pre⋅ténse

I am a part of all that I have met; Yet all experience is an arch wherethro'
Gleams that untravell'd world, whose margin fades For ever and for ever when I move.

Month: May 2017

Decriminalize drugs at the federal level and let the States experiment

My previous post was a review of The New Jim Crow, by Michelle Alexander. I found the book to be extremely thought provoking, but rather than muddle a book review with my own takeaway, I am writing a separate post.  Alexander’s thesis is that the present War on Drugs—the set of laws, sentencing guidelines, police practices, and funding structures—are effectively a new Jim Crow system, that operate to exclude African Americans (especially African American men) from society, condemning many to a life of poverty.

The picture the book portrays of the effect of the drug war is bleak. I am less convinced personally of the racial analysis, because I don’t see that Alexander has controlled carefully for poverty as a factor. Nevertheless, the racial disparities in poverty are indisputable, and the drug enforcement situation is what it is. I can say without reservation that, if a system were desired that would systematically disrupt families and consign entire generations to poverty, the current War on Drugs would fit the bill admirably.

When crack became widespread in the 1980s under Reagan, the move was for harsher penalties: lower thresholds for felonies, longer prison terms for offenders. This continued under Clinton in the 1990s. This has resulted in lengthy prison sentences for many African American men. In some cities, Alexander notes, a majority of African American males have been incarcerated at some point in their lives.

Now speaking personally, when I first heard complaints that African Americans were disproportionately incarcerated, my thought was, “What’s the proposal? To make fewer things illegal?” I asked the question (to myself) ironically, but I now think that it’s a proposal worth considering. Here’s my logic:

Why do we want to eliminate drugs from our society? Because they mess up people’s lives: they cause crime, break up families,  keep people from being productive members of society.

What has been the result of the War on Drugs on impoverished communities? Mass incarceration, which: causes crime, breaks up families, and keeps people from being productive members of society.

There is a point at which we must evaluate whether the solution we have been pursuing is not itself producing the very harms we are trying to avoid. What if drugs were legal? How much worse can things get that the results we’re currently getting? I submit that the answer to that question is not obvious.

Or, what if we addressed the drug problem a different way? With economic investment? With education? With jobs programs? Pie in the sky? I honestly don’t know—and nobody does, because we haven’t tried.

Here is a key quote from Alexander:

No one should ever attempt to minimize the harm caused by crack cocaine and the related violence. As David Kennedy correctly observes, “[c]rack blew through America’s poor black neighborhoods like the Four Horsemen of the Apocalypse,” leaving behind unspeakable devastation and suffering. As a nation, though, we had a choice about how to respond. Some countries faced with rising drug crime or seemingly intractable rates of drug abuse and drug addiction chose the path of drug treatment, prevention, and education or economic investment in crime-ridden communities.

But here’s the rub: at the federal level, it’s going to be difficult to implement change. That’s because corn farmers in Nebraska and ranchers in Wyoming have just as much say (in fact, proportionately a greater say) than people in urban areas whose lives are affected by the drug war. If I have zero emotional investment in a situation, how much intelligent thought am I going to put into it? (Would you ask me what to do about the drought in California? Would you consult with me about building a new train line out east? No, of course not: I know nothing about those situations, nor do I care enough to even think carefully about them, much less do the research.)

Moreover, how would we ever find out what works? At the federal level we would need decades just to try various alternatives.

(Moreover, as Alexander notes, federal drug enforcement grants create incentives for the police to make drug arrests, which creates perverse financial incentives to lock people up. It wouldn’t be the worst thing in the world to get rid of that system.)

So my proposal is simple: get the federal government out of the drug enforcement business, and let the states experiment.

So on January 1, all federal drug laws disappear. You can bet that by December 31, fifty states will have drug laws in place that match the old federal regulations pretty closely.

But then, the states can begin to experiment. Theoretically libertarians could lead the charge, but realistically it’s going to be a deep blue state in the Northeast. Vermont legalizes all drugs, and then… ?

Maybe it tanks, and we lose Vermont. Maybe it works in Vermont but then doesn’t work in New Jersey. States are different. The point is, states are more nimble than the federal government, and state legislators are going to be held more closely accountable than federal ones.

(My personal prediction: we’ll find out that a certain number of people will use addictive drugs and destroy their lives, just like some people use alcohol to destroy their lives. On the whole, I would predict that drugs alone will destroy fewer lives than drugs and the War on Drugs put together.)

Of course Colorado is sort of trying this out, having legalized marijuana. (Somehow the federal government is letting them do that. I’m not sure the full story.) So far, Colorado seems to be doing all right—but it’s still early enough that I’m glad we’re just trying it out in one state at first.

