices, while

white communities have lenient punishments and drug treatment programs easily accessible to

them (“A Brief History of the Drug War”). Racial and sentencing disparity in the war on drugs

violates the due process and equal protection clause of the fourteenth amendment. Therefore,

drug treatment and prevention programs should be made more accessible to poor black

communities instead of mass incarceration.

After President Nixon’s declaration of a “war on drugs” in 1971, federal drug control agencies

were known and strictly enforced with mandatory sentencing. The expansion of the drug war

continued with Ronald Reagan’s presidency and sparked zero-tolerance policies with

skyrocketing rates of incarceration that plagued the mid-late 1980s. The number of people

incarcerated for nonviolent drug law offenses increased from 50,000 in 1980 to over 400,000 by

1997. Still, these alarming rates didn’t prompt Clinton to begin reform; instead, he rejected a

U.S. Sentencing Commission recommendation to eliminate the disparity between crack and

powder cocaine sentences (“A Brief History of the Drug War”).

Societal Racism and the public’s hysteria is as much to blame as the politicians behind the Crack

Statute are. People’s social beliefs about drugs and the people who use them help shape policy

decisions. Crack and powder cocaine was a way for the government to legally put away

minorities and not white people, for initially the same crime. This could not have been done

without the manipulation of racial stereotypes to make drugs something to be feared. Nixon was

successful in achieving his goal to link selected drugs with a minority and establish harsh
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criminal sanctions for those selected drugs. Law enforcement began to show biased portrayals of

drug dealers as black, powerful, and unafraid of legal authority. Black users were also negatively

named as hopelessly addicted, dangerous, and giving birth to crack babies. The start of panic

initiated from“white” America concerned that these dangerous black drug dealers and users

would spread crack from the ghetto to their communities (Provine).

Katharine Q. Seelye, from the New York Times, stated that “when the nation’s long-running war

against drugs was defined by the crack epidemic and based in poor, predominantly black urban

areas, the public response was defined by zero tolerance and stiff prison sentences. But today’s

heroin crisis is different. While heroin use has climbed among all demographic groups, it has

skyrocketed among whites; nearly 90 percent of those who tried heroin for the first time in the

last decade were white.” We as people should have had the same empathetic approach to black

people caught up in their addiction to crack. “One cannot help notice that had this compassion

existed for African-Americans caught up in addiction and the behaviors it produces, the

devastating impact of mass incarceration upon entire communities would never have happened.”

Said Kimberlé Williams Crenshaw, who specializes in racial issues at Columbia and U.C.L.A.

law schools. This is a prime example of the racial and sentencing disparity in the United States.

White heroin users are portrayed as needing saving and that their addiction is a disease that needs

attention. What makes them less dangerous than a black person addicted to crack, the color of

their skin? Black communities were intentionally disrupted with zero tolerance, white

communities were involved in a $133 million proposal to expand access for drug treatment and

prevention programs discussion with President Obama.

Our constitution prohibits sentencing courts from considering factors that could lead to

unwarranted discrimination. Courts have forbidden consideration of race, national origin, or

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gender in sentencing based on the Due Process Clause, and/or on the Equal Protection Clause of

the 14th amendment (Hessick & Hessick 55). Even with these restrictions, Edward Clary, a black

male, was arrested for possession with intent to distribute 67.76 *770 grams of crack “cocaine

base” and challenged the constitutionality of the crack statute. Clary claimed that his equal

protection rights guaranteed by the Fifth and Fourteenth Amendment were violated because of

the sentence enhancements for cocaine base and not for cocaine powder. Clary’s defense was

that the penalty differences have a disproportionate impact on blacks because blacks are more

likely to possess cocaine base than whites who are more likely to possess cocaine powder. This

is a direct violation of his equal protection rights because longer sentences for possession of

cocaine base than for the same amount of cocaine powder doesn’t treat a similarly situated

defendant the same way. The drug is the same, the crime is the same, the person is the same. The

only difference is one person has a mandatory minimum sentence of ten years for possession and

distribution of crack cocaine. A person charged with possession and distribution of powder

cocaine would get the same sentence of 10 years of 5000 grams of powder cocaine! This is the

same drug, but one form is penalized 100 times more than the other. The Due Process Clause of

the Fourteenth Amendment rules that when one group of people violates the same type of laws as

other people similar to them, they should be punished in the same way. (United States v. Clary,

