Stephanie R Bush-Baskette. Encyclopedia of Prisons and Correctional Facilities. Editor: Mary Bosworth, Volume 2, Sage Reference, 2005.

Although the popular phrase war on drugs is frequently used, it is seldom defined. At least two methods can be used to determine when a national war on drugs begins. The first involves identifying key legislation and presidential announcements. The second involves the direct measurement of changes in the allocation of criminal justice resources to the enforcement of drug laws. The United States has a history of enacting antidrug laws at both the local (city and state) and national (federal) levels of government. The following discussion focuses on the federal level, because many states have followed the federal model in enacting the laws that underlie their drug policies. Furthermore, most federal prisoners are serving time for drug offenses; approximately 60% of federal prisoners are incarcerated for drug offenses, compared with fewer than 3% who are incarcerated for violent offenses.

History

The first drug law in the United States was passed as an ordinance in 1875 by the city of San Francisco. This local legislation outlawed the smoking of opium in opium dens in response to fears that Chinese men were “corrupting” white women who visited the dens. The Harrison Act of 1914 was the primary legislative vehicle implemented by the federal government to regulate narcotics in the United States. The federal government began to control the use of cocaine in the early 1900s and that of marijuana in 1937. These laws also linked drugs to specific minority groups. For example, politicians and news reporters fanned fears that “cocainized Negroes” might become impervious to bullets or engage in wild sexual rampages. Lawmakers used marijuana charges as a mechanism for stigmatizing and deporting Mexican immigrant workers.

If presidential announcements and legislative initiatives are used as indicators of the beginning of a war on drugs, four benchmark periods are identifiable: 1972, 1982, 1986, and 1988. President Richard M. Nixon declared the initial “war on drugs” in 1972. In February 1982, President Ronald Reagan also declared a “war on drugs.” Until 1985, legislators, the mass media, and the public largely ignored these declarations. The goals of these antidrug campaigns were to reduce drug use by individuals, stop the flow of drugs into the United States, and reduce drug-related crimes.

The focus changed with the federal enactment of the Anti-Drug Abuse Acts of 1986 and 1988. These acts moved away from targeting major drug dealers and providing treatment for users and toward punishing users and street-level dealers. In 1986, the amount of money spent for the direct costs of the war on drugs at local, state, and national levels was $5 billion. Just 10 years later, in 1996, the annual total expenditure for the war on drugs across all levels was approximately $100 billion, with two-thirds of that being spent on law enforcement.

Criminal justice statistics further document the federal government’s increasingly harsh response to drug offenders between 1982 and 1991. During this period, the number of persons who were prosecuted for drug offenses in the federal system declined. Of those who were charged, however, the number who were convicted and incarcerated for drug offenses increased significantly. Furthermore, given the mandatory minimum sentences included in the drug laws of 1986 and 1988, federal drug offenders who had minor or no past criminal records received much longer sentences than similarly situated offenders had received prior to the Anti-Drug Abuse Act of 1986. Current U.S. drug policies punish offenses related to crack cocaine more severely—by a ratio of 100 to 1—than those involving other forms of cocaine. For example, a person who is convicted of possessing 5 grams of crack is subject to a mandatory minimum sentence of 5 years; the threshold amount for the same sentence for powdered cocaine is 100 times as much: 500 grams.

Role of the Media and Politics

Politics and the media have both played important roles in the development of the current drug policies. The federal drug policies contained within the acts of 1986 and 1988 resulted from intense media attention preceding and coinciding with national elections. Beginning in 1984 and continuing into 1985, the media began reporting about “rock” cocaine in Los Angeles. In 1985, there was a newspaper account of cocaine abuse in New York that was followed later that year by discussion of crack cocaine. These reports were rather obscure, and the public was not overly concerned. However, in 1986, Len Bias and Don Rogers, two well-known athletes, died, allegedly as a result of their use of crack cocaine. At that point, the media began to focus on crack as “the issue of the year.” All forms of news media (e.g., newspapers, magazines, and television) began to allocate unprecedented time and attention to covering crack cocaine. It was later determined that Bias and Rogers had not died from crack use, but rather from the use of powdered cocaine. This detail, however, received minimal attention, and media and policymakers’ attacks on crack cocaine continued. By the time of the elections in November 1986, at least 1,000 stories concerning crack cocaine had appeared in the national print media alone. The major television networks had aired documentary-style programs that defined crack cocaine as a national epidemic. Crack cocaine became an ideal campaign issue for politicians.

