"If you are black, you were born in jail"
Malcolm X - April 12 1964

Criminalizing Blackness

Reality based broadcasts have spread racist discourse on blackness, by fabricating a fallacious link between blackness and criminality. By systematically representing blacks as criminals on television, the media act as a reinforcing agent of structural limitations of black people's agency. The mediaÕs systematic representation of blacks as criminals has ingrained and reinforced racist stereotypes in society. This hegemony, or ideological control, has resulted in the normalization of criminality being perceived as an inherent trait of blackness.

Ta-Nehisi Coates noted that "... an opioid epidemic among mostly white people is greeted with calls for compassion and treatment, as all epidemics should be, while a crack epidemic among mostly black people is greeted with scorn and mandatory minimums."

Although drug sales and use are similar across racial lines, communities of color have borne the brunt of drug law enforcement — they are more likely to be stopped, searched, arrested, convicted, and sentenced to longer sentences than their white counterparts. The disparity in federal sentences associated with crack vs. powder cocaine is one area where this inequality has been most glaring. Beginning in the 1980s, users of crack cocaine, disproportionately African Americans and other people of color, received sentences 100 times harsher for the same amount of drugs than users of powder cocaine, leading to disparate and lengthier sentences for members of these communities.

Despite efforts made by the Department of Justice, there is still a lack of an official national system to track killings committed by law enforcement officials. Federal authorities commented that the main reason for this problem is that the 18,000 police departments and law enforcement agencies in the United States are not obliged to report these types of incidents.

In the absence of a public national system to track cases of killings by police officers, the Guardian newspaper’s “The Counted” database identified a total of 1,136 people killed by the police in 2015, of whom 302 were African Americans. African Americans were killed at twice the rate of white, Hispanic and Native Americans. In addition, about 25 per cent of the African Americans killed were unarmed, compared to 17 per cent of the white people.

The Washington Post database of police shootings registered 990 people shot dead in 2015, of whom 38 were unarmed African Americans. Excessive and disproportionate use of force against African Americans also includes the use of tasers and heavy-handed assaults by law enforcement officers, which also have debilitating consequences for victims; there is no national system to track such incidents, either.

Zero tolerance policies and heavyhanded efforts to increase security in schools have led to the excessive penalization and harassment of African American children through racial profiling. African American children are more likely to face harsh disciplinary measures than white children and are being pushed out of school into the criminal justice system — a phenomenon that has been described sadly as the “school to prison pipeline”.

Although crime rates in the United States have been decreasing for the last 20 years, the federal and state prison and local jail population has soared to over 2.2 million people, with another 7 million on parole or probation. African Americans are overrepresented in the penitentiary system, accounting for 36 per cent of sentenced federal and state prisoners. African American women constitute 21 per cent of the imprisoned female population. The incarceration rate for African American males is 5.9 times higher than the rate for white males, while the rate for African American females is 2.1 times higher than the rate for white females.

The Sentencing Project has underscored that if current trends continue, one of every three black American males born today can expect to go to prison in his lifetime. The “War on Drugs” had a devastating impact on African Americans and that mass incarceration was considered a system of racial control that operated in a similar way to how Jim Crow laws once operated.

African Americans face a pattern of police practices which violate their human rights: they are disproportionately targeted for police surveillance, and experience and witness public harassment, excessive force and racial discrimination. Due to racial bias, there is fear of approaching the police for help and there is also a failure on the part of the State to provide protection. The Working Group heard testimonies from African Americans based on their experience that from an early age they are treated by the State as a dangerous criminal group and face a presumption of guilt rather than of innocence. The rapid negative escalation of situations and the excessive use of force disproportionately used on African Americans demonstrates this concern.

In 1970, Congress overhauled the federal drug control laws. Included in this overhaul was a general repeal of the mandatory minimum sentences for drug offenses. The authors of the Comprehensive Drug Abuse Prevention and Control Act of 1970 expressed a general concern that "increasingly longer sentences that had been legislated in the past had not shown the expected overall reduction in drug law violations." Moreover, there was general concern that "severe drug laws, specifically as applied to marihuana, have helped create a serious clash between segments of the youth generation and the Government" and have "contributed to the broader problem of alienation of youth from the general society." As a result, the 1970 Act revised the penalty structure of federal drug law. "The main thrust of the change in the penalty provisions [was] to eliminate all mandatory minimum sentences for drug law violations except for a special class of professional criminals."

