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Illegal Drugs and Civil Rights

David W. Murray & John P. Walters

The debate about enforcement of the drug laws has raised the question of what is required to support civil rights.

Drug use is certainly an issue of social class. It victimizes the poor and vulnerable even more than it hurts the affluent, whose resources can be deployed to offset the social and health impact of drug use, provide for private specialty drug treatment, and keep out the violence of drug trafficking, which besets many poor and minority neighborhoods.

Further, if charged under drug statutes, the affluent and powerful frequently travel a more forgiving path under the law. Indeed, when it comes to incarceration, the poor are more likely to feel the consequences of violating the law.

But surely the greatest injustice is to live in communities where drugs are rampant and open dealing threatens and traps families. On October 16, 2002, that point was driven home with tragedy.

Responding to a project led by then-Mayor Martin O’Malley, the residents of Baltimore, Maryland, were encouraged to stand up and fight back against street dealing. The “Believe” campaign was launched because, it was said, the drugs on the street were getting out of control.

The city of Baltimore was already in steep decline. A population of over 900,000 during the 1960s had fallen to roughly 640,000. Drug violence was worsening. Overdose deaths were frequent. The criminal justice system was plagued by witness intimidation. And the police were fighting a losing battle.

Angela Dawson, who lived in the Oliver neighborhood with her husband and five young children, was one of those who decided to fight back. But when she reported crimes to the police, drug dealers threw bricks and Molotov cocktails through her Preston Street home’s windows. Police tried to protect Mrs. Dawson, her husband Carnell, and their five young children, and even offered to relocate them. But Angela Dawson would not run away. In the early hours of October 16, 2002, a drug dealer out on probation smashed in the Dawsons’ front door and set their house on fire, ultimately killing the entire Dawson family.

Mayor O’Malley would lament that a family that was such a strong supporter of the “Believe” campaign would die of such terrible violence. Congressman Elijah Cummings, who continues to represent the neighborhood, spoke out forcefully:

Drug gangs cannot be allowed to rule our court system through intimidation. Children should not fear stray bullets as they sit in front of their homes. Families await a day when they can sleep soundly knowing that the drug gangs are no longer lurking within their community. Baltimore City’s fight against these drug gangs is not a war America can afford to ignore; and retreat is not an option. (November 14, 2002, in the House of Representatives)

Later, Cummings supported legislation authorizing $7 million for the High Intensity Drug Trafficking Area (HIDTA) program to facilitate witness protection and citizen cooperation with police in communities ravaged by drug violence.

The national data for the toll that drug use takes on American society are staggering. According to a 2011 study from the Department of Justice (using 2007 data), the cost to society of illicit drugs is $193 billion a year.1 But the human impact is even greater.

There were more than 1.2 million Emergency Department episodes due to illicit drug use in 2011 (the most recent year for which data is available).2 And the African American community has been especially ravaged by drug use. More than 3,800 African Americans die each year from drug-induced causes (at a rate of 9.2 per 100,000 population) while 1.4 million are in need of drug abuse treatment (1.2 million of which are not receiving the necessary care).3

Surprisingly, however, it turns out that it is not the scourge of drugs and their impact on minority communities that many who talk about drugs have in mind when they call for social justice. Rather, they have set their sights on efforts to resist drugs.

For instance, Vanita Gupta, formerly of the American Civil Liberties Union (ACLU), and now Acting Assistant Attorney General for the Civil Rights Division of the Department of Justice (pending confirmation by the United States Senate) argues that the laws against drugs are the real threat. In fact, Gupta’s signature line is that the “war on drugs has been a war on communities of color.” Gupta has further said that states should “follow Colorado and Washington by taxing and regulating marijuana” and that “millions” are wasted on “unnecessary enforcement.”4

The focus on marijuana legalization trades on the public perception that the drug does little damage, and hence, that any criminal justice penalty for its use is an unnecessary affront. In fact, marijuana use does serious harm, and its legalization promises more use by the most vulnerable in communities like Angela Dawson’s Oliver neighborhood.

