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Heather Schoenfeld

Excerpted from: Heather Schoenfeld, The War on Drugs, the Politics of Crime, and Mass Incarceration in the United States, 15 Journal of Gender, Race and Justice 315 (Spring 2012) (230 Footnotes Omitted).


In November 2010, California voters narrowly defeated a ballot initiative to legalize the possession and sale of up to an ounce of marijuana. Support for the initiative reflected both a shift in public attitudes about drug use and the reality of the largest recession since the Great Depression. After signing a previous bill into law that decriminalized the possession of small quantities of marijuana, Republican California Governor Arnold Schwarzenegger stated, [I]n this time of drastic budget cuts, prosecutors, defense attorneys, law enforcement and the courts cannot afford to expend limited resources prosecuting a crime that carries the same punishment as a traffic Another Republican, Newt Gingrich, recently called on conservatives to address the astronomical growth in the prison population, with its huge costs in dollars and lost human Citing a price tag of $68 billion (300 percent more than 25 years ago) and recidivism rates above 50%, Gingrich and the Right on Crime initiative advocate punishing low-risk offenders through lower-cost community Schwarzenegger's action and Gingrich's initiative are just two examples of lawmakers' recent efforts to reconsider some of the harsh crime-control strategies of the last three decades, including the war on drugs.

Liberal advocates and social commentators, such as George Soros, have long maintained that the war on drugs has been a costly failure. The litany of critiques is familiar: it does not stem the use of drugs, it disproportionately targets racial minorities, and it destroys the livelihoods of farmers around the world. Yet only recently, in a climate of steep state budget deficits, have lawmakers called drug law enforcement into question in the name of saving scarce state resources. Admittedly, these efforts are selective, but combined with a powerful liberal critique of the war on drugs and pressure from some foreign leaders to change U.S. policy, they arguably represent the first cracks in an increasingly unsustainable prison nation.

A dozen states have already decriminalized marijuana to some extent, and state legislators from across the country cite the potential savings in law enforcement, court, and jail costs. Potential tax receipts and cost savings similarly motivate a popular initiative in Oregon to legalize the possession, sale, and personal private cultivation of marijuana:

Tax dollars should be used to pay for schools, health care and transportation not the 4' x 6' cell of a non-violent offender. Reform will free up tax dollars and precious public safety resources. . . . Farmers cannot even grow hemp because the government categorizes hemp and cannabis under the same umbrella . . . .

Nationally, the Just Say Now organization cites the growth of the prison population as a primary reason to support marijuana legalization. Other states have recently dismantled mandatory minimums, reduced sentences, or restricted the use of prison for drug offenses. In New York, a decade-long campaign to repeal the infamously harsh Rockefeller Drug Laws finally led to a major reform bill in April 2009. The Rockefeller Drug Laws mandated long prison terms for both the possession and sale of even small amounts of drugs. At the height of the drug war in 1990, 46% of inmates committed to New York state prisons were sentenced for a drug offense. By 2009, the State was spending $525 million a year to keep 12,000 drug offenders in prison. The reforms restore discretion to judges to sentence first-time and addicted drug offenders to treatment and alternatives to incarceration, and they allow resentencing of some currently incarcerated people who are serving sentences under the old According to the New York State Division of Criminal Justice Services, in the first year after the reforms, courts diverted 1000 drug offenders who would have served state prison sentences under the old laws.

On the federal level, in August 2010, President Obama signed the Fair Sentencing Act, reducing the infamous sentencing disparity between crack and powder cocaine from a ratio of 100:1 to 18:1. Although the law does not eliminate the disparity as many had advocated, it is a major political achievement for supporters who managed to overcome fifteen years of resistance to change. The mandatory minimum sentences for crack and powder cocaine were originally passed as part of the federal war on drugs in the Anti-Drug Abuse Act of 1986 and 1988, which additionally provided grants to state and local authorities for drug law enforcement. The law and its attending political rhetoric shaped law-enforcement practice around the country, with drastic consequences for black Americans. As Doris Marie Provine highlights in her recent book, Unequal Under Law: Race and the War on Drugs, by 1992, in over half of the federal courts that tried drug cases, every single defendant was a racial minority. At the state level, prison systems saw a spike in prison admissions for black American drug offenders.

Lawmakers' reform efforts have coincided with legal scholars' new focus, and call for reform, on the war on drugs and mass incarceration. Sociologists first coined the term mass imprisonment to signal a unique and worrisome phenomenon worthy of study. Since then, social scientists have investigated the causes and consequences of the growth of imprisonment in the United States. Only recently have legal scholars (and particularly black legal scholars) published important complements to this literature. Some of the most thought-provoking of these new critiques single out the war on drugs as the cause of the racial makeup of the nation's prisons and jails and the no-holds-barred attitude that informs our criminal justice policy.

Lawmakers, activists, and legal scholars' focus on drug offenses as a means of chipping away at mass incarceration in part assumes that the war on drugs drove the expansion of the prison population during the last thirty years and that drug offenders continue to make up a significant proportion of prison inmates. While it is true that drug offenders constitute the majority of inmates in federal prison, federal inmates make up less than 10% of the total incarcerated population in the United States, and less than 20% of state inmates are currently incarcerated for drug offenses. In fact, it is not well known how drug offenses contributed to the growth of incarceration at the state level. This Article addresses this lack of knowledge in two regards. First, it summarizes findings on the causes of aggregate state incarceration growth (i.e., all states considered together). These analyses narrow the scope of inquiry to specific stages of criminal justice processing and specific offenses that contributed to the growth in distinct time periods. Second, this Article uses a case study of one state, Florida, to investigate the possible policies and practices that actually caused incarceration rates to increase, even as crime rates significantly declined. In this way, this Article uses the case study of Florida to better understand the role of drug offenses in the national trend to mass incarceration.

This Article argues that the best way to understand incarceration growth is to consider the growth in three distinct time periods. Using this framework, both the aggregate state-level analysis and the case study of Florida demonstrate that while the war on drugs was the main cause of incarceration growth in the initial period, a change in prosecutors' abilities to secure convictions for a variety of offenses, an increase in the time served for all inmates, and (to a lesser extent) an increase in use of incarceration for parole violations and DUI, weapons, and other offenses better explains the continued growth in incarceration rates. Importantly, however, the case study demonstrates that mass incarceration was predicated upon the war on drugs. This suggests that racialized public policy--in the form of the war on drugs--has had a prolonged and lasting negative impact on substantive justice.