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Dr. Lawrence M. Schall Headshot

An American Tragedy: The War on Drugs

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I've written about a few of these subjects before: the obscene incarceration rate in America; Doug Blackmon's ground-breaking book, Slavery by Another Name, in which he describes the forced labor system in place for more than a century after the end of the Civil War.

But now, Michelle Alexander has just about blown my head to pieces with her New York Times bestseller, The New Jim Crow: Mass Incarceration in the Age of Colorblindness. Alexander documents the use of state power over the last three decades to imprison hundreds of thousands of African-American young men in the name of "The War on Drugs." In the past three decades, our penal population has risen from 300,000 to 2,000,000, and black men are heavily over-represented in that rise. Incarceration for drug offenses is responsible for two thirds of the increase in the federal prison population and one half of the rise at the state level. In 2012, there are more black men in prison in Illinois for drug offenses than there are in all public universities in the state. And lest you think we are locking up a bunch of drug kingpins, guess again. Eighty percent of drug arrests are for possession, not sale, and marijuana possession explains eighty percent of those arrests. The War on Drugs, it seems, is not what it is cracked up to be (pun intended).

No country has ever experienced our current rates of incarceration -- not China, Iran or Russia. We now have a greater percent of black men in jail than South Africa ever did. In a city like Washington, D.C., over 75% of young black men will serve time. Most of these are jailed for drug use or sale. And the higher rates of incarceration for blacks has NOTHING to do with rates of drug use or sales; almost all studies show similar usage across races. What's more, the increasing rates of incarceration can't be explained by increased crime rates. Rates have been declining while our prison population has been soaring. Well, then, Alexander asks, what might explain all this?

Alexander begins with this quote: "Jarvious Cotton cannot vote. Like his father, grandfather, great grandfather, and great, great grandfather, he has been denied the right to participate in our electoral democracy." Coincidence, one might ask? Not so much. His great great grandfather was a slave. Not much opportunity to vote there. His great grandfather was beaten by the Klan for trying to vote and his grandfather ran into the Klan as well. His father was excluded by a combination of poll taxes and literacy tests commonplace in the Jim Crow South. Jarvious is labeled a felon and the law prohibits him from exercising his most fundamental of American rights. Given all the rights and opportunities lost to him, one might even say he is no longer an American. Jarvious, of course, is not alone.

The War on Drugs was started in 1982 by President Reagan, but continued by every president since then, Republican and Democrat. President Clinton was one of the worst offenders. What exactly has this 30 year war accomplished? Ask our neighbors to the south (Mexico, Guatemala, Honduras...) whose countries are being destroyed by traffickers feeding the demand that comes from the USA. Today, many of them are demanding de-criminalization of possession of most drugs. At home, I certainly have not heard anyone claim victory in this war nor are there many people who would argue, including prison wardens, that prisons are anything but a shocking failure. 70 percent of those released from prison end up back there within three years. 35 percent of those on parole get recycled.

Alexander is a wonderful historian. Her story begins with the birth of slavery in America. The American idea of race, she writes, emerged as a means of reconciling our decision to enslave a group of human beings with the ideas of freedom being preached in the new colonies. You remember that whole idea of equality, liberty and justice for all (all white men, that is). She reminds us that the entire structure and content of our original Constitution was based on the effort to preserve slavery in the Southern colonies. Those colonies agreed to form a "perfect" union only upon the condition that slave ownership not be interfered with. Out of this agreement came federalism as we know it -- with a weak central government designed to protect the right of the Southern states to enslave African-Americans. To add insult to injury, black men were to be counted as three-fifths of a person so that the power of the South could not be broken. Remember this history when you listen to those who demand we follow the original intent of the Constitution today.

We all know that the Emancipation Proclamation and the end of the Civil War didn't change the status of the former slaves nearly as much as we learned in grade school. After the end of the Civil War, nine Southern states adopted a sophisticated set of Black Codes, criminalizing unemployment and then enacting convict laws allowing for the hiring out of prisoners to plantation owners and private companies (hence the name of Blackmon's book, Slavery by Another Name). With Reconstruction, however, change began to come. Due to the creation of public education open to blacks, literacy rates rose and through the passage and at least occasional enforcement of the 13th, 14th and 15th Amendments, 15% of all southern elected officials were black before 1877. Then the white South came back with a vengeance and Jim Crow was born. With federal troops removed from the South, enforcement of federal legislation designed to create a more equal and just society came to an end. The Klan rose again, as powerful as ever. A new set of "criminal offenses" were put on the books, including such acts as insulting gestures and making mischief. Jim Crow lived a long life, only coming to an end with the advent of WWII, and even then, it did not die all at once nor did it die a pretty death. Outrage and defiance once again met attempts by the federal government to end second-class citizenship for blacks in America. Tens of thousands of protesters belonging to the Civil Rights Movement were arrested; countless numbers were beaten; and, for certain, too many died.

