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Analysis

Race, Mass Incarceration, and the Disastrous War on Drugs

Unravelling decades of racially biased anti-drug policies is a monumental project.

  • Nkechi Taifa
May 10, 2021
View the entire Punitive Excess series

This essay is part of the Bren­nan Center’s series examin­ing the punit­ive excess that has come to define Amer­ica’s 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 Nixon’s domestic policy advisor John Ehrlich­man revealed 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 could­n’t 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 1984 Compre­hens­ive Crime Control and Safe Streets Act elim­in­ated parole in the federal system, result­ing in an upsurge of geri­at­ric pris­on­ers. Then the 1986 Anti-Drug Abuse Act estab­lished mandat­ory minimum senten­cing schemes, includ­ing the infam­ous 100-to-1 ratio between crack and powder cocaine sentences. Its expan­sion in 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 — the Viol­ent Crime Control and Safe Streets Act of 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 crack­–­powder 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 soci­ety’s stand­ard of decency. Why haven’t they? Most flab­ber­gast­ing to me was the Supreme Court’s 1991 decision assert­ing 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 Court case that 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, prosec­utor’s 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 2008 Second Chance Reentry bill and 2010 Fair Senten­cing Act, which reduced the dispar­ity between crack and powder cocaine. I smiled when the 2012 Supreme Court ruling in Miller v. Alabama came out, which held that mandat­ory life sentences without parole for chil­dren viol­ated the Eighth Amend­ment’s prohib­i­tion against cruel and unusual punish­ment. In 2013, I was delighted when Attor­ney General Eric Holder announced his Smart on Crime policies, focus­ing federal prosec­u­tions on large-scale drug traf­fick­ers rather than bit play­ers. The follow­ing year, I applauded Pres­id­ent Obama’s exec­ut­ive clem­ency initi­at­ive to provide relief for many people serving inor­din­ately lengthy mandat­ory-minimum sentences. Despite its fail­ure to become law, I celeb­rated the Senten­cing Reform and Correc­tions Act of 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 2018 First 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.