 

The New Jim Crow

I’ve just finished The New Jim Crow, by Michelle Alexander, which is a well written and thought provoking book. Alexander deals primarily with the War on Drugs and its effects on individual African Americans, African American communities, and American society more generally.

This book argues that mass incarceration is, metaphorically, the New Jim Crow and that all those who care about social justice should fully commit themselves to dismantling this new racial caste system. Mass incarceration—not attacks on affirmative action or lax civil rights enforcement—is the most damaging manifestation of the backlash against the Civil Rights Movement. The popular narrative that emphasizes the death of slavery and Jim Crow and celebrates the nation’s “triumph over race” with the election of Barack Obama, is dangerously misguided. The colorblind public consensus that prevails in America today—i.e., the widespread belief that race no longer matters—has blinded us to the realities of race in our society and facilitated the emergence of a new caste system.

Before getting into the specifics of The New Jim Crow,  I’ll note that I first came to the book through the writings of Ta-Nahesi Coates in The Atlantic.  I value Coates’ rich and emotive prose, but I am always at a loss to understand the logic of what he is saying: I am presented with a tragic story and a proposal for change, but nothing that links the two. I came to The New Jim Crow hoping to learn some new things, and understand the controversy surrounding African Americans and the justice system. I was not disappointed. Alexander writes both powerfully and clearly. Her arguments are clearly stated, and her factual claims are footnoted. (She is a law professor, so this is not surprising.) The book would be worth reading as an example of good persuasive writing. Moreover, it is clear that Alexander is accustomed to dialog. She acknowledges counter-arguments and addresses them honestly; she has a sense of how people think who think differently from her. (One does not get this sense from Coates.) Some of this may have developed in the home: in the acknowledgements, after thanking her husband for his support she comments that “[a]s a federal prosecutor, he does not share my views about the criminal justice system….” One can only imagine the dinner table conversation. But all of this is to say: if you’re looking for clear and compelling reflections on the effects of the justice system on African Americans, this is the book for you.

Alexander focuses on the effect of the War on Drugs on the black community. She identifies a historical progress of the oppression or exploitation of African Americans, beginning with slavery, then continuing in modified form in the Jim Crow system, and then reviving in the present day (as an alleged reaction to the victory of the Civil Rights movement) in the War on Drugs. The parallels between the suffering of African Americans today and the suffering of African Americans in history are not subtle:

More black men are imprisoned today than at any other moment in our nation’s history. More are disenfranchised today than in 1870, the year the Fifteenth Amendment was ratified prohibiting laws that explicitly deny the right to vote on the basis of race.

More African American adults are under correctional control today—in prison or jail, on probation or parole—than were enslaved in 1850, a decade before the Civil War began. The mass incarceration of people of color is a big part of the reason that a black child born today is less likely to be raised by both parents than a black child born during slavery.

In my opinion, the book is at its best when it traces the disparate effect of drug laws on African Americans, at every stage of the system. I have not quoted extensively from this part of the book, but it was the part I think I gained the most from.

  • African Americas are disproportionately stopped by police, on all manner of pretexts. (This, by the way, is apparently what causes the disproportionate killing of black men by police.)
  • Federal funding creates powerful financial incentives for local police departments to prosecute drug crime. This feeds the problem above.
  • Prosecutors wield awesome power in their ability to pressure people accused of crimes into plea bargains. To me, this is the most glaring injustice in the entire court system. As Alexander carefully documents, there is essentially no oversight of this. (This deserves far more than one bullet point.)
  • Federal mandatory sentencing guidelines require judges to imprison people for lengthy periods.
  • (Around this section, there is also a nice discussion of various Supreme Court cases that bear on the issues.)

The crucial fact is the whites and blacks commit drug offenses at similar rates. There are differences, but they are not proportionate to the differences in outcomes. We do have a system where, as the result of various policies and the ways they are implemented, the justice system prosecutes the drug offenses of African Americans far more strenuously than it does the drug offences of white Americans.