Further, legalization does not on its own eliminate the black market or local and transnational criminal organizations, which profit—now alongside legal marijuana vendors in Colorado, Washington state, and elsewhere—off the addicted. In fact, trafficking organizations deliberately enter legalization areas where they find less risk of enforcement actions. Law enforcement documentation shows that Colorado has become a smuggling center for the illicit supply of marijuana in 40 states.5 Poor and minority communities suffer most from this trafficking, and the violence and fear that are its hallmark.

A comprehensive accounting of the health damage, particularly to youth, of marijuana is available elsewhere, but a short summary of the damage includes the following:

  • Marijuana use, particularly heavy use at high potency during developmentally sensitive periods for the brain, is devastating. Structural damage to important brain centers has been documented, along with substantial loss of IQ for chronic use into adulthood, as well as memory and learning impairment, increased susceptibility to psychotic episodes, loss of motivation, as well as further associations with school dropout and delinquent and criminal behavior, and risk to the fetus through use by pregnant teens.
  • Marijuana is a gateway to other drug use; heavy use of marijuana in youth clearly increases the risk of subsequent heroin or cocaine use many times over.

Compounding these effects is the impact on the disadvantaged, the vulnerable, and the young struggling with failing schools, broken homes, and jobless neighborhoods. To eliminate the role of the law in drug use by legalizing marijuana is foolish and irresponsible. To do so behind the claim of supporting civil rights is dishonest and cruel.

The basis for proponents’ claims of civil rights injustice is the notion of “disparate impact” under the application of the law. African Americans are arrested and incarcerated at rates greater than their share of the population. Further, because they suffer criminal penalties at rates greater than their use of drugs is said to warrant, drug laws must be reassessed.

For instance in 2011, the ratio of black to white drug arrests per 100,000 population was about 2.7 to 1.6 And this disproportion is for arrests for all drug offenses, not just marijuana offenses. Does this disparity follow higher drug use by African Americans?

Nationwide, according to the 2013 National Household Survey on Drug Use and Health (NSDUH), African Americans self-report drug use rates that are somewhat higher than other races.

African Americans represent about 13 percent of the population but are about 30 percent of drug arrests, a rate 2.3 times greater than their share of the population. African Americans self-report in surveys drug use rates that are about 11 percent higher than whites, 19 percent higher than Hispanics, and 239 percent higher than Asian Americans.7 Clearly the difference in rates of use between African Americans and whites and Hispanics is nowhere near the disparity in arrests.

However, African American rates of drug use may, in fact, be even higher than the self-reports found in surveys. The NSDUH is based on the relatively stable population found in households, and cannot measure, for example, the homeless, where African Americans are found disproportionately and where drug use is frequent.

Similarly, African Americans were 37.4 percent of the inmates in federal prison—another population not measured in the NSDUH sample—compared to 59.2 percent who were white.8 Year over year, roughly 50 percent of prison inmates are drug dependent.9

Further, according to a 2013 drug bioassay study of males arrested for all crimes in major metropolitan centers, those who had drugs in their system at the time of arrest and booking ranged from 63 percent in Atlanta to 83 percent in Chicago. The most common drug found was marijuana.

African Americans were affected disproportionately as the study showed, constituting 80 percent of all arrestees in Atlanta and 76 percent in Chicago.10 (Again, these were arrests for any crime, not just drug offenses.)

The point is, to the degree that both homeless and imprisoned populations are substantially composed of African Americans, and are likely to have drug use rates greater than the household population, it follows that African Americans are more likely to be undercounted in terms of actual drug use prevalence by surveys that examine only those in households.

Still, whatever the differential rates of drug use, they are unlikely to explain fully the disproportionate racial impact of arrests. What are the criminal justice facts?

  • In 2012, there were 1.5 million drug violation arrests (12.7 percent of the total number of arrests).
    o Whites were arrested at a rate of 419.5 per 100,000 population for drug abuse violations;
    o African Americans at a rate 2.7 times greater (1,116.7 per 100,000 population).
  • For the specific offense of drug trafficking:
    o Whites were arrested at a rate of 67.7 per 100,000 population;
    o African Americans at a rate 3.6 times greater (242 per 100,000 population).11
  • Looking at all sentenced state and federal prisoners (using 2013 data):
    o White males were incarcerated (for all crimes) at a rate of 466 per 100,000 population;
    o African American males at a rate six times greater (2,805 per 100,000 population).12

Criminologists have offered other dimensions of the criminal justice situation, beyond race, to explain some of the extant disparity in the drug arrest differential, such as the concentration of the African American population in urban neighborhoods that face intensive policing, and where street corner drug dealing and use are more conspicuous.13

But it is important to remember that the “disparate impact” realization is not confined to the drug laws.

