Decarcerating America

by Ernest Drucker

  Since its passage, there has been an effort underway to repeal or destroy the Affordable Care Act (ACA). For those working to end the war on drugs and mass incarceration, this would be disastrous. Consider that close to half of the incarcerated population in U.S. jails and prisons are eligible for Medicaid coverage under the state expansion option provided by the ACA.75 Among people who cycle in and out of U.S. jails, untreated mental illness and addiction are disproportionately high, and unstable housing or homelessness are common.76 With Medicaid expansion, states can provide care coordination (case management) services to recipients with chronic health conditions, including mental illness and substance use disorders, as well as diabetes, hypertension, and asthma. Case management helps justice-involved individuals address their housing, legal, transportation, and other social needs, ensuring they have the capacity and stability to focus on their health issues, and reducing their risk of re-arrest as a consequence.

  Repealing the ACA and other attempts to roll back or erode the safety net should be resisted by the movements seeking to end the war on drugs and mass incarceration, because the safety net is essential for the systemic change we are seeking. Expanding access to healthcare—a core feature of any real safety net—relieves law enforcement, jails, and prisons of the de facto health and social service role they have been filling in the wake of a widespread opioid epidemic, a national housing crisis, and a historically underfunded community health system. What is needed is universal health care. Without constructing and bolstering a strong social safety net for people and strengthening the foundations of a just society—including, and especially, by ensuring health care for all people—the dominant system in place, that of criminalization, will remain as the primary catchall and social control mechanism for those who are poor, marginalized, or addicted.

  Centering Racial Justice and Racial Equity

  Given the origins of drug control in the United States, a new drug policy must make racial justice and racial equity a core objective. Writes Joanne Csete, a member of the Johns Hopkins–Lancet Commission on Drug Policy and Health, “[U.S. drug] policies have their roots in a racist and reactionary calculation.”77

  For drug policy reform and criminal justice reform alike to serve the goal of decarceration, it is imperative to address the ways in which racial discrimination and racial bias have been baked into existing drug policies, institutions, and systems for hundreds of years. From slavery to Jim Crow to redlining to the drug war and mass incarceration, the historical legacy of white supremacy, racial discrimination, and racialized violence profoundly shapes our criminal legal system and drug policies today.

  The use of criminalization as a means to target and control certain populations—particularly people of color—has been a centerpiece of U.S. drug policy since the late 1800s, when the first drug prohibition laws in the United States targeted the Chinese community on the West Coast, outlawing the opiate use that was part of that community’s culture.78 The first laws against cannabis were passed in the early 1900s in the American Southwest, in response to Mexican immigration, to expand law enforcement tools for managing populations of Mexican workers. The first cocaine laws were passed in the South, as a way to target and attack black dock workers in the 1920s. The genesis of these laws—criminalizing specific populations of people of color—shapes how these laws are understood and carried out today.79

  The United States formally launched the war on drugs as a global policy framework in 1914 with the passage of the Harrison Narcotics Control Act.80 While it was not called a “war on drugs” at that time, the goals of the Harrison Act and the role of the United States in enforcing it abroad and at home are historically seen as the starting point for a national political framework of the criminalization of drug use and the elevation of law enforcement as a dominant response to drug use.

  In 1971, the political framework developed in the earlier decades of the century was modernized when Nixon declared a war on drugs.81 Consistent with the objectives of criminalizing particular populations, and especially people of color, a close aide and legal counsel to Nixon, John Ehrlichman, told a Harper’s magazine reporter in 1994:

  You want to know what this was really all about? The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the anti-war left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and 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. Did we know we were lying about the drugs? Of course we did.82

  Nixon’s war has had its intended effect. Racially discriminatory enforcement of drug possession laws has produced profound disparities at all levels of the criminal justice system.83 Black people are far more likely to be criminalized for drug possession and use than white people, despite the fact that rates of reported drug use do not differ substantially among people of different races.84 African Americans experience discrimination at every stage of the criminal justice system and are more likely to be stopped, searched, arrested, convicted, harshly sentenced, and saddled with a criminal record for mere possession.85 Black people account for just 13 percent of the U.S. population but 30 percent of those arrested for drug law violations, nearly 40 percent of those incarcerated in state or federal prison for any drug law violations, and roughly 40 percent of those incarcerated in state prison for possession only.86

  A racial equity framework will help all advocates understand how to address this history and the laws and practices that derive from it. Ending racial disparity in the criminal justice system is an essential component of taking on racial inequity in society generally. It is a moral imperative.

  But for white people—including myself—taking on a racial equity framework can also simultaneously be an act of self-interest, in that it will help us to reclaim our humanity, which has been distorted, disfigured, and undermined through the system of white supremacy. In a policy context, such a framework will have protective effects for white people as well. Among the many problems with systemic racism in U.S. drug policies is how such policies also harm white people. Obviously, white people benefit from systemic racism in the drug war in a myriad of ways, including by not being the primary targets of criminalization—whites experience far lower rates of arrest and incarceration than people of color, even though drug use is relatively equal across racial categories. This is some of the fruit of white privilege.

