by Michael Barbella
At a press conference in 1971 President Richard M. Nixon declared that drug abuse was “public enemy number one” in the United States.
“In order to fight and defeat this enemy it is necessary to wage a new all-out offensive,” President Nixon said. The militaristic theme was kept up throughout the speech. President Nixon also talked about the “prevention of new addicts, and the rehabilitation of those who are addicted,” however, the media picked up on the war theme and the “war on drugs” was born. Headlines the next day, such as one from the Chicago Tribune—Nixon Declares War on Narcotics in US—echoed the theme.
The Nixon administration increased federal funding for anti-drug education, drug abuse treatment, rehabilitation, and enforcement. It also created new government agencies, including the Special Action Office for Drug Abuse Prevention and the Drug Enforcement Administration (DEA). The Nixon administration proposed strict punishments for drug-related crimes, including mandatory prison sentences.
Under the administration of President Jimmy Carter, who was an advocate for decriminalizing marijuana, also known as cannabis, the tide on the “war on drugs” turned for a bit. In a 1977 message to Congress, President Carter said, “Penalties against possession of a drug should not be more damaging to an individual than the use of the drug itself.” As a result, 11 states decriminalized marijuana possession even though it remained classified federally as Schedule I drug, which is the most restrictive drug category, on par with heroin.
The “war on drugs” was amplified during President Ronald Reagan’s administration, which appropriated $1.7 billion toward the drug war effort. President Reagan also signed into law the 1986 Anti-Drug Abuse Act, which established 29 new mandatory minimum sentences for drug offenses, including marijuana possession. A mandatory minimum sentence is one that is imposed automatically with no leeway for a judge to take a defendant’s individual situation into account when it comes to sentencing.
Racial lines drawn
The 1986 Anti-Drug Abuse Act was criticized for its racist undertones, as it promoted disproportionate cocaine sentencing guidelines for crack cocaine and powder cocaine even though it is the same drug. The Act created longer prison sentences for anyone convicted of using crack cocaine, and shorter sentences for anyone convicted of using powder cocaine. For example, a person who had five grams of crack cocaine in their possession would trigger a five-year prison sentence. A person would need to be in possession of 500 grams of powder cocaine to trigger the same sentence, a 100-to-1 ratio. Similarly, possession of 5,000 grams of powder cocaine and 50 grams of crack cocaine commanded the same 10-year prison sentence.
A 2006 American Civil Liberties Union (ACLU) report looked back at the consequences of 20 years of the Anti-Drug Abuse Act. The report revealed that while African Americans were at a disadvantage before the more stringent sentencing guidelines took effect, the disparity was worsened after the Act’s passage. The average federal drug sentence for African Americans before the 1986 law was 11% higher than for whites. By 1990, the disparity had risen to 49%, according to the ACLU report.
“There is good evidence that the war on drugs has had a disproportionate impact in Black and Brown communities, even though rates of drug use are no higher among those communities than in white communities,” says Thea Johnson, a professor at Rutgers Law School in Camden who is an expert in criminal procedure. “The drug laws themselves are discriminatory. For decades, crack, which was more common in Black communities, was punished more harshly than powder cocaine, which was more common in white communities, even though they are the same drug.”
Focus on treatment, not jail
In 2010, the Fair Sentencing Act (FSA) was signed into law. The FSA reduced the penalties for crack cocaine offenses, producing an 18-to-1 crack-to-powder drug quantity ratio. In addition, the FSA eliminated mandatory minimum sentences for simple possession.
“There is still a disparity in sentencing between crimes involving crack and powder cocaine, but it is smaller,” says Professor Johnson. “There is no logical reason to have any disparity between the crimes involving one versus the other. Further, the enforcement of all drug laws has fallen much more harshly on communities of color, even though the rates of committing the offenses is no different from white communities.”
The disparity has resulted in greater incarceration rates for Black Americans. African Americans make up 13% of the U.S. population but account for 37% of those incarcerated, according to the Prison Policy Initiative, an independent research and advocacy organization examining mass incarceration and how it undermines the nation’s welfare.
“One major problem at the federal level has been the sentencing guidelines,” says Jonathan Hafetz, a professor at Seton Hall Law School and a constitutional law expert. “While the guidelines minimized judicial discretion, which has the potential to lead to harsher treatment of Black defendants, the guidelines gave far more power to prosecutors and created the potential for significantly longer sentences for everyone. The drug laws need to be modified so the focus for non-violent drug crimes is on treatment, not lengthy jail terms. More funding needs to go into prevention and community service, and there needs to be overall criminal justice reform to reduce incarceration.”
Todd. R. Clear, a criminal justice professor at Rutgers Law School in Newark, supports ending drug-related prison terms altogether.
“We should eliminate incarceration as a legal option for drug-related crime, legalize most substances and regulate their use, and provide treatment as a part of all health insurance services,” Professor Clear says. “We should expunge criminal records for drug crimes so that they do not follow a person for a lifetime. We have learned that treating drug abuse as a public health problem and dealing with drug markets through regulation, while far from perfect, has much less problematic outcomes than the current ‘war’ mentality.”
According to Ndjuoh MehChu, a professor at Seton Hall Law School who teaches civil rights law, the war on drugs should have never happened.
“Punishment is no answer to addiction. Countless lives and communities have been destroyed and millions of tax dollars squandered on the assumption that punishment can do the work of treatment and rehabilitation,” Professor MehChu says. “A more sensible approach—as we have seen unfold with the opioid crisis for reasons that further speak to the racial dimensions of the war on drugs—recognizes that drug addiction is a public health crisis.”
Tide changing
The Prison Policy Institute estimates that one in five people—some 20%—are incarcerated in the U.S. on drug charges. In addition, the U.S. has the largest incarceration rate worldwide despite being only 5% of the world’s population, according to the International Centre for Prison Studies.
In 2023, NBC News reported that the U.S. spent $39 billion in 2022 to fight the war on drugs and more than a trillion dollars on the fight since it began in 1971.
There is some evidence that the tide might be shifting in the drug war, at least for marijuana use and possession. As of 2023, marijuana has been legalized for medical use in 38 states and for recreational use in 24 states, according to the National Conference of State Legislatures. Marijuana remains illegal at the federal level; however, that may be changing.
In May 2024, the U.S. Justice Department proposed a rulemaking change to move marijuana from a Schedule I drug to a Schedule III drug. According to the Drug Enforcement Administration, a Schedule III drug is one “with moderate to low potential for physical and psychological dependence.” This is the first step in the process necessary to reschedule a controlled substance. It will be followed by a notice to the public, an opportunity for the public to comment, as well as an administrative hearing.
Discussion Questions
- How did the “war on drugs” disproportionately impact people of color?
- Based on the information in the article, do you think the “war on drugs” has been a success or failure? Explain your answer.
- What do you think the impact would be if, as Professor Clear suggests in the article, there was a focus on decriminalization of drugs and treatment of addiction? Explain your answer.
This article originally appeared in Respect’s Special Issue: Challenging Racism from Past to Present.