Last month, police in Ocean City, Md., tased, hog-tied and carried away a Black teenager for allegedly violating a vaping ban on the city’s boardwalk. A video of the incident quickly went viral and drew immediate criticism for being yet another example of police use of force.
But what has not been discussed enough is the overcriminalization of tobacco products and the often racially disproportionate enforcement that contributes to ongoing hostility between police departments and Black and Brown communities.
The incident also highlights how even the most well-intended legislative proposals can have very different outcomes when enforced, and is particularly alarming as Maryland lawmakers are currently considering imposing a statewide ban on all flavored tobacco products.
And Maryland isn’t alone. This week, a divided Council sent a bill banning the sale of flavored tobacco and menthol cigarettes to Mayor Muriel Bowser’s desk.
The efforts by the Council, though well-intended, will have ramifications in a city that already “produces some of the nation’s worst racial disparities in arrest and incarceration rates” according to local reporting, and could lead to similar incidents like the one in Maryland.
The proposed legislation is counterproductive in our nation’s stride toward criminal justice reforms.
Due to the popularity of menthol cigarettes among Black smokers, advocates of flavored tobacco product bans often argue that these laws will correct tobacco use disparities in Black communities. However, the Ocean City incident shows how laws meant to protect public health can be abused and result in unintended consequences.
We’ve been here before, too. With lawmakers at the federal and state level considering bans of certain classes of tobacco products, it is more important than ever that we remember the past failures of Prohibition.
Research has consistently shown that alcohol prohibition of the 1920’s was unsuccessful. It did not reduce the use of alcohol, but instead caused an eventual increase in consumption.
Additionally, underground syndicates flourished, corruption was rampant, black markets grew, and it caused an increased burden on the criminal justice system by overwhelming police, courts and correctional facilities with an influx of prisoners.
What lawmakers must realize about product bans, is that people will “find a way” to access their preferred product, something that 50 percent of long-term e-cigarette users indicated they would do in the event of a ban on their preferred product. Be it alcohol, cannabis or tobacco products, prohibition does not stop people from obtaining and using the banned product.
Those same bans, which aim to improve health outcomes, will also lead people to illicit markets that result in negative effects on health outcomes. As the outbreak of e-cigarette, or vaping, product use-associated lung injury (EVALI) at the end of 2019 showed us, tainted, illicit products can cause serious health problems.
Although illicit THC cartridges caused EVALI, the outbreak is indicative of what could happen if e-cigarette sales are forced to unregulated, illicit markets.
National organizations, including more than two dozen justice, law enforcement, legal, drug policy and direct impact organizations, have already publicly expressed their overwhelming concern with the potentially negative implications the proposed national menthol ban will have, specifically on Black and Brown communities.
A local, multi-year study revealed that Black people were arrested at “10 times the rate of white people” and that while they comprise 47 percent of the District of Columbia’s population, Black people make up 86 percent of arrests. The D.C. Council is treading into the same dangerous territory.
D.C. Council member Robert White co-introduced the bill in January but voted against it, adding, “We saw a young man killed in our city by law enforcement because he didn’t have a helmet on his scooter.
“I have seen, with my own eyes, young people surrounded by swarms of police for playing on a playground that was locked, for running down a street with no other evidence,” He added. “It may be our intention to not have a disproportionate enforcement. But that doesn’t mean anything in the real world.”
Overcriminalization of tobacco will, without a doubt, disproportionately impact individuals of color, generate a higher rate of criminal penalties and arrests, result in a surge of negative encounters with law enforcement and could pose a serious threat to public health.
Jill Snider is Criminal Justice Policy Director for R Street, a retired NYPD police officer, and an adjunct professor at John Jay College. Chelsea Boyd is a research fellow on R Street’s Harm Reduction Policy team.