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America's Racist Drug Laws

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behind-barsSentencing Project Executive Director Marc Mauer's a leading expert on sentencing, race, and criminal justice.

For 25 years, it's "work(ed) for a fair and effective criminal justice system by promoting reforms in sentencing law and practice, and alternatives to incarceration."

Criminal injustice is pervasive, especially against people of color. Racial and ethnic minorities comprise over 60% of America's prison population. "For black males in their twenties, 1 in every 8 is in prison or jail on any given day."

America's racist war on drugs disproportionately targets people of color and ethnic minorities. They comprise 75% of those in prison on drug related charges.

On March 17, 2011, Mauer testified before the US Sentencing Commission regarding proposed federal drug offense sentencing guideline amendments to the 2010 Fair Sentencing Act.

He said in 2009, drug offenses accounted for over half (51%) of the federal prison population. Those imprisoned represent a 20-fold increase since 1980. Their numbers exceed those incarcerated in 1980 for all offenses. They're the most significant source of America's 700% federal prison growth.

In recent years, state incarcerations stabilized. Federal ones keep rising. Drug related offenses are most responsible. Racial and ethnic minorities are grievously harmed. Reform is urgently needed.

Mandatory minimum sentences exacerbate the problem. So do other racist policies, including judicial unfairness, three strikes and you're out, get tough on crime policies, and a guilty unless proved innocent mentality.

New York's 1973 Rockefeller drug laws are most pernicious. Anyone convicted of selling two ounces or more of heroin, morphine, "raw or prepared opium," cocaine, or cannabis, or possessing four ounces of the same substances receive mandatory 15-year minimum sentences up a maximum of 25 years to life.

In 1979, marijuana possession penalties were reduced from crimes to misdemeanors. However, aggressive pursuit of offenders continues, especially in New York City. More on that below.

Nationwide crack cocaine (vs. powder) and marijuana possession penalties are also pernicious. Until revised under the 2010 Fair Sentencing Act, first time offenders convicted of possessing as little as five grams of crack (one ounce = 28 grams) automatically got five years in prison.

The new law reduces, but doesn't eliminate, the disparity between crack and powder cocaine. Henceforth, possessing 28 or more grams of crack subjects offenders to penalties up to five years. Mandatory simple possession sentencing ended. In addition, courts may reduce prior sentencing disparities.

Nonetheless, pot busts define America's drug war. In 2006, Mauer said primary focus since 1990 shifted to marijuana offenses. As a result, they comprised 82% of the increase in drug arrests. Virtually all of them were for possessing small amounts. Enforcement costs are enormous - $4 billion or more annually for marijuana alone.

Under the 1970 federal Controlled Substances Act, cannabis is a Schedule I drug, meaning it's defined as having high potential for abuse. So far, redefinition attempts failed. In 2001, the Supreme Court ruled against medical marijuana use in United States v. Oakland Cannabis Buyers' Cooperative.

In Gonzales v. Raich (2005), the High Court ruled that Congress, under the Constitution's Commerce Clause, may criminalize the production and use of home-grown cannabis, even where states approve it for medicinal purposes. More on that below.

A Brief History of Legal Cannabis in America

In 1619, Jamestown colonial law required settlers to grow hemp. George Washington grew it as one of his main crops. Its use for rope and fabric was common throughout 18th and 19th century America.

Around 1860, cannabis regulations and restrictions were first instituted. After 1906, states began labeling it poisonous. In the 1920, prohibitions began. By the mid-1930s, all states enacted regulations, including 35 under the Uniform State Narcotic Drug Act. Violators were penalized but not imprisoned.

In the 1970s, communities began abolishing state laws and local regulations banning cannabis possession. Federal laws remain in place. In the 1990s, local sale for medical purposes began even though doing so conflicts with federal law.

Nonetheless, 16 states and the District of Columbia legalized medical marijuana, including Alaska, Arizona, California, Colorado, Delaware, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

Expect others to follow. Possession amounts and other legal provisions vary by state, but the message is clear. Medicinal marijuana works. As a result, criminalizing it harms those dependent for relief.

In addition, it's a growing revenue source for budget-strapped states. It also produces jobs when they're most needed. It's a win-win, regardless of outdated, counterproductive and repressive federal policies.

Efficacious substances should be encouraged, not prohibited. In 1850s America, pharmacies carried medicinal cannabis. Around the same time, states began regulating pharmaceutical sales, including penalties for mislabeling and adulterated substances.

It became a slippery slope toward criminalizing cannabis. Today's momentum suggests eventual legalization, starting with medicinal use.

Racially Biased New York City Marijuana Policies

In 2008, the New York ACLU published a report titled, "Marijuana Arrest Crusade: Racial Bias and Police Policy in New York City - 1997 - 2007."

