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Drugs and Narcotics

Drug Policy And Law Enforcement

The enforcement of U.S. drug laws involves the use of substantial federal and state resources to educate, interdict, and prosecute. Estimates of the total annual cost of drug enforcement ranged from $20 billion to $30 billion in the 1990s. The federal government directs drug enforcement policy through the national director of drug control policy. Policy implementation involves both federal and state agencies, including the Department of Justice, the DRUG ENFORCEMENT ADMINISTRATION (DEA), the FEDERAL BUREAU OF INVESTIGATION (FBI), the STATE DEPARTMENT, branches of the ARMED SERVICES and the U.S. Coast Guard, and local police departments. Drug enforcement is primarily a national effort, yet because drugs enter the United States from other countries, it also has international considerations.

RACE CRACK COCAINE AND THE WAR ON DRUGS

In the war on drugs in the United States, race is a critical issue. Although statistics indicate that African Americans account for only 12 percent of all illegal drug use, they make up 44 percent of all drug arrests. This racial disparity has drawn the attention of policy makers, politicians, and the courts. Many observers attribute much of it to the severe penalties imposed for offenses involving crack cocaine, which lead to the arrest and conviction of primarily black defendants.

Smokable cocaine, or crack, originated in the 1980s in U.S. inner cities. Because crack costs much less than powder cocaine, it quickly became the choice of poor drug users. In response to the resulting increased use of crack, Congress passed the Anti-Drug Abuse Act of 1986 (Pub. L. No. 99-570, 100 Stat. 3207 [codified as amended in scattered sections of 21 U.S.C.A. §§ 801–970]).

The 1986 law regards one gram of crack as equivalent to one hundred grams of powder cocaine. The U.S. SENTENCING COMMISSION adopted this ratio when it revised the Sentencing Guidelines that same year. In 1988 the Anti-Drug Abuse Act was amended to establish new mandatory minimum sentences. The amendment's sponsor, Representative E. Clay Shaw, Jr. (R-FL), said of the tougher sentences: "Crack is an extraordinarily dangerous drug so we must take extraordinary steps to combat it."

Under federal law the offense of selling five grams of crack, for example, is punishable by a mandatory minimum sentence of five years. To receive the same sentence for trafficking in powder cocaine, an offender would have to sell five hundred grams. Thus, small-time crack dealers can receive longer prison terms than cocaine wholesalers. In addition, mandatory minimum sentences for crack offenses mean that PLEA BARGAINING for a reduced sentence is not available. First-time offenses involving crack or powder cocaine are also differentiated. First-time offenders convicted in powder cocaine cases often receive PAROLE and drug treatment; most first-time offenders in crack cases receive jail sentences.

By the early 1990s, the effect of these harsher laws on African Americans was evident. In a survey of 1992 sentencing data, the U.S. Sentencing Commission found that 92.6 percent of offenders sentenced for crack offenses were black, whereas 4.7 percent were white. With regard to cocaine offenses in general, 78 percent of offenders were black, and 6 percent were white.

The Bureau of Justice Statistics in the JUSTICE DEPARTMENT concluded in 1993 that blacks are jailed longer than whites for drug offenses. The bureau explained that "the main reasons that African Americans' sentences are longer than whites' … was that 83 percent of all federal offenders convicted of trafficking in crack cocaine in guideline cases were black, and the average sentence imposed for crack trafficking was twice as long as for trafficking in powdered cocaine."

Some critics believe that the racial disparities in sentencing are a result of intentional discrimination. They argue that race has long been an issue in drug enforcement laws, from concerns about Chinese laborers and opium at the turn of the twentieth century to fears about blacks and cocaine in the early 1900s that produced headlines such as "Negro Cocaine 'Fiends' Are a New Southern Menace." Other critics take the suggestion of conspiracy further, arguing that the comparatively heavy drug use (as well as violence) in the black community is a result of deliberate attempts by whites to foster black self-destruction.

