Race, Discrimination, and Illegal Drug Policies

William J. Stuntz was a distinguished professor of law at Harvard University. Just prior to his death he assembled a book describing the failings of our justice system: The Collapse of American Criminal Justice. His description of the defects in our legal processes is both fascinating and frightening. One of the topics Stuntz focused on was the rise of legal discrimination against blacks.

"....discrimination against both black suspects and black crime victims grew steadily worse—oddly, in an age of rising legal protection for civil rights. Today, black drug offenders are punished in great numbers, even as white drug offenders are usually ignored. (As is usually the case with respect to American crime statistics, Latinos fall in between, but generally closer to the white population than the black one.) At the same time, blacks victimized by violent felonies regularly see violence go unpunished; the story is different in most white neighborhoods."

Stuntz tells us that there are roughly 30 million users of illegal drugs in our country; far more than all the prisons conceivably could hold and far more than the number of law enforcement personnel who might apprehend them. In such a situation, one should be asking whether or not we are writing some really dumb laws.

Stuntz is more concerned with the fact that laws that define a large fraction of the population to be criminals invite—necessitate—discrimination in enforcement.

"Discretion and discrimination travel together. Ten percent of black adults use illegal drugs; 9 percent of white adults and 8 percent of Latinos do so. Blacks are nine times more likely than whites and nearly three times more likely than Latinos to serve prison sentences for drug crimes."

Is this bias in law enforcement due to racism? Carl Hart tells us that our drug laws have been informed not by scientific data but by false, racially-motivated stereotyping. Michelle Alexander claims that the large and preferential incarceration of blacks is part of a "new Jim Crow" system formulated to maintain second-class citizenship for blacks. Conviction of a felony can lead to prison as well as the rescinding of the right to vote and limited access to a number of government programs.

Alexander makes a compelling "circumstantial" case for her contention. If a system actually is racially biased, and it has as an end product a large number of black people who have been deprived of the normal rights of citizenship, then isn’t it a new form of Jim Crow whether or not the implementation was intentional? Good question!

David F. Musto has written the definitive history of anti-drug legislation in the United States: The American Disease: Origins of Narcotic Control. Let’s see if he can provide us any enlightenment on the issue of drugs and race.

First, here is some background.

"Crude opium is the dried juice of the opium poppy and contains many alkaloids with varying properties. About ten percent of crude opium is extractable as morphine, the chief active ingredient. A simple chemical process discovered in the last quarter of the nineteenth century converts morphine into diacetylmorphine, more commonly known as heroin. Another alkaloid found in crude opium, codeine, is less addictive than morphine and is relatively assessable in cough medicines and analgesic preparations. Crude opium can also be prepared for smoking by dehydration and concentration."

"The active alkaloid in the coca leaf is cocaine. Cocaine produces euphoria and hyperactivity and is similar in many respects to the amphetamines."

Drugs such as opium, morphine, and cocaine were freely available throughout the nineteenth century. Musto suggests that this period can stand as an example for those who would suggest legalization of these drugs.


The drugs were regularly used by physicians as medications and were widely available in commercial formulations generically referred to as "patent medicines." Cocaine could even be purchased in a syringe for self injection. Until 1903, Coca Cola contained cocaine. Afterward, the cocaine was replaced with a new stimulant: caffeine. Children were subjected to narcotics as a remedy for crankiness and sleeping difficulties. There were no labeling and disclosure requirements at the time so patients and consumers might not have known exactly what they were consuming.
"In the United States the exhilarating properties of cocaine made it a favorite ingredient of medicine, soda pop, wines and so on. The Parke Davis Company, an exceptionally enthusiastic producer of cocaine, even sold coca-leaf cigarettes and coca cheroots to accompany their other products, which provided cocaine in a variety of media and routes such as a liqueurlike alcohol mixture called Coca Cordial, tablets, hypodermic injections, ointments, and sprays."

Not only was cocaine freely available, but its use was encouraged by respected sources of knowledge.

"Cocaine achieved popularity in the United States as a general tonic, for sinusitis and hay fever, and as a cure for the opium, morphine, and alcohol habits. Learned journals published accounts which just avoided advising unlimited intake of cocaine."