In late October 1986, only days before the national elections, Congress enacted the Anti-Drug Abuse Act (ADA) of 1986. This legislation delineated the parameters of the current war on drugs. The emphasis of the ADA of 1986 was on punishment and social control. The ADA increased prison sentences for the sale and possession of drugs, eliminated probation or parole for certain drug offenders, increased fines, and provided for the forfeiture of assets. Most of the funds made available as a result of the ADA were directed toward law enforcement, expansion of prison facilities, interdiction, and efforts to reduce the supply of drugs. Congress expedited the enactment of the Anti-Drug Abuse Act of 1986. No committee hearings were held, and little in the official record regarding the act explains how the aforementioned 100 to 1 ratio for powdered cocaine to crack cocaine was developed. The record indicates that other ratios were considered, such as 50 to 1 in HR 5484 and 20 to 1 in S2849, which was sponsored by Senate Majority Leader Robert Dole on behalf of the administration. The reasons cited for the focus on crack include the following:

1. Congress viewed the drug problem as a national “epidemic” in 1986 and considered crack to be the leading drug.
2. Congress deliberately differentiated crack from powdered cocaine.
3. Congress believed that crack was more dangerous than powdered cocaine and so decided to treat it differently.
4. Congress wanted the sentencing to be consistent with other mandatory minimum sentencing provisions and so decided to punish major traffickers with a mandatory minimum sentence of 10 years and serious traffickers with a mandatory minimum sentence of 5 years.

In order to select the appropriate level of punishment for each drug contained in the legislation of 1986, the subcommittee ordered staff to consult with agents of the Drug Enforcement Administration and prosecutors to determine the distribution patterns for various drugs, as well as to determine the amounts that would indicate a person was working at a high level within the market. The subcommittee established the threshold amounts for crack and powdered cocaine without the benefit of hearings.

In 1987, after the national elections and passage of the ADA of 1986, the media and the public turned their attention and concern to issues other than crack and drug abuse. Polls conducted by the New York Times and CBS found that only 3%-5% of the public considered drugs to be the most pressing social problem. However, in the 1988 presidential election, politicians again focused on drugs, particularly crack cocaine. Congress passed a subsequent Anti-Drug Abuse Act on October 22, 1988, approximately one and a half weeks before the election. The 1988 act included more funding for treatment and prevention and established the Office of Substance Abuse Prevention as a cabinet-level post. Most of the funding continued to be directed toward law enforcement and punishment, and enhanced penalties for certain crack cocaine offenses were enacted. Most important, the 1988 act amended 21 U.S.C. §844 to make crack the only drug and form of cocaine with a mandatory penalty for the first offense of simple possession. A person who possesses more than 5 grams of a substance that contains crack is to be punished with imprisonment for at least five years. Each prior conviction for possession of crack reduces the threshold amount for which a person may receive a five-year sentence. This type of penalty is not applied to other drugs. The first conviction for possession of any quantity of any other drug, such as heroin or powdered cocaine, results in a maximum penalty of only one year. In contrast, an offender found guilty of possessing powdered cocaine can be subjected to a mandatory minimum sentence of five years only if the amount equals or exceeds 500 grams.