Not all critics believe that the racial disparities created by the war on drugs are intentional. As of 2003, at least one state court had struck down enhanced penalties for crack offenses as a violation of EQUAL PROTECTION under the state constitution (State v. Russell, 477 N.W.2d 886 [Minn. 1991]). In that case the court said that state law treated black crack offenders and white powder cocaine offenders unfairly, although that result may have been unintentional.

On the federal level, several convicted crack offenders have argued that the discrepancy between sentences for crack and powder cocaine violates equal protection or DUE PROCESS, but nearly every appellate court has rejected this argument. In May 1996 the U.S. Supreme Court held that statistics showing that most crack defendants are black do not in themselves support the claim of SELECTIVE PROSECUTION. Instead, the Court ruled, the burden is on defendants to prove that "similarly situated defendants of other races could have been prosecuted, but were not" (United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687).

Lawmakers have also rejected the assertion that racial discrepancies are unjust. In April 1995 the U.S. Sentencing Commission proposed abandoning the guidelines. Determining that the penalties were too harsh, the seven-member commission voted 4 to 3 to equalize penalties for crack and powder cocaine. Although most black members of Congress supported changing the sentencing guidelines, conservatives argued that crack sentencing had nothing to do with race and that revising the guidelines would allow serious offenders to serve little or no time. The penalties remained intact.

Many liberal organizations, including the AMERICAN CIVIL LIBERTIES UNION, have decried the war on drugs due to the disproportionate impact on racial minorities. The Drug Policy Alliance, which claims to be the leading organization promoting alternatives to the war, has held a number of national conferences on this issue. In 2001, a group of politicians, celebrities, religious leaders, and advocates for drug policy reform submitted a letter to the secretary general of the UNITED NATIONS calling the war on drugs a "de facto form of racism."

As long as the war on drugs remains a priority for domestic policy, prosecution and incarceration for drug crimes will continue on a large scale. The challenge facing legislators, attorneys, and the courts is how to make a system that reduces the effects of drug use on U.S. society, while avoiding excessive punishment of particular societal groups.

FURTHER READINGS

Chepesiuk, Ronald. 1999. The War on Drugs: An International Encyclopedia. Santa Barbara, Calif.: ABC-CLIO.

Mahan, Sue. 1996. Crack Cocaine, Crime, and Women: Legal, Social, and Treatment Issues. Thousand Oaks, Calif.: Sage Publications.

CROSS-REFERENCES

Due Process of Law; Equal Protection; Selective Prosecution; Sentencing.

The war on drugs can be traced back to the 1960s, when illicit drugs became especially popular again. The accompanying increase in drug use led to comprehensive antidrug legislation under President RICHARD M. NIXON, whose administration introduced the metaphor of war for the drive to enforce drug laws. In the 1980s, under President Reagan, the campaign took its present form. The Reagan administration's public-relations campaign (which popularized the saying "Just say no") was bolstered by stricter state and federal drug laws. Federal spending to enforce drug laws rose from $37 million in 1969 to $1.06 billion in 1983. Over the next decade, it increased to approximately $30 billion, including the full cost of federal, state, and local law enforcement efforts, along with costs incurred by the judiciary and prison and HEALTH CARE systems. In 2003, President GEORGE W. BUSH set aside about $3.4 billion to the DEA alone in the fight against drugs.

Enforcement efforts are shared between federal and state governments. Joint federal-state task forces investigate illegal drug sales for two key reasons. First, states have declared an interest in eradicating the illegal sale and use of controlled substances through the enactment of severe antidrug laws, but they lack the necessary resources. Second, in return for their participation, state law enforcement agencies are eligible for federal funds that are crucial to their operation. Besides helping the agencies to meet administrative expenses, local undercover police officers use these funds to buy drugs so that they can arrest dealers.

As a result of these shared operations, prosecutors have broad discretion in pursuing drug offenses. They may charge defendants under federal law, state law, or sometimes both. The U.S. Constitution's protection against DOUBLE JEOPARDY (i.e., being tried twice for the same criminal action) does not apply when separate jurisdictions bring charges, and the dual-sovereignty doctrine allows successive federal and state prosecutions; however, many states prohibit prosecution in their courts if the conduct already has been the subject of a federal prosecution. Prosecutors consider several factors when deciding where to bring charges, including the relative severity of state and federal drug laws; the existence of mandatory minimum sentencing guidelines in federal court; and the comparative leniency of federal rules regarding wiretaps and informants. Although federal law generally is tougher because of its mandatory minimum sentences, nearly every state has enacted laws requiring mandatory prison time for certain drug offenses.