Sometimes, one comes across statistics that just seem impossible to believe. In 1964, only 7% of African-American voters in Mississippi were registered to vote. In Alabama, that number was 19%, and in my own state of Georgia, we could brag about hitting 27%. Six years later, as a result of the work of the Civil Rights Movement, all those numbers had risen to over sixty percent. Today, when one hears concern about a new wave of voter registration laws being put into place, I'd encourage everyone to recall those numbers. We ought to be very concerned.

As the Jim Crow "movement" was passing away, a new one started, the "law and order movement." Many of the loudest law and order voices were the same ones that opposed the entire Civil Rights Movement. They argued that protesters didn't have the right to pick and choose what laws they violated, including laws sending blacks to the back of the bus or prohibiting them from drinking from the same water fountain as whites. President Nixon explicitly linked the increasing rate of crime in America with lawlessness of the Civil Rights Movement. Republican candidate Barry Goldwater warned that a vote for Lyndon Johnson was an invitation to have mobs running the streets. A new American rhetoric was developing, one that steered clear of race in explicit terms, but was clearly racially polarizing.

With the hyperbolic attention being paid to enforcing the law and restoring order, it is no surprise that money followed the politics. With Reagan's announcement of the War on Drugs in 1982, anti-drug budgets soared. The FBI's anti-drug funding rose from $8 million to $85 million. The Department of Defense experienced a similar growth of funds, from $33 million to over one billion. And funding for the DEA, of course, rose from $86 million to over a billion. What do you imagine happened with funding for drug education and treatment programs? It dropped precipitously. Brilliant.

What's often surprising to me is not that America has faced really difficult moments throughout its history, but rather that our reaction to these moments is often inexplicable. In this case, we reacted with an era of get-tough laws, three strikes and you're out legislation, and mandatory sentences that confounded even the judges required to impose them. People were sent to jail for decades, or years, for stealing something worth no more than a few dollars, and then we spent upwards of $50,000 a year to keep them there, year after year. If possible, what's even more appalling was our decision to fill our prisons with men and women accused only of possessing drugs.

I've caught an episode of Perry Mason in my day and more recently, a handful of episodes of Law and Order. I was also an attorney years ago and have a up-close and personal view of how the law works off the TV screen. Almost no one accused of a crime, especially those who are poor, go to trial. If even one in five defendants took their cases to trial, the system would completely collapse. The entire criminal justice system in America is dependent on defendants pleading guilty to a lesser charge to avoid horribly harsh sentences. The caseloads of public defenders are impossibly high and the fees allowed impossibly low. In Virginia, for example, the total allowable fee for a case where the defendant can go to jail for up to 20 years is $428. Do you know what a lawyer can do for $428? Maybe meet his client once and then show up in court to accept a plea agreement. That's one reason there are so many pleas, but another is the impact of mandatory minimum sentences. Those sentences have tremendous value to a prosecutor in negotiating a plea deal.

In America, the plain truth is that who ends up in jail is the result of who gets arrested. And who do you think gets arrested for drug offenses which are now the majority of all arrests? Alleged black and Latino drug possessors. Some of those arrested are guilty, for sure. Maybe even most. But we all know one could enter any majority white high school these days and arrest a whole lot of young white men for drug possession. Some of them would be guilty, for sure. Maybe even most. The point Alexander makes is that, given the way our justice system works, the decision about who ends up in jail is totally dependent on who gets arrested and charged, not who is actually violating the law.

There are so many insidious parts of this whole story, but let's return to the tale of Jarvious Cotton. While there are two million people in prison today, there are over seven million under the control of the correctional system. Among the consequences of a guilty plea or a conviction for drug possession is the loss of the right to vote. 48 states and the District of Columbia prohibit inmates from voting and most continue to withhold that right after release. Like our astonishing rate of incarceration, this is not the norm in the rest of the democratic world. But because mass incarceration has become so normalized in our country, the withholding of the most basic of human and democratic rights -- the right to vote -- has also become the norm. No one even challenges this idea anymore -- that an American can be denied the right to participate in our electoral system because at some point he violated some law. Why would we have created a system like this, unlike any other in the world? Consider if you will the presidential elections of 2000 and 2004 and the impact just another one million voters would have had. I'd suggest that's one plausible reason.

So, here we are -- a few months away from a presidential election. We have just endured what has seemed like an endless nominating process to choose the Republican candidate and President Obama is already campaigning relentlessly for re-election. And what issues are we debating and what stories have consumed the 24-hour new cycle? This election is supposed to be about the economy and while I have my own preference for which party's approach will help the most, the truth of the matter is that our country's economic issues have little to do with who is president. Maybe my taxes might be a little higher or lower depending on the result of the election, but either way, will that fix the massive global economic issues at hand? How about contraception and the price of gasoline? Please. Meanwhile, men and women continue to die and be maimed in an unwinnable war, our public education system is in shambles, and millions of poor Americans needlessly languish in prison. And yet no one, and I mean no one, even bothers to talk about these tragedies. That is the ultimate tragedy.