  But this fruit does not prevent addiction or eliminate the risk of overdose deaths. Today, when the crisis of opioid overdose is gripping low-income and middle-class white communities around the country, the health care infrastructure that could intervene and save lives is inadequate and largely ineffective. Why? Through the drug war, society made a massive investment in the criminal legal system as the primary mechanism of drug policy, rather than invest adequately in a health-based infrastructure to respond to drug problems and addiction. Thus, that vital public health infrastructure, including effective treatment, isn’t there when Americans—of any race or ethnicity—need it. When it comes to drug use and addiction, Black folks are far more likely to go to jail or prison, and as a community do not generally receive the support or access to services necessary to address problems related to addiction. White folks, especially those who are poor and live in rural areas, are far less likely to go to jail or prison, but these days are too frequently headed to the morgue instead, because the health systems needed in every community have not yet been built. It’s another example of how white people’s collective buy-in to white supremacy is killing us—even those of us who despise and fight against racism.

  A viable new drug approach must incorporate policies and practices for identifying and reporting on racial disparities, as well as develop mechanisms to address and eliminate those disparities and
advance racial equity within institutions and systems. Both the drug war and mass incarceration serve the purpose of racial social control. Understanding and directly addressing racial inequity in criminal drug law enforcement equips advocates with one of the most important tools needed in efforts to end mass incarceration.

  But it is not enough to correct our policies going forward. It is also necessary to address past harm. Beyond driving mass incarceration, the practice of punitive prohibition has created a legacy of harm perpetrated over generations. It has institutionalized practices related to racial disparities far beyond drug enforcement. Thus, ending the drug war will not address systemic racial bias without explicit efforts to do so. To end the drug war and mass incarceration, it is essential to account for the generational harms caused to communities, especially communities of color.

  Many advocates, practitioners, and scholars have developed strategies for this kind of repair work. Frameworks for addressing systemically-perpetuated harm include truth and reconciliation, reparations, and restorative justice. Broadly speaking:

  Restorative justice acknowledges justice as honoring the inherent worth of all and is enacted through relationship. As such it affects all social structures. When something occurs that undermines the well-being of some, restorative justice provides a space for dialogue so that the humanity of all involved and affected can be restored and each person can once again become a fully contributing member of the community of which they are a part.87

  In practice, restorative justice is increasingly used in the criminal legal system as an alternative approach to addressing harm that has been caused by individuals (see Chapter 7 in this book, by Danielle Sered, for examples of how this is used in cases of violence). While restorative justice has been used in this more interpersonal context, it—alongside its aligned strategies of truth and reconciliation and of reparations—can provide advocates with a conceptual framework for addressing harms that have been wrought by the drug war and mass incarceration, and help white people find our full humanity through accountability.

  Cannabis policy reform serves here as an excellent example of where such practices of collective accountability and repair can be practically and tangibly utilized. Most of the new legalization laws include provisions that limit or exclude participation in the new multibillion-dollar industry by people who have criminal records for drug offenses. With comparatively few policy discussions about how new legal cannabis markets will address the implications of generations of racial discrimination, these new markets will almost surely serve to exacerbate racial disparities while enriching a majority group of white investors and businesspeople who, because they are white, were never the primary targets of the drug war in the first place. California’s legalization initiative was among the first in the country to specifically address this issue and includes provisions to address the harms that had been caused to communities of color by prohibition and by nearly fifty years of a failed, racist drug war. As with any law, the effectiveness of this provision can be proven only through careful implementation.

  The history of abuse, militarization, racism, and destruction of the war on drugs compels us to address it as a nation. We have to account for the fact that this war has harmed millions of people and disfigured our society. When political leaders say it’s time to end the drug war, they’re acknowledging that these policies and practice have caused harm. And the legacies of that harm live with us now, haunting our politics and distorting our policy debates, while continuing to impact millions of people through the collateral consequences of criminalization.

  Americans must be truthful with each other about the impact of this war on our families, communities, and country. The mechanisms to address this harm are not new—truth and reconciliation processes have been implemented successfully in other nations, including Rwanda, South Africa, and Peru. And in the United States, truth and reconciliation processes have been used to address traumatic events such as the murder of community organizers in North Carolina by KKK members in 1979.88

  In New York, the Center for Law and Justice, a thirty-year-old community organization led by the indomitable Dr. Alice Green, has called on New York State governor Andrew Cuomo to launch a truth and reconciliation commission for victims of the war on drugs.89 Such a commission would

  candidly and comprehensively [assess] the social, economic, and political impact of mass incarceration in New York State since 1970, including the extent to which the War on Drugs has impinged upon the civil and human rights of African Americans and Latinos, their families, and their communities; . . . [employ] a “truth and reconciliation” process to bring together law enforcement and the community at large to examine the impact of mass incarceration on those who have served time in prison, their families, and their communities; and . . . [provide] bold, systemic recommendations to halt the practice of mass incarceration in New York State, as well as redress grievances of those already harmed by this tragic policy.90