In another chapter, Alexander deals with the social consequences of being a felon. This is perhaps not new information to most of us (at least those who have read Les Mis), but it’s well worth the review that Alexander gives us. The net effect of the system is that a large fraction of young African American men are funneled into a system that puts them at a social and economic disadvantage for the rest of their lives. I found the following metaphor illuminating:

The unfortunate reality we must face is that racism manifests itself not only in individual attitudes and stereotypes, but also in the basic structure of society. Academics have developed complicated theories and obscure jargon in an effort to describe what is now referred to as structural racism, yet the concept is fairly straightforward. One theorist, Iris Marion Young, relying on a famous “birdcage” metaphor, explains it this way: If one thinks about racism by examining only one wire of the cage, or one form of disadvantage, it is difficult to understand how and why the bird is trapped. Only a large number of wires arranged in a specific way, and connected to one another, serve to enclose the bird and to ensure that it cannot escape. What is particularly important to keep in mind is that any given wire of the cage may or may not be specifically developed for the purpose of trapping the bird, yet it still operates (together with the other wires) to restrict its freedom. By the same token, not every aspect of a racial caste system needs to be developed for the specific purpose of controlling black people in order for it to operate (together with other laws, institutions, and practices) to trap them at the bottom of a racial hierarchy. In the system of mass incarceration, a wide variety of laws, institutions, and practices—ranging from racial profiling to biased sentencing policies, political disenfranchisement, and legalized employment discrimination—trap African Americans in a virtual (and literal) cage.

I hope that everything I have written to this point would encourage a reader to read The New Jim Crow and to think about it seriously. That is my intent, at least. I do have some critical comments as well, however.

In the first passage I quoted, Alexander says that “mass incarceration is, metaphorically, the New Jim Crow”. Much rests on the word “metaphorically”. In my opinion, Alexander vacillates between claiming that mass incarceration relies on negative stereotypes of African Americans perpetuated by “elites” and “the media”, or that it is an unfortunate consequence of actions taken by people who are not necessarily of ill will.  Slavery and Jim Crow had a clear racial justification. The War on Drugs, by contrast, is justified in race-neutral terms. Alexander to eager to play up the extent to which the War on Drugs was motivated by fear about drug crimes committed by African Americans.

When people think about crime, especially drug crime, they do not think about suburban housewives violating laws regulating prescription drugs or white frat boys using ecstasy. Drug crime in this country is understood to be black and brown, and it is because drug crime is racially defined in the public consciousness that the electorate has not cared much what happens to drug criminals—at least not the way they would have cared if the criminals were understood to be white. It is this failure to care, really care across color lines, that lies at the core of this system of control and every racial caste system that has existed in the United States or anywhere else in the world.

This passage implies that the laws were created a society that was anxious about African American drug use, but more forgiving of white drug use. I question whether this is the case, but in any event, it seems important to Alexander that negative racial attitudes form the basis for the War on Drugs.  Elsewhere, Alexander is content to attribute the harm to lack of concern, rather than actual racial animus (or, in the passage below, even racial prejudice).

Claims that mass incarceration is analogous to Jim Crow will fall on deaf ears and alienate potential allies if advocates fail to make clear that the claim is not meant to suggest or imply that supporters of the current system are racist in the way Americans have come to understand that term. Race plays a major role—indeed, a defining role—in the current system, but not because of what is commonly understood as old-fashioned, hostile bigotry. This system of control depends far more on racial indifference (defined as a lack of compassion and caring about race and racial groups) than racial hostility—a feature it actually shares with its predecessors.

The notion that racial caste systems are necessarily predicated on a desire to harm other racial groups, and that racial hostility is the essence of racism, is fundamentally misguided. Even slavery does not conform to this limited understanding of racism and racial caste. Most plantation owners supported the institution of black slavery not because of a sadistic desire to harm blacks but instead because they wanted to get rich, and black slavery was the most efficient means to that end. By and large, plantation owners were indifferent to the suffering caused by slavery; they were motivated by greed. Preoccupation with the role of racial hostility in earlier caste systems can blind us to the ways in which every caste system, including mass incarceration, has been supported by racial indifference—a lack of caring and compassion for people of other races.

I quote that in pointing out Alexander’s ambivalence toward the roles of actual racism in the system of mass incarceration, but the passage is worth considering in its own right. Morally, I believe that the analysis is spot on: we have a system that produces disparate outcomes between different racial groups. It’s not evidence of hostility, necessarily, but of indifference.

But then we’re back to imputations of intentional harm. Many Jim Crow laws were race-neutral at a surface level, but were clearly intended, as in the example below, to disenfranchise African Americans. The passage below is again well worth reading in its own right, but again I point to Alexander’s ambivalence: are present day legislators intentionally trying to imprison black people, and merely using drug laws as thinly veiled means to do so?

