The history of how our current drug laws and policies came to exist is full of anti-immigrant and anti-Black sentiment. Drug policy refers to the procedures used by our government to control the use and sales of psychoactive substances, particularly those that are addictive. People of all races use drugs at around the same rate. However, people of color are more likely to be arrested and jailed for drug offenses. White people are more likely to be seen as needing medical intervention, and therefore, they are more likely to receive treatment. More specifically, although Black Americans are no more likely than white Americans to use illicit drugs, they are 6 to 10 times more likely to be incarcerated for drug offenses (Netherland and Hansen, 2017).

Racist Roots of Drug Policies

Drug policy in the United States is connected to drug scares, which are moral panics created to make it seem, wrongfully, that a certain substance or drug is to blame for a wide array of social problems that already exist (Reinarman, 1994). Often, law enforcement officials, government employees, and the media would associate the usage of a particular drug with a particular racial or ethnic group. The usage of this substance by that group would be understood as causing a variety of social problems. This view was perpetrated by the media, as well as law enforcement officials and politicians at the time (Reinarman, 1994).

Attendance at opium dens (the equivalent of today’s bar or tavern, with opium the drug of choice rather than alcohol) was a popular activity for the Chinese immigrants who began arriving in the United States during the 1850s to help build the nation’s railroads and perform other jobs. White workers feared their growing numbers as a threat to their jobs, and racial prejudice against the Chinese increased. Politicians, labor unions, and other parties began to focus on the Chinese habit of smoking opium at opium dens and warned that the Chinese were kidnapping little white children, taking them to the opium dens, and turning them into “opium fiends.” This campaign had two effects: it increased prejudice against the Chinese, and it increased public concern about opium. This rising concern led San Francisco in 1875 to become the first locality to ban opium dens, along with several other measures that had the impact of harassing the Chinese-American population. Other California cities did the same, and the state itself banned opium dens in 1881. Three decades later, the federal government banned the manufacture, sale, and use of opium (except for use with a physician’s prescription) when it passed the Harrison Narcotics Act in 1914.

Racist fears were also at the root of federal policy prohibiting cannabis use and sales. Using the term marijuana instead of cannabis was an explicit effort to associate cannabis with Mexicans who had moved to the United States. After the Mexican Revolution of 1910, Mexicans moved to the United States in increased numbers, and some immigrants used the herb marijuana for casual smoking. Although the immigrants were important in providing needed agricultural labor, the increase in immigration raised xenophobic fears. White people feared that Mexicans would take their jobs, and, similar to what happened with opium and Chinese immigrants during the 1870s, the white public began to charge that Mexicans who used cannabis would become violent and more likely to rape and murder innocent white victims. One Texas state legislator proclaimed on the senate floor: “All Mexicans are crazy and this stuff [cannabis] is what makes them crazy” (Ghelani, 2020:7). In another example, in 1937, head of the Federal Bureau of Narcotics Harry Ainsliger testified before Congress, saying, “marihuana is an addictive drug which produces insanity, criminality, and death” (Ghelani, 2020:8) This racially prejudiced claim increased concern about cannabis and helped lead to the federal Marijuana Tax Act of 1937 that banned its use.

In the 1960s, race was at the core of drug policy that emerged from an increase in heroin use in urban centers. According to media accounts, the face of the heroin user at that time was “[B]lack, destitute and engaged in repetitive petty crimes to feed his or her habit” (Hart and Hart, 2019:7). A popular solution to this racialized drug scare was to incarcerate Black users of heroin and offer methadone treatment to white users.

New York State was a forerunner in creating harsh drug laws to address heroin use in cities. The infamous Rockefeller drug laws of 1973 created mandatory minimum prison sentences of 15 years to life for possession of small amounts of heroin and other drugs (Hart and Hart, 2019). Ninety percent of those convicted under the Rockefeller drug laws were Black and Latinx, though they represent a smaller proportion of people who use drugs in the population (Drucker, 2002).

Drug Courts

Drug courts began in the 1990s and now number more than 4,000 across the United States, according to the National Drug Court Resource Center. In these courts, drug offenders who have been arrested and found guilty are sentenced to drug treatment and counseling rather than to jail or prison. Evaluation studies show that the courts save much money compared to imprisoning drug offenders and that they are more effective than imprisonment in reducing the offenders’ drug habit (Stinchcomb, 2010).

Drug courts involve the convening of a multidisciplinary team, including representatives from the prosecutor and defense attorney’s offices, case management, and treatment agencies. A judge oversees the team that creates a treatment plan for the offender that involves participation in rehabilitative services. This treatment plan can last as long as a year or longer. Once the offender has completed the treatment plan, their criminal charge will be either reduced or dismissed. Researchers have shown that Black offenders are less likely to be referred for admittance into a drug court program (Sheeran and Heideman, 2021).

