The ACLU this month drew renewed attention to an old problem: America's drug policies are racially biased.
The report, based on new data from all 50 states and the District of Columbia, concludes that African Americans are 3.73 times more likely than whites, on average, to be arrested for marijuana possession.
What explains this disparity?
Historically, drug laws have been used for racial control. Smoking opium was made illegal to limit Chinese competition for white jobs in California. Marijuana was outlawed to control Mexicans, and cocaine laws mitigated blacks entering the labor pool.
Later, the perceived dangers of crack cocaine were used to justify increasingly harsh sentencing policies, with punishment ratios of 100:1 (crack to powder). An entire industry grew out of the enforcement of these new drug policies.
After President Richard Nixon in 1971 declared a “full-scale attack on the problem of drug abuse in America” and launched what later came be known as the “war on drugs,” politicians quickly saw the value of the “tough on crime” rhetoric at the ballot box.
Since then, America has spent $1 trillion on law enforcement and made over 45 million arrests. Yet there is no appreciable change in the availability of illegal drugs or their price on the street.
America imprisons more people than any country in the world (2.3 million)—and many of those people are behind bars because of their involvement with drugs.
According to the ACLU report, 88 percent of the 8.2 million arrests between 2001-2010 involving marijuana were for simple possession.
We are not arresting drug sellers or kingpins, but rather individuals with marijuana in their pockets—and people of color get four times the attention.
And we have concentrated our policing efforts on our poorest neighborhoods, where the signs of drug use are most visible, and where the majority of residents are people of color.
In those neighborhoods, drug use is driven out into the open, rather than remaining behind closed doors. That does not signify heightened drug activity; it just makes it easier to prosecute.
And arrests equal money. An entire industry is devoted to locking people up: in 2010 the states spent $3.6 billion on marijuana enforcement alone. Many players have an economic stake in the continuation of these same failed policies.
But there are other costs to this approach. By repeatedly arresting poor people of color, we instill continual conflict between the police and entire communities. Serious crime will not be reduced without meaningful participation from residents, but no one will help their persecutor, real or perceived.
We must change this dynamic.
The ACLU statistics mean that young African Americans are nearly four times as likely to get a criminal record early in life. That is a strike on every employment application, making it even harder in a difficult economy to get a job.
How do we change course?
If we replace the criminal penalties for simple marijuana possession with a violation (like a traffic ticket), we also remove the incentives to make the arrests in the first place.
Let's treat drug use as a public health matter, focus police efforts elsewhere, and allow majority rule to define democracy (over 50 percent of Americans support legalization of marijuana).
We should then consider taxing and regulating the sale of marijuana. If it's controlled, like alcohol, we will have a better chance of reducing violence, educating users, and raising much-needed revenue for states.
Harder drugs deserve their own analysis. Starting with marijuana will only serve to inform our future drug policy choices, and just might lead to the reversal of the senseless mass incarceration of today.
We should shift away from arrest statistics and making money, to protecting the community from violence and helping addicts, in order to provide opportunity to more of our citizens.
Washington and Colorado are on their way; we'll learn a lot from their experiences.
Finally, let's not spend time demonizing police officers for acting on poor policies. Let's change their environment from institutional bias to one of mutual trust between the police and the people.
If we view simple possession of marijuana as an indicator of other needs (employment, emotional, addiction, attention, recreation) rather than a crime with lifelong consequences, we start the healing process.
We don't need to arrest people for possessing marijuana anymore. Let's apply the $3.6 billion savings to educate our young, treat our addicts and employ our citizens, rather than arrest and incarcerate them.
Let's offer help in these cases, and mandate consultation with counselors outside of the court system (job trainers, psychologists, educators, drug treatment) that assumes potential rather than punishment.
The criminal justice system doesn't provide the answer to drug possession, it merely cycles through the targeted participants.
If we're smart on crime, our communities will not only be safer, but they will begin to reflect our values too.
David Kuhn is a journalist, lawyer and documentary film producer, and spent 10 years as a public defender in Manhattan criminal courts. He is currently deploying Eugene's Jarecki's award-winning film “The House I Live In” for positive reform. He welcomes comments, and can also be contacted directly at : firstname.lastname@example.org.