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Excerpted From: André Douglas Pond Cummings and Steven A. Ramirez, Roadmap for Anti-Racism: First Unwind the War on Drugs Now, 96 Tulane Law Review 469 (February, 2022) (172 Footnotes) (Full Document)


CummingsAndRamerizThe War on Drugs (WOD) transmogrified into a war on communities of color early in its history, and its impact has devastated communities of color first and foremost. People of color disproportionately suffer incarceration in the WOD even though people of color use illegal narcotics at substantially lower rates than white Americans. As a result, the WOD led to mass incarceration of people of color at many times the rate of white Americans. Indeed, as a stark illustration of the power of race in America, even after Illinois and Colorado legalized cannabis, over-policing in communities of color resulted in a substantial increase in arrests of people of color while white youth arrests declined. Thus, when police brutality against communities of color exploded into the consciousness of America in 2020, it vindicated many voices suggesting a close link to the WOD and its implicit targeting of people of color.

The WOD devolved into a literal decades-long military style offensive played out on the streets of urban and poor communities of color throughout the United States, replete with battering rams, tanks, helicopters, grenades, and SWAT tactical teams killing, maiming, and imprisoning primarily people of color. By 2020, when the durability of racial oppression exploded into the open in the United States with the killings of George Floyd and Breonna Taylor (among others), the costs of this particular mechanism of the replication of the nation's racial hierarchy became vividly clear. This Article catalogues the costs of the WOD to communities of color across America. It then uses that reckoning to fashion a legal means for ending the WOD and repairing the human and economic carnage it has inflicted on our nation.

Across the political spectrum a range of voices now recognize that the WOD failed to achieve its goals and inflicted massive costs worldwide. In fact, mainstream economics now recognizes that “[i]t is time to end the 'war on drugs' ... [which] has produced enormous negative outcomes and collateral damage.” These enormous costs include: negative health outcomes from lack of treatment, mass incarceration of people of color in particular, failing to interdict supplies, corruption of police forces and the rule of law, fostering illicit markets with accompanying violence, human rights abuses, significant macroeconomic costs to the entire nation, trillions in wasted government expenditures, and failing to secure the supply of important medicines. Within each category of costs, injuries fall disproportionately upon communities of color, which necessarily suffer from senseless destruction of human capital and productivity, to the great detriment of families and local economies. Ending the nightmare of drug prohibition and mass incarceration will require the diversion of resources now committed to the WOD to investments in those very same communities--and this Article shows the abundance of such resources.

Part II reviews the history of the WOD with a focus on the emergence of mass incarceration and the dynamics by which implicit bias and actual bias translated into disproportionate suffering in communities of color, including suffering at the hands of brutal policing in those communities. Part III builds upon Part II but seeks to quantify the costs of the continued harms of the WOD in order to identify cost-effective resolutions of this fundamental source of systemic racism in our society. Part IV critiques the first and, as of yet, primary federal legislative remedy on offer for the resolution of the WOD. It also proposes mechanisms beyond that pending federal bill for repairing the damage to communities of color inflicted upon them by the WOD. The Article concludes that repairing the damage of the WOD will require more aggressive steps than those currently on offer. Any serious anti-racist legislative remedy must immediately address the ongoing catastrophe of the WOD on communities of color as the WOD has fallen into its place following behind slavery, convict leasing, Jim Crow, and lynching as the current pernicious subordinator of Americans of color. More specifically, we argue that the federal government should utterly exit drug policing (as opposed to its regulatory role) and commit completely to the indefinite diversion of federal WOD expenditures to the communities suffering the greatest from ill-conceived drug prohibition. State competition and experimentation should displace federal prohibition for the complex problem and resolution of drug addiction and harm. The federal government should limit its focus to repairing the devastation its racist policies inflicted on communities of color across the nation.

[. . .]

The War on Drugs has devastated communities of color across the United States to the tune of hundreds of billions of dollars per year and millions of citizens of color imprisoned. It failed to reduce drug abuse or the harm from drug abuse. It spawned police brutality and gang violence. It unleashed a torrent of ruthless military style policing on poor urban citizens. The WOD has wasted trillions in government funds. Consequently, no economic harm or loss would arise from ending the WOD and many benefits would result from diverting the trillions spent on prohibition to productive investment. Ending the WOD can free resources to assist the victims of the WOD in rebuilding their lives. Importantly, the vast scale of the harm of the WOD means that anti-racist goals must begin with unwinding the impact of the WOD.

We posit that defederalization and devolution to the states to determine the best means of regulating drug abuse and addiction will operate as the best means of achieving the end of drug prohibition. The federal government necessarily imposes a one-size-fits-all solution when heterodox experimentation likely will yield the optimal approach given each jurisdiction's cultural norms and preferences. A new era of regulatory and legal innovation will displace the draconian WOD with all its human carnage and racist origins. State and local competition will test each jurisdiction's approach with tax revenues, new commercial opportunities, and social justice in the balance. Population and talent will gravitate to more successful jurisdictions.

Indeed, unwinding the harm from the WOD poses the best opportunity for anti-racist progress precisely because of the WOD's disparate impact on communities of color. This effort funds itself. Pursuit of this goal involves neither a racial purpose nor a racial classification. Expungement, community reinvestment, treatment instead of incarceration, and community policing instead of subsidized brutality could operate to help fundamentally break down the nation's festering racial hierarchy. Immediately ending the WOD therefore should top the priorities of anti-racist proponents. Given the lawless and murderous attacks of white supremacists on our democracy and the Constitution, the urgency of ending this patently unjust racial oppression now must top the political agenda of all Americans committed to freedom.

andré douglas pond cummings is Associate Dean for Faculty Development & Charles C. Baum Distinguished Professor of Law and Co-Director of the Center for Racial Justice and Criminal Justice Reform, University of Arkansas at Little Rock William H. Bowen School of Law.

Steven A. Ramirez is Abner J. Mikva Professor of Law, Loyola University Chicago.

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