An example of a difference [between Jim Crow and mass incarceration] that is less significant than it may initially appear is the “fact” that Jim Crow was explicitly race-based, whereas mass incarceration is not. This statement initially appears self-evident, but it is partially mistaken. Although it is common to think of Jim Crow as an explicitly race-based system, in fact a number of the key policies were officially colorblind. As previously noted, poll taxes, literacy tests, and felon disenfranchisement laws were all formally race-neutral practices that were employed in order to avoid the prohibition on race discrimination in voting contained in the Fifteenth Amendment. These laws operated to create an all-white electorate because they excluded African Americans from the franchise but were not generally applied to whites. Poll workers had the discretion to charge a poll tax or administer a literacy test, or not, and they exercised their discretion in a racially discriminatory manner. Laws that said nothing about race operated to discriminate because those charged with enforcement were granted tremendous discretion, and they exercised that discretion in a highly discriminatory manner.

I will also add that, for a book that is quite explicitly about race—the end of the book argues strongly against colorblindness and in favor of racial consciousness—I don’t believe that Alexander successfully disentangles the many factors in play. I’m thinking of poverty and urban ghettos. Poverty is unfortunately higher in the African American population. As Alexander observes, African American urban communities were hit hard by the departure of manufacturing jobs in the 1970s.  She—obviously—ties the economic plight to the crime problem (NB: below, violent crime):

Although African Americans do not engage in drug crime at significantly higher rates than whites, black men do have much higher rates of violent crime, and violent crime is concentrated in ghetto communities. Studies have shown that joblessness—not race or black culture—explains the high rates of violent crime in poor black communities. When researchers have controlled for joblessness, differences in violent crime rates between young black and white men disappear.

 

This, however, raises the question of whether the effective “target” of the War on Drugs is African Americans as a whole, impoverished African Americans, impoverished urban African Americans, or impoverished urban Americans as a whole. Alexander frequently refers to “people of color” and “black and brown” people (the latter presumably referring to Hispanic Americans). Obviously, African Americans and Hispanic Americans had different experiences in American history. Alexander doesn’t really reflect on the differences here, nor ask how or why, if the War on Drugs is somehow the historical successor to slavery and Jim Crow, Hispanic Americans somehow got swept up into that narrative.

A final critique is that, in a book filled with terrific insights, Alexander is sometimes incautious in her claims and/or presentation of the data. I’ll illustrate the unevenness with two paragraphs, one bad and one good. I’ll begin with the bad so that I can end on a high note.

Another clue that mass incarceration, as we know it, would not exist but for the race of the imagined enemy can be found in the history of drug-law enforcement in the United States. Yale historian David Musto and other scholars have documented a disturbing, though unsurprising pattern: punishment becomes more severe when drug use is associated with people of color but softens when it is associated with whites. The history of marijuana policy is a good example. In the early 1900s, marijuana was perceived—rightly or wrongly—as a drug used by blacks and Mexican Americans, leading to the Boggs Act of the 1950s, penalizing first-time possession of marijuana with a sentence of two to five years in prison. In the 1960s, though, when marijuana became associated with the white middle class and college kids, commissions were promptly created to study whether marijuana was really as harmful as once thought. By 1970, the Comprehensive Drug Abuse Prevention and Control Act differentiated marijuana from other narcotics and lowered federal penalties. The same drug that had been considered fearsome twenty years earlier, when associated with African Americans and Latinos, was refashioned as a relatively harmless drug when associated with whites.

I’m not sure what this sweeping overview of perceptions and drug use and federal regulation is intended to achieve. (The original is footnoted.) Alexander makes a very strong claim here, and is not at all careful in demonstrating causal links between drug policy and drug perception. This cartoonish approach to history doesn’t help her case.

On the other hand, here is an excellent paragraph discussing the disparity between the government’s response to crack and its response to drunk driving.

At the close of the decade [the 1980s], drunk drivers were responsible for approximately 22,000 deaths annually, while overall alcohol-related deaths were close to 100,000 a year. By contrast, during the same time period, there were no prevalence statistics at all on crack, much less crack-related deaths. In fact, the number of deaths related to all illegal drugs combined was tiny compared to the number of deaths caused by drunk drivers. The total of all drug-related deaths due to AIDS, drug overdose, or the violence associated with the illegal drug trade, was estimated at 21,000 annually—less than the number of deaths directly caused by drunk drivers, and a small fraction of the number of alcohol-related deaths that occur every year. In response to growing concern—fueled by advocacy groups such as MADD and by the media coverage of drunk-driving fatalities—most states adopted tougher laws to punish drunk driving. Numerous states now have some type of mandatory sentencing for this offense—typically two days in jail for a first offense and two to ten days for a second offense. Possession of a tiny amount of crack cocaine, on the other hand, carries a mandatory minimum sentence of five years in federal prison.

The criticisms above are not intended to detract from a very good book, one which draws together a considerable amount of research, and presents a case that is (for the most part) carefully reasoned and presented. I’m very glad to have read this book, and I hope it continues to influence public policy debates.

 

 

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