Advocates for drug courts will often point to their success in making communities safer and saving taxpayer dollars by avoiding incarceration. Rehabilitation of the person dependent on drugs is often downplayed (McColl, 2017). There seems to be a bit of a philosophical contradiction contained in the ideas that support the use of drug courts. Drug courts draw on prevailing ideas that understand addiction as a disease, but they also position drug use as morally bad (Tiger, 2013). Drug courts involve coercion as the key to effective treatment. This raises the question of whether an individual sick with a disease should be coerced into treatment. According to sociologist Rebecca Tiger, a prominent researcher of drug courts, “judges or other staff, not physicians, diagnose defendants as addicts and drug court staff prescribe the course of treatment” (2013:76). In the drug court setting, drug use “is characterized both as a disease, cured through individually tailored treatment, and a moral failing, punished through a variety of coercive sanctions” (Tiger, 2013:77). Tiger (2013) believes drug courts are part of a long line of punitive interventions that use a medical perspective to add value to their claims to cure deviance and promote conformity.

When participants in drug court are mandated to inpatient drug treatment programs, they are often sent to what sociologists Teresa Gowan and Sarah Whetstone (2012) call “strong-arm rehab.” These are institutions that emphasize “long residential stays, high structure, mutual surveillance, and an intense process of character reform” (Gowan and Whetstone, 2012:70). They also note that strong-arm rehab programs tend to be linked to poor Black drug offenders.

In their ethnography of a strong-arm rehab, Gowan and Whetstone (2012) noticed that part of the character reform that occurred took on a racial element and manifested as racism. They noticed that the young Black patients were seen by staff to have the most problematic way of life. Black cultural patterns of dress and speech were seen as negative influences that created the danger of relapse. Gowan and Whetstone (2012) described accounts of punishment for certain clothing and speech styles among the young Black male patients of the strong-arm rehab.

The New Jim Crow

The network of policies and unequal institutional practices of the War on Drugs, discussed in detail in the next section, led to what scholar Michelle Alexander terms “the New Jim Crow.” The New Jim Crow, as discussed in Chapter 3, refers to the system of laws and practices that disproportionately funnel Black Americans into the criminal justice system, stripping them of their constitutional rights as a punishment for their offenses. This is similar to how Jim Crow laws stripped rights in the late 19th century up to 1965. These new mass incarceration policies created a new iteration of the racial caste system: one where Black Americans can legally be denied public benefits, housing, the right to vote, and participation on juries because of a criminal conviction. The application of this caste system relies on every level of the criminal justice system, including police officers making arrests; the process of prosecution in courts; being put in jail; and the often permanent legal penalties that follow a person once out of prison and labeled a felon.

For example, police officers conducting high rates of stop-and-search procedures for illegal drugs, as discussed in Chapter 5, is one process that has stripped civil rights from predominantly Black and Brown people by funneling them through the criminal justice system. Some Black Americans arrested for possessing illegal drugs have argued in court that the police officers who searched them violated their Fourth Amendment rights. In criminal cases like these that reached the U.S. Supreme Court, the Court has made rulings that police officers did not violate the Fourth Amendment. For example, the Court has reasoned that if a person gives “consent” to a search (letting an officer search them when asked), they are waiving their Fourth Amendment rights.

In other cases, without probable cause for a search, police officers use a pretext. In this sense, using pretext is the process of stopping a person for something non-drug related (in most cases, a minor traffic violation) and then using that initial stop as an excuse to look for drugs. When argued in court that statistical evidence of racial discrimination in stop-and-search patterns showed Black and Brown people were disproportionately stopped with pretext, the U.S. Supreme Court ruled these stops do not violate the Fourth Amendment because explicit racial discrimination is absent in individual police officers (Alexander, 2010).

Alexander (2018) also writes about the newest Jim Crow – electronic surveillance. The latest in American corrections is home detention made possible by electronic GPS surveillance equipment strapped to offenders’ legs. This equipment allows law enforcement to monitor the whereabouts of offenders. This system is said to be less expensive than prison and more flexible. The outcome is that offenders, who are disproportionately Black and Brown due to the systemic racism of the criminal justice system, are forced to live within a very small geographic area, limiting their employment and social support options. It can often be impossible for individuals to find or get work, attend school, provide care for their children, or see family members. The effect is that one is sentenced to an “open-air digital prison” with a zone of movement that may not extend beyond one’s home, block, or neighborhood (Alexander, 2018).

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Licenses and Attributions for The Racist History of Drug Policy in the United States

Open Content, Original

“The Racist History of Drug Policy in the United States” by Kelly Szott, revised by Jessica René Peterson, is licensed under CC BY 4.0.

“The New Jim Crow” by Brooke Calton and Kelly Szott is licensed under CC BY 4.0.

Open Content, Shared Previously

“Drug Courts” is adapted from “7.5 Drug Policy and the War on Illegal Drugs” by Anonymous, Social Problems – Continuity and Change, which is licensed under CC BY-NC-SA 4.0. Modifications by Kelly Szott, which are licensed under CC BY-NC-SA 4.0, include a copied paragraph.

“Racist Roots of Drug Policies” is adapted from “Who Gets High? Social Problems Associated with Drug Use” by Kelly Szott and Kimberly Puttman, in Inequality and Interdependence: Social Problems and Social Justice, which is licensed under CC BY 4.0. Modifications by Kelly Szott, which are licensed under CC BY 4.0, include borrowing a few sentences in the third paragraph.