Mandatory Minimum Sentencing

Mandatory minimum sentencing policy has become the primary weapon in the war on drugs. This policy requires judges to hand down sentences that are no less than the sentences prescribed in the applicable laws. No matter what mitigating or unusual circumstances exist, judges cannot exercise discretion and give sentences lower than the minimums that are outlined in the laws. Mandatory sentencing schemes began in the United States in 1790 for capital offenses. They were used extensively in the Narcotics Control Act of 1956, where they were applied to a great number of drug offenses related to importation and distribution activities and provided mandatory ranges from which a judge could choose a sentence. The ultimate goal of the mandatory provisions, as set forth by the Senate Judiciary Committee for the Narcotics Control Act, was to reduce violations of drug laws through deterrence and incapacitation.

During the years subsequent to passage of the Narcotics Control Act of 1956, Congress determined that mandatory minimum sentences were not reducing the number of drug law violations. In response, the legislators enacted the Comprehensive Drug Abuse and Control Act of 1970 and repealed most of the mandatory penalties for violations of drug laws. Congress had become convinced that mandatory minimum sentencing interfered with the rehabilitation of offenders. Furthermore, the minimums inappropriately infringed on judicial discretion and did not assist in deterrence because prosecutors felt the penalties were too severe and so avoided charging offenders with violations that would invoke the penalties.

Nonetheless, in 1984, Congress reenacted a number of mandatory minimum sentencing schemes that focused on violations of the drug laws. The changes included mandatory minimum sentences for drug offenses committed near schools and for all serious felonies. Less serious felonies had to be punished with at least one year probation. Mandatory minimum sentences or enhancements of sentences were also brought in for the use of or carrying of a firearm during the commission of certain violent offenses. These laws at the federal level followed the legislative initiatives of the states, as mandatory minimum sentences for drug offenses were already enacted in 49 of the 50 states by 1983 (U.S. Sentencing Commission, 1997, p. 9).

Several years later, Congress enacted the Omnibus Anti-Drug Abuse Act of 1988. This legislative initiative singled out crack cocaine, specifying mandatory imprisonment for simple possession of more than 5 grams and applying the same penalties as the underlying substantive act to cases of conspiracy that involve the distribution, importation, or exportation of drugs. All persons convicted in the conspiracy, regardless of their roles, were required to receive the same sentence as mandated for the substantive offense. The role of the offender convicted of a drug offense at the federal level can be considered only for the purpose of sentence enhancement. If the offender played a minor role in the crime, this information cannot be used to reduce his or her sentence.

Race and the War on Drugs

One of the consequences of the most recent antidrug campaign has been its disparate impact on black and other minority men and women. Approximately 40% of the individuals admitted to state prisons for drug offenses are black, even though blacks make up only 13%-15% of all drug users. Black men and black women are arrested, convicted, and incarcerated for drug offenses at much higher rates than are whites. This disparity is not explained by black people’s use of drugs because research indicates that white people use drugs at equal and greater rates.

Antidrug policies and their administration contribute to the mass incarceration of black women and men, and poor people of all races, in U.S. prisons. The penalty structure—which focuses on crack cocaine (instead of other drugs and powdered cocaine, which whites more commonly use) and relies on mandatory minimum sentencing—has led to the increased incarceration of women in general and of black men and black women in particular. Black men represent the largest number of such inmates, but black women also have been significantly affected by the war on drugs. Between 1986 and 1991, there was an 828% increase in the number of black women who were incarcerated in the United States for drug offenses. This percentage of increase surpassed that of all other demographic groups, including black men (429%), white females (241%), Latina females (328%), Latino men (324%), and white men (106%).

Conclusion

The Anti-Drug Abuse Acts of 1986 and 1988 were developed as political responses to heightened public concern about powdered and crack cocaine that resulted from representations by the mass media. In the 1980s and 1990s, many organizations formed to oppose the “war on drugs.” Together, organizations such as the Drug Policy Alliance and Common Sense for Drug Policy have joined prison reform advocates, civil rights groups, feminist organizations, and others to reduce or eliminate prison terms for drug possession and expand and improve drug treatment. Although public attention has been somewhat diverted from crack cocaine and drug abuse in general, and public support for harsh penalties is declining, the Anti-Drug Abuse Acts of 1986 and 1988 continue to dictate the fate of tens (or perhaps hundreds) of thousands of persons convicted of drug offenses.