From 1977 - 1986, 33,000 possession arrests were made. Numbers declined to 30,000 from 1987 - 1996. However, from 1997 - 2006, they exploded to 353,000. Today, outside the report's timeline, they number around 50,000 annually for simple possession of small amounts. More on that below.

US Supreme Court Justice William O. Douglas once said:

"As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be aware of change in the air, however slight, lest we become unwitting victims of the darkness."

In New York City, Blacks and Hispanics are Exhibit A. They've been victimized by racist drug enforcement, notably for cannabis possession. From 1997 - 2006, Blacks comprised 52% of arrests, Hispanics another 31%. Whites accounted for 15%.

Those arrested and jailed affected 185,000 Blacks, 110,000 Hispanics, but only 53,000 Whites for minor possession offenses. Most were aged 26 or younger. About 91% were males.

Under Mayor Rudy Giuliani (January 1994 - December 2001), marijuana possession arrests exploded 10-fold. Under Mayor Michael Bloomberg (January 2002 - present), they're higher than ever. At the same time, New York police provide little information. As a result, few New Yorkers know their city conducts "a historically unprecedented marijuana arrest crusade."

Cops involved up to top commanders benefit. Marijuana busts are safe. Involved officers and supervisors accrue overtime pay, and produce numbers showing productivity.

In contrast, those arrested are harmed even if not prosecuted. Procedures include handcuffing, fingerprinting, photographing, and potentially obtaining DNA samples. Often people with no criminal records are affected. Henceforth they'll have one and plenty of baggage.

Whether or not convicted, employment and educational opportunities, mortgages or other loans, public housing benefits, licenses, travel visas, and good credit standing are at risk.

Moreover, arrests and overnight custody alone are humiliating, degrading, alienating and unjust for possessing small amounts of controlled substances, especially marijuana that long ago should have been legalized.

Last September, New York Police Commissioner Raymond Kelly responded to public pressure. As a result, he ordered commanders not to arrest people possessing small marijuana amounts unless they're in public view.

In 1979, New York state decriminalized amounts of 25 grams or less. Henceforth, displaying it publicly became low-level misdemeanors, subject to ticketing, not arrests or jailing.

New York City's stop-and-frisk policy drew widespread criticism. Mostly Black and Hispanic males are targeted. Police routinely confront them, demand their pockets be emptied, and if marijuana is displayed, they're arrested for having it in public view. As a result, around 50,000 annually are criminalized unjustly.

At the time, critics called Kelly's action important. Chief Legal Aid Society attorney Steven Banks said it would make a tremendous difference to wrongfully targeted young minorities.

Drug Policy Alliance executive director Ethan Nadelmann called the order a significant change in how police deal with minor marijuana possession cases. Hopefully, "gross racial disparity" would be curbed.

Kelly's order in part read:

"Questions have been raised about the processing of certain marijuana arrests." Henceforth, "(a) crime will not be charged to an individual who is requested or compelled to engage in the behavior that results in the public display of marijuana." Displaying it must be "actively undertaken of the subject's own volition."

Queens College sociologist Harry G. Levine said public defenders and legal aid lawyers estimate up to three-fourths of those arrested displayed it on police orders. Those affected don't know they’re illegal, but police are very intimidating.

Last year, Brooklyn Democratic assemblyman Hakeem Jeffries and Republican Senator Mark Grisanti sponsored legislation to downgrade small possession public displays from misdemeanors to a lessor violations. Bloomberg opposed them, claiming it would encourage greater use.

Despite Kelly's order, marijuana arrests declined slightly but continue. So does NYPD's racist crusade. Bloomberg supports it. So does Kelly tacitly. In 2010, one in every seven city arrests were for displaying marijuana in public view. Illegal police searches and false charges were mostly responsible.

Last year, New York's illegal stop-and-frisk policy affected over 600,000 people, overwhelmingly young Black and Hispanic males. Despite Kelly's order, illegal arrests continue. Institute for Juvenile Reform and Alternatives member Chino Hardin said "build(ing) a movement to stop" New York's crusade is essential.

On December 8, the ACLU called "NYPD Pot Arrests Habit....Tough to Break," saying:

Police Commissioner Kelly's order lowered arrests slightly, but maintained New York's distinction as "the marijuana arrest capital of the world. This just won't do."

City Hall policy is at fault. People of color are aggressively targeted for petty offenses like "graffiti, disorderly conduct, and - you guessed it - minor marijuana possession."

Ingrained habits are hard to break. Kelly's order lacked teeth, especially without City Hall's endorsement.

As a result, New York Black and Hispanic youths face unrelenting persecution unless public pressure forces legislative relief. It's long overdue nationwide with teeth.


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