In the 1980s, Congress made "determinate sentencing," which had been gaining acceptance in the states, the center of federal sentencing policy. Congress questioned the legitimacy of indeterminate sentences and early parole release, particularly the ability of prison to rehabilitate offenders and of parole boards to identify offenders ready for release. At the same time an emerging consensus concluded that criminal laws would better help control crime if sentences were more certain, less disparate, and sufficiently punitive.

The Anti-Drug Abuse Act of 1986 created the basic framework of mandatory minimum penalties that currently apply to federal drug trafficking offenses. The 1986 Act established two tiers of mandatory prison terms for first-time drug traffickers: a five-year and a ten-year minimum sentence.

The media played a large role in creating the national sense of urgency surrounding drugs, generally and crack cocaine specifically. Time called crack the "Issue of the Year" (September 22, 1986). Newsweek called crack the biggest news story since Vietnam and Watergate (June 16, 1986).

The 1986 Act initiated the federal criminal law distinction between "cocaine base" and other forms of cocaine. The thresholds triggering the ten-year penalty – five kilograms of powder cocaine and 50 grams of cocaine base – create the 100-to-1 quantity ratio. Crack's unique distribution pattern, in combination with the 100-to-1 quantity ratio, can lead to anomalous results in which retail crack dealers get longer sentences than the wholesale drug distributors who supply them the powder cocaine from which their crack is produced.

In order to receive a five-year mandatory minimum sentence, a crack dealer must traffic only in five grams of crack. Five grams of crack represents 10-50 doses of crack, with an average retail price of $225-$750 for the total five grams. In contrast, a powder cocaine dealer must traffic in 500 grams of powder cocaine in order to receive the same five-year sentence. The 500 grams of powder cocaine represent 2,500-5,000 doses, with an average retail price of $32,500-$50,000 for the 500 grams.

The FBI's Uniform Crime Reports estimate that state and local law enforcement agencies made almost 1.1 million arrests for drug abuse violations in 1990. During the same period, DEA made 21,799 arrests. In 1993, Whites account for 30.8 percent of all convicted federal drug offenders, Blacks 33.9 percent, and Hispanics 33.8 percent. Sentencing patterns for some drugs show high concentrations of a particular racial or ethnic group. Most strikingly, crack cocaine offenders are 88.3 percent Black. Conversely, methamphetamine offenders are 84.2 percent White. Powder cocaine cases involve sizeable proportions of Whites (32.0%), Blacks (27.4%), and Hispanics (39.3%).

After declining for several years, the black teenage homicide rate began soaring upward in 1987. That year was not marked by any sudden increase in the availa:bility of guns (sales were flat). What did happen in 1987 was that the drug war suddenly intensified, at the same time that drugs themselves became more dangerous.

The 1987 cocaine overdose death of college basketball star Len Bias and the popularization of crack cocaine produced an unprecedented media and political determination to fight a "drug war" in the United States.

Some drug policy scholars trace the sudden upsurge in violence to the pharmacological effects of crack/cocaine. They note that crack (like PCP and alcohol, but unlike hemp and heroin), often reduces inhibitions against violence and stimulates aggressive behavior. Without denying the destructive effect of crack, other scholars trace the roots of the violence to governmental drug policy.

Ecunomist Sam Staley argues that the war on drugs and the criminalization of the drug trade generate levels of violence that make the inner city unlivable, with levels of violence far higher than would occur in a world where drugs were controlled by means other than the criminal law. Since drug dealers are likely to be carrying large sums of money, they are at serious risk of robbery. Since they cannot rely on the police for protection, they must, to survive, protect themselves. When drug dealers engage in commercial transactions with each other, there is no Uniform Commercial Code afid I\tate district court for resolving disputes about the quality of goods sold. Disgruntled buyers, having no other means of redress, may resort to violence.

Similarly, addicts who sell drugs often end up consuming the drugs which should have been sold; higher-level dealers having no legal means of handing salespersons who stole the merchandise with which they were entrusted; because violence often results. Other drug users buy goods on credit, but fail to pay their debt. Since the seller has no lawful means of debt collection, violence again may result. lsl In addition, when disputes are settled violently, they are often settled in the most vicious manner possible, for acquiring a reputation for being willing to "exert maximum force" may assist the resolution of future disputes.

The tendency of current drug laws to promote violence can be seen in a study of cocaine-related homicides in New York. Eighty-seven percent of the homicides were related to territorial disputes, debt collection, or cocaine deals gone bad. Only 7.5% of the homicides were related to the pharmacological effects of drugs.

The "war on drugs" lived up to its name by producing a genuine war in inner-city America.