African Americans are at risk of arrest for multiple non-drug criminal offenses disproportionate to their population share. For instance, they are 38.7 percent of all violent crime arrests. More importantly, African Americans are victimized by these crimes disproportionately, being, for instance, nearly 50 percent of homicide victims.

No definitive conclusion can be reached regarding the strictly social science dimensions of the arrest and incarceration differential for African Americans as a function of the drug laws. That said, the following circumstantial features of the situation can explain a great deal of the observed facts.

African Americans drug use rates, once one accounts for differential undercounts in standard surveys, are higher than commonly assessed. Disproportions in the type of drug offense (such as a preponderance of trafficking charges) and the differential circumstances of the drug offense (urban, conspicuous, in high crime areas under intensified policing) further explain features of the difference in outcomes. The drug laws are not a distinct arena within the criminal justice system where racial differentials in outcomes (arrests or incarcerations) are found—the problem is general, and not a function of drug laws, per se. African American neighborhoods are particularly victimized by drug use and trafficking, which compound the impact of poverty and social vulnerability. The attribute of racial identity does not appear to be the major variable driving the disparate impact of the laws.

One should no more conclude, as Vanita Gupta does, that the “war on drugs has been a war on communities of color” than to argue that the efforts to combat other crimes are a war on communities of color. The disproportions of arrests, incarcerations, and victimization that afflict many African American communities follow disproportionate crime in those communities.

As Congressman Cummings foretold, the impact of drug use on African American communities, indeed on the vulnerable of any population, especially the powerless and the poor, is devastating. Youth fail to finish school in association with drug use. Securing employment or joining the military, critical pathways out of poverty, are threatened by the inability to pass drug screening. Poor cognitive performance linked to drug use, such as a loss of IQ, most affects those who already struggle to succeed because of family disruption, poverty, disabilities, and discrimination.

Further, preventable social pathologies such as low birth weight due to drug use by pregnant females, delinquent behavior later in life, major mental disorders, susceptibility to HIV/AIDS, domestic violence, and criminality itself are all strongly associated with drug use, and particularly heavy use in the developmentally young. The problem is not the presence of the laws against drug use; rather, the problem is the presence and use of illegal drugs.

Where there is racial injustice in the application of the law, we must seek to correct it. But dismissing the drug laws is a false solution. Drugs represent a burden on American life. The damage hurts most the weakest and at-risk. Drug use, and the violence and suffering associated with illegal drugs, robs Americans of their civil rights, perhaps as much, if not more than any other current social injustice.

Finally, the landscape is worsening. Marijuana use is now legal in Colorado and Washington state, and soon will be in Oregon, Alaska, and the District of Columbia. Marijuana use rates will surely rise as the safeguards—including the drug laws—put in place to prevent drug use are willfully dismantled by misguided elites.

The Washington Post recently reported that there were 464 opiate overdose deaths in Maryland in 2013 from illicit opiates, nearly double what it was in 2010. Still worse, opiate-related deaths in Maryland rose a further 46 percent in the first half of 2014.

The city of Baltimore has been hard hit, and African Americans there are dying daily from drug use. They deserve our help, through programs like treatment courts, and the protection of the law, to diminish the supply of heroin, and to arrest those who deal poison.

Political leaders—Republicans and Democrats—have been negligent in the face of the march towards legalization of marijuana, and indeed the recent upsurge in use of many other drugs, such as heroin. This development is a needless tragedy, and has been driven by decisions made in the current Department of Justice, which has not only turned a blind eye to the legalization of marijuana, but also failed to uphold its existing authorities to stop drug trafficking under federal law.

The results have been directly contrary to the effort to advance the civil rights of citizens. To cloak the objective of increasing legal access to drugs, including marijuana, as though it represented civil rights support for the African American community is dangerously misguided.

Perhaps Congressman Cummings can find his voice once again. Perhaps—in memory of Angela Dawson and her family—he can restore our moral compass and speak the truth as he once did about drugs and justice in America.

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