846 F. Supp. 768 E.D. Mo. 1994)

In congress’s attempt to disprove Edward Clary’s claim, the Government expressed that crack is

considered to be more dangerous than powder because of its highly addictive nature,

affordability, and increasing popularity. Dr. Robert Byck, Professor of Psychiatry and

Pharmacology of the Yale University School of Medicine, testified at the Crack Cocaine Hearing

*792 that there was no reliable evidence at that time that crack cocaine was more addictive or
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dangerous than powder cocaine. The crack statute has been directly responsible for incarcerating

nearly an entire generation of young black American men for extensive periods. We need to

invalidate the one-sided punishments for crack among black citizens and enforce equal justice is

for all.

Other than mass incarceration and disruption of communities, another consequence of the drug

war is neglect of drug treatment programs. According to Peter Wanger, executive director of

Prison Policy Initiative, “nonviolent drug convictions are a defining characteristic of the federal

prison system.” A key solution for mass incarceration for drug offenses would be treatment

instead of imprisonment for non-violent crimes. Instead of sending individuals to prison where

the appropriate treatment won’t be received and they will be subject to committing more

dangerous crimes, Congress must face the real issue; substance abuse is a disease no matter what

type of person is addicted (“Treatment Not Incarceration”). The racial stereotypes must be

broken down. Crack, heroin, white, black, all deserve the same treatment.

In conclusion, drug treatment and prevention programs should be made more accessible to poor

black communities instead of mass incarceration. Racial and sentencing disparity violates the

due process and equal protection for all. Following the war on drugs to its underlying

foundations uncovers a more extensive area of harsh indictments and a goal of mass

imprisonment to hurt and disrupt minority based communities. Many politicians today admit to

smoking marijuana, and even using cocaine when they were younger. During Michael

Bloomberg’s 2001 mayoral campaign, he stated whether he had ever smoked marijuana, "you bet

I did – and I enjoyed it." Barack Obama also admitted to his prior cocaine and marijuana use:

"When I was a kid, I inhaled frequently." The social stigma needs to come to an end, drug use is

not our enemy, the war is over.

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Work Cited

“A Brief History of the Drug War.” Drug Policy Alliance www.drugpolicy.org/issues/brief-

history-drug-war. 28 Nov. 2018

Hessick, Carissa Byrne, and F. Andrew Hessick. “Recognizing Constitutional Rights at

Sentencing.” California Law Review, vol. 99, no. 1, ser. 2. 28 Feb. 2011,

doi:https://doi.org/10.15779/Z389T22.

Provine, Doris Marie. “Race and Inequality in the War on Drugs.” Annual Reviews, 4 Aug. 2011,

www.annualreviews.org/doi/full/10.1146/annurev-lawsocsci-102510-105445. 28 Nov.

2018.

Seelye, Katharine Q. “In Heroin Crisis, White Families Seek Gentler War on Drugs.” The New

York Times, 30 Oct. 2015, www.nytimes.com/2015/10/31/us/heroin-war-on-drugs-

parents.html. 28 Nov. 2018

“Treatment Not Incarceration.” Drug Policy Alliance, www.drugpolicy.org/new-

mexico/treatment-not-incarceration. 28 Nov. 2018

“United States v. Clary, 846 F. Supp. 768 (E.D. Mo. 1994).” Justia Law,

https://law.justia.com/cases/federal/district-courts/FSupp/846/768/1687914/. 28 Nov.

2018

Wagner, Peter, and Bernadette Rabuy. “Mass Incarceration: The Whole Pie 2017.” Prison Policy

Initiative, 14 Mar. 2017, www.prisonpolicy.org/reports/pie2017.html. 28 Nov. 2018