  Such a framework gives advocates working to end the U.S. war on drugs and the phenomenon of mass incarceration—both of which can trace their roots to slavery—a tool to address the historic harms wrought by these failed, racist systems. This is especially important as the legal cannabis industry takes shape. The institutions, systems, and practices of the drug war and mass incarceration cannot be transformed without us also confronting that history and seeking to make right by it as much as possible.

  Conclusion

  Securing real change is hard to achieve, often requires making tough compromises, and is almost always difficult to implement. Anyone who has worked to build social movements and change policies knows that the work is long, arduous, and difficult. The work to end mass incarceration and the systems that feed it—including the drug war—is among the most urgent human and civil rights challenges of our time. It’s my hope that these guidelines are useful toward that effort. The guidelines are not intended to be static or absolute. Applied together in an era of significant political upheaval and change, these guidelines will, I hope, help advocates, organizers, funders, and activists to advance substantive, system-oriented reforms, avoid being co-opted into the broken status quo, and contribute to building a movement that advances health, equity, and justice for everyone.

  Notes

  1. The author wishes to thank colleagues who read and provided feedback on this chapter, particularly Lorenzo Jones, Alexis Wilson Briggs, and Melody Lee.

  2. Approximately one in five people are incarcerated for a drug offense. Prison Policy Initiative, “Mass Incarceration: The Whole Pie 2016,” March 14, 2016, updated with a new 2017 version, https://www.prisonpolicy.org/reports/pie2016.html.

  3. Roughly half of people in federal prisons are serving time for a drug offense, and the number of people in state prisons for drug offenses today is ten times greater than it was in 1980. Sentencing Project, “Issues: Drug Policy,” 2017, http://www.sentencingproject.org/issues/drug-policy.

  4. The Urban Institute analyzed the statistics relating to individuals under correction control across the United States and focused on policy changes in fifteen states to create an online tool called the Prison Population Forecaster. The Forecaster allows the user to recommend a variety of sentencing reform proposals to achieve decarceration. What becomes immediately clear to the user is that policy reforms principally relating to drug offenses will not at all be sufficient to end mass incarceration. See Ryan King et al., “The Prison Population Forecaster: State Prison Population,” Urban Institute, 2015, http://webapp.urban.org/reducing-mass-incarceration.

  5. Bureau of Justice Statistics, Department of Justice, “Prisoners, 1925–81,” December 1982, https://www.bjs.gov/content/pub/pdf/p2581.pdf (198,061 in prisons in 1971); Bureau of Justice Statistics, Department of Justice, “Historical Corrections Statistics in the United States, 1850–1984,” December 1986, https://www.bjs.gov/content/pub/pdf/hcsus5084.pdf (129,189 in jails per 1970 census).

  6. Prison Policy Initiative, “Mass Inc
arceration.” The population of Atlanta, Georgia, was roughly 460,000 in 2015, the latest year for which data is available: U.S. Census Bureau, “Quick Facts, Atlanta City, Georgia,” https://www.census.gov/quickfacts/table/PST045215/1304000.

  7. Ashley Nellis, “The Color of Justice: Racial and Ethnic Disparity in State Prisons,” Sentencing Project, June 14, 2016, http://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons.

  8. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2012); Carl Hart, The High Price: A Neurologist’s Journey of Self-Discovery That Challenges Everything You Know About Drugs and Society (New York: HarperCollins, 2013); Johann Hari, Chasing the Stream: The First and Last Days of the War on Drugs (New York: Bloomsbury, 2016); Todd Clear, The Punishment Imperative: The Rise and Failure of Mass Incarceration in America (New York: New York University Press, 2013); National Academies of Science, The Growth of Incarceration in the United States: Exploring Causes and Consequences (Washington, DC: National Academies Press, 2014); L.B. Eisen et al., “How Many Americans Are Unnecessarily Incarcerated,” Brennan Center, December 9, 2016; Christopher J. Coyne and Abigail R. Hall, “Four Years and Counting: The Continued Failure of the War on Drugs,” Cato Institute, April 12, 2017.

  9. See, e.g., Drug Policy Alliance, “Background on New York’s Draconian Rockefeller Drug Laws,” http://www.drugpolicy.org/sites/default/files/FactSheet_NY_Background%20on%20RDL%20Reforms.pdf.

  10. See, e.g., Jazmine Ulloa, “Prop. 47 Got Thousands Out of Prison. Now, $103 Million in Savings Will Go Towards Keeping Them Out,” Los Angeles Times, March 29, 2017.