Retired Judge Reveals the Surprising Rationale for America's Extremist Drug Laws
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What follows is an excerpt from "Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge" (Thomson Reuters Westlaw 2012), a book where the author tries to explain life on the bench and the unknown parts of our legal system.
The first anti-drug law in our country was a local law in San Francisco passed in 1875. It outlawed the smoking of opium and was directed at the Chinese because opium smoking was a peculiarly Chinese habit. It was believed that Chinese men were luring white women to have sex in opium dens. In 1909 Congress made opium smoking a federal offense by enacting the Anti-Opium Act. It reinforced Chinese racism by carving out an exception for drinking and injecting tinctures of opiates that were popular among whites.
Cocaine regulations also were triggered by racial prejudice. Cocaine use was associated with blacks just as opium use was associated with the Chinese. Newspaper articles bore racially charged headlines linking cocaine with violent, anti-social behavior by blacks. A 1914 New York Times article proclaimed: "Negro Cocaine 'Fiends' Are a New Southern Menace: Murder and Insanity Increasing Among Lower Class Blacks Because They Have Taken to 'Sniffing.'" A Literary Digest article from the same year claimed that "most of the attacks upon women in the South are the direct result of the cocaine-crazed Negro brain." It comes as no surprise that 1914 was also the year Congress passed the Harrison Tax Act, effectively outlawing opium and cocaine.
Marijuana prohibition also had racist underpinnings. This time it was the Mexicans. Just as cocaine was associated with black violence and irrational behavior, in the southwest border towns marijuana was viewed -- beginning in the early 1920s -- as a cause of Mexican lawlessness. A Texas police captain suggested that marijuana gave Mexicans superhuman strength to commit acts of violence:
Under marijuana Mexicans [become] very violent, especially when they become angry and will attack an officer even if a gun is drawn on him. They seem to have no fear. I have also noted that under the influence of this weed they have enormous strength and it will take several men to handle one man while, under ordinary circumstances, one man could handle him with ease.
The American Coalition -- an anti-immigrant group -- claimed as recently as 1980: "Marihuana, perhaps now the most insidious of narcotics, is a direct byproduct of unrestricted Mexican immigration."
The racial fallout from our drug laws has persevered. In her article, The Discrimination Inherent in America's Drug War, Kathleen R. Sandy reported in 2003 that black Americans then constituted approximately 12 percent of our country's population and 13 percent of drug users. Nevertheless, they accounted for 33 percent of all drug-related arrests, 62 percent of drug-related convictions and 70 percent of drug-related incarcerations.
The country's concerted crackdown on drugs -- and the imposition of increasingly harsh punishment for illicit usage, importation, and distribution -- probably owes its genesis to the appointment in 1930 of Harry Anslinger as the commissioner of the newly created United States Narcotics Bureau. He started a media campaign to classify marijuana as a dangerous drug. For example, he wrote a major article titled "Marihuana, the Assassin of Youth." It was rife with accusations that marijuana was responsible for encouraging murder, suicide, and insanity. Anslinger's campaign was wildly successful. Before he took office only four states had enacted prohibitions against non medical usage of marijuana--California (1915), Texas (1919), Louisiana (1924), and New York (1927) -- but by 1937 46 of the nation's then 48 states had banned marijuana.
Since then Congress has enacted a spate of comprehensive anti-drug laws with strict penalties. For example, today one can be sentenced to life for distributing one kilogram of heroin; 40 years for distributing 100 grams, and 20 years for distributing any quantity at all. Nevertheless, this has not stemmed the country's appetite for illicit drugs in spite of every administration's continued "war on drugs" since President Nixon established the Drug Enforcement Agency in 1972, which has grown through the years to a staff of almost 10,000 employees and a budget of $2 billion.
According to data from the 2010 National Household Survey on Drug Use and Health, almost 120 million Americans 12 or older -- roughly 47 percent of that population -- reported illicit drug use at least once in their lifetime; 15.3 percent admitted to using an illegal drug in the prior year; and 8.9 percent -- roughly 23 million people -- did it within the prior month. The New York Times recently reported that one out of every 15 high school students smokes marijuana on a near daily basis.
When it comes to sentencing, the main culprit is drugs. About half of the roughly 220,000 criminals in the federal prisons have either brought them into our country, have distributed them here, or have otherwise associated themselves with this illicit activity. This means that probably half of the $6.8 billion of the Bureau of Prisons budget is eaten up by incarcerating the criminal druggies. Half of the prison population is there because of drugs, costing us billions of dollars a year to keep them in jail.
Copyright, 2012. Reprinted with permission from the author.