Such widespread use would necessarily create a subset of users who would develop a destructive habit. As the threat of addiction became more widely recognized, a movement to restrict access to these drugs began to grow. Those interested in restricting the drug included those who merely thought controls on usage were required as well as those who thought pleasure-inducing drugs were morally wrong and all recreational use should be prohibited.

Initiatives launched towards imposing restrictions were countered by those who had a financial interest in keeping drugs freely available. The first successful attempt at limiting access involved the prohibition of the importation of smoking opium in 1909. As in all legislative attempts at drug restrictions, politics rather than facts seemed to be the dominant motivator.

The US was approaching an international conference where it hoped to limit the unwelcome British trade in opium with China. The US was embarrassed to note that it itself had no opium restrictions in place. Hurriedly, an embargo was negotiated and signed into law.

In order to obtain this legislation, it was politically expedient to claim that the danger came from the spread of the opium smoking habit from the already reviled and mistreated Chinese minority. The "evil" habit of the "Chinamen" was said to be spreading even into white society. There were claims that Chinese men were seducing white women with drugs and essentially keeping them as sex slaves.

This use of a targeted minority to focus popular disgust in order to obtain desired legislation was effective and became the normal approach with respect to criminalizing drug usage.

"The most passionate support for legal prohibition of narcotics has been associated with fear of a given drug’s effect on a specific minority. Certain drugs were dreaded because they seemed to undermine essential social restrictions which kept these groups under control: cocaine was supposed to enable blacks to withstand bullets which would kill normal persons and to stimulate sexual assault. Fear that smoking opium facilitated sexual contact between Chinese and white Americans was also a factor in its total prohibition. Chicanos in the Southwest were believed to be incited to violence by smoking marijuana. Heroin was linked in the 1920s with a turbulent age group: adolescents in reckless and promiscuous urban gangs. Alcohol was associated with immigrants crowding into large and corrupt cities."

The association of cocaine with blacks was intimately tied to the repressive conditions that the South believed were necessary to keep blacks in their "place." First their guns were taken away, then their civil rights, followed by prohibition of alcohol and a call to stop the selling of something called "Coca Cola."

As usual, the Southern bloc of legislators was needed to get laws passed. To obtain their votes, the fear mongering they engaged in by relating blacks to cocaine became an important part of the political dialogue.

"The fear of the cocainized black coincided with the peak of lynchings, legal segregation, and voting laws all designed to remove political and social power from him. Fear of cocaine might have contributed to the dread that the black would rise above ‘his place,’ as well as reflecting the extent to which cocaine may have released defiance and retribution. So far, evidence does not suggest that cocaine caused a crime wave but rather that anticipation of black rebellion inspired white alarm. Anecdotes often told of superhuman strength, cunning, and efficiency resulting from cocaine. One of the most terrifying beliefs about cocaine was that it actually improved pistol marksmanship. Another myth, that cocaine made blacks almost unaffected by mere .32 caliber bullets, is said to have caused southern police departments to switch to .38 caliber revolvers. These fantasies characterized white fear, not the reality of cocaine’s effects, and gave one more reason for the repression of blacks."

Musto provides a further insight into drug politics that must be remembered in trying to understand how we arrived at our current situation.

"The occasion for legal prohibition of drugs for nonmedical purposes appears to come at a time of social crisis between the drug-linked group and the rest of American society."

The drug laws of the 1970s and 1980s incorporating extremely severe sentences for drug possession or sale came after a period of high crime rate and urban rioting. In circumstances eerily reminiscent of the post-Reconstruction-era South, whites feared that the blacks, in their segregated urban sectors, might be getting out of control. Drugs were already prohibited but, nevertheless, were widely available. The goal of legislation then turned to pouring more resources into crime/drug control. Can it possibly surprise anyone that the tried and true tactic of scaring people with suggestions of cocaine-crazed blacks on a crime spree was resurrected?

Michelle Alexander draws this conclusion:

"A new race-neutral language was developed for appealing to old racist sentiments, a language accompanied by a political movement that succeeded in putting the vast majority of backs back in their place. Proponents of racial hierarchy found they could install a new racial caste system without violating the law or the new limits of acceptable political discourse, by demanding ‘law and order’ rather than ‘segregation forever’."

It is becoming harder and harder to argue with her.


Michelle Alexander is the author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness

Carl Hart is the author of High Price: A Neuroscientist’s Journey of Self-Discovery That Challenges Everything You Know About Drugs and Society