Prosecutors also take into account the kind of drug involved. Under federal sentencing guidelines, crack cocaine is treated much more harshly than is powder cocaine. Prosecutors also may seek civil fines and civil FORFEITURE of property.

The number of individuals charged with drug offenses by the federal government rose from 11,854 to 29,306 between 1984 and 1999. The percentage of crimes prosecuted by the federal government likewise increased. In 1984, 18 percent of referrals by federal prosecutors involved drug offenses. This number increased to 32 percent in 1999. Between October 1999 and September 2000, the federal government successfully prosecuted 24,206 drug defendants. Ninety-one percent of those convictions resulted in incarceration.

The majority of federal drug offenses involve marijuana, powder cocaine, crack cocaine, and methamphetamine. In 1999, federal officials made 38,288 arrests for drug offenses. Thirty-one percent of those cases involved marijuana, while 28 percent involved powder cocaine; 15 percent involved crack cocaine; and 15 percent involved methamphetamine. The remaining 11 percent involved opiates and other types of drugs.

On February 12, 2002, President George W. Bush announced the creation of the National Drug Control Strategy. The core principles include (1) stopping drug use before it starts; (2) healing America's drug users; and (3) disrupting the drug market. The goals of the initiative include the reduction of drug use by ten percent in the first two years, and by 25 percent over the first five years. The DEA is largely responsible for carrying out this strategy.

In addition to domestic efforts to police drug sales, international efforts are part of the war on drugs. These efforts include interdiction by federal law enforcement agents at the U.S. border to prevent drugs from entering the country. The federal government has also posted DEA agents in other countries, such as Bolivia and Colombia, as part of a broader campaign to prevent the flow of drugs into the United States. Throughout the 1980s and 1990s, the United States applied diplomatic pressure to the governments of Bolivia and Colombia to persuade them to end drug production in their countries. In order to continue receiving U.S. aid and government-backed loans, foreign nations have had to cooperate with the antidrug initiatives of Washington. In March 1996, President BILL CLINTON cut off such aid to Colombia for lack of cooperation.

The funding in Colombia did not end in 1996, despite a strong opposition to the policies against funding the drug war through South American countries. The United States has invested an estimated $30 billion in the war on drugs in Latin America, yet the influx of drugs into the United States continues. An estimated 80 percent of drugs in the United States originate in South America, many in Colombia.

In 2000, President Clinton approved a spending bill that called for $1.3 billion in aid to the Colombian government. Members of Congress expressed concern that financing the Colombian government would spread the ongoing civil war in that country, which claimed more than 35,000 lives in the 1990s. Much of the bill was designed to provide Colombia with military equipment, and it also called for training of Colombian soldiers. Colombian leaders promised that the aid would cut drug production in that country by half.

The courts have played a significant role in the war on drugs. Broadly speaking, under the FOURTH AMENDMENT, they have expanded the power of the police to conduct SEARCHES AND SEIZURES. In a series of decisions during the 1980s and 1990s, the U.S. Supreme Court ruled that police officers have the power to conduct warrantless searches of bus passengers, car interiors, mobile homes, fenced private property and barns, luggage, and trash cans. In Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993), the Court held that no warrant was needed to seize narcotics that are recognizable by "plain feel" while an officer is frisking a suspect for concealed weapons.

In contrast, the Court restricted the power of state and federal governments to use civil fines and civil forfeiture of property as penalties in drug cases. In a 1989 case that had a substantial bearing on prosecutorial initiative in drug enforcement, the Court held that the government could not recover both a criminal fine and a civil penalty in separate proceedings (United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487). In 1993, the Court curtailed civil forfeiture laws by ruling that confiscation of property is subject to the Eighth Amendment's protections against excessive fines (Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488).

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