The Bipartisan Origins of the Total War on Drugs

[POA]

Weekend Edition
August 21 / 22, 2004
"They Want Blood"
The Bi-Partisan Origins of the Total War on Drugs

By ALEXANDER COCKBURN
and JEFFREY ST. CLAIR

Kerry or Bush? How about the 5.9 million people here in the United States, under "the supervision" of the Justice system, either in prison, in jail, of probation or parole. Will it make a difference to these people--two million of them behind bars--which of the two sits in the Oval Office? No. Both Kerry, who misses no chance of emphasizing how he was once a "prosecutor", and Bush, pledge more cops, tougher penalties, and above all no let up in the War on Drugs which has thrown millions into the American Gulag, for ten, fifteen, 20-year sentences based on mandatory minimums and "enhancements" which a federal appeals court has now declared to have flouted the Constitutional right to a fair trial before a jury of one's peers. Ever since the mid-1980s the War on Drugs has been a bipartisan affair. Come with us on a journey back to the time when Tip O'Neill, liberal Democrat from Massachusetts, and Ronald Reagan, colluded in a terrible new chapter of a war aimed at the poor, particularly ethnic minorities, and waged ever since the late nineteenth century and the attacks on the Chinese laborers of California. This is an excerpt from Dime's Worth of Difference: Beyond the Lesser of Two Evils.

In 1930 a new department of the federal government, the Bureau of Narcotics and Dangerous Drugs, was created under the leadership of Harry Anslinger to carry out the war against drug users. Anslinger, an avowed racist, was an adroit publicist and became the prime shaper of American attitudes about drug addiction, hammering home his view that this was not a treatable addiction but a deviant urge that could only be suppressed by harsh criminal sanctions.

Anslinger's first major campaign was to criminalize the drug commonly known at the time as hemp. But Anslinger renamed it "marijuana" to associate it with Mexican laborers who, like the Chinese before them, were unwelcome competitors for scarce jobs in the Depression. Anslinger claimed that marijuana "can arouse in blacks and Hispanics a state of menacing fury or homicidal attack. During this period, addicts have perpetrated some of the most bizarre and fantastic offenses and sex crimes know to police annals."

Anslinger linked marijuana with jazz and persecuted many black musicians, including Thelonious Monk, Dizzy Gillespie and Duke Ellington. Louis Armstrong was also arrested on drug charges, and Anslinger made sure his name was smeared in the press. In Congress, the drug czar testified that "coloreds with big lips lure white women with jazz and marijuana".

By the 1950s, amid the full blast of the Cold War, Anslinger was working with the CIA to charge that the new-born People's Republic of China was attempting to undermine America by selling opium to US crime syndicates. (This took a great deal of chutzpah on the part of the CIA, whose planes were then flying opium from Chiang Kai-Shek's bases in Burma to Thailand and the Philippines for processing and export to the US.) Anslinger convinced the US Senate to approve a resolution stating that "subversion through drug addiction is an established aim of Communist China".

In 1951, Anslinger teamed with Democrat Hale Boggs to marshal through Congress the first minimum mandatory sentences for drug possession: two years for the first conviction for possession of a Schedule 1 drug (marijuana, cocaine), five to ten years for a second offense, and ten to twenty for a third conviction. In 1956 Anslinger once again enlisted the aid of Boggs to pass a law calling for the death penalty to be imposed on anyone selling heroin to a minor, the first linking of drugs with Death Row.

This was Anslinger's last hurrah. Along with John Kennedy's New Frontier cantered sociologists attacking Anslinger's punitive philosophy. The tempo of the times changed, and federal money began to target treatment and prevention as much as enforcement and prison. But the interim didn't last long. With the waning of the war in Southeast Asia millions of addicted GIs came home to be ambushed by Richard Nixon's War on Drugs program. Nixon resurrected Anslinger's techniques of threat inflation, declaring in Los Angeles that "as I look over the problems of this country I see that one stands out particularly: the problems of narcotics."

Nixon pledged to launch a war on drugs, to return to the punitive approach and not let any quaint notions of civil liberties and constitutional rights stand in the way. After a Nixon briefing in 1969, his top aide, H.R. Haldeman noted in his diary: "Nixon emphasized that you have to face the fact that the whole problem is really the blacks. The key is to devise a system that recognizes this while not appearing to." And the Democratic congress played along.

But for all of his bluster, Nixon was a mere prelude to the full fury of the Reagan-Bush-Clinton years, when the War on Drugs became explicitly a war on blacks. The first move of the Reagan administration was to expand the drug forfeiture laws, first passed in the Carter administration. In 1981 Reagan's drug policy advisors outlined a plan they thought would be little more than a good PR sound bite, a public display of the required toughness. They proposed allowing the Justice Department to seize real property and so-called "substitute property"--that is, legally acquired assets equal in value to illegal monetary gains. They also proposed that the federal government be permitted to seize attorney's fees that they suspected might have been paid for through drug proceeds. The Reagan plan was to permit forfeitures on the basis of a "probable cause showing" before a federal judge. This meant that seizures could be made against people neither charged nor convicted, but only suspected, of drug offenses.

Contrary to the administration's expectations, this plan sailed through Congress, eagerly supported by two Democratic Party liberals, Senators Hubert Humphrey and Joe Biden, the latter being the artificer in the Carter era of a revision of the RICO statutes, a huge extension of the federal conspiracy laws. Over the next few years the press would occasionally report on some exceptionally bizarre application of the new forfeiture provisions, such as the confiscation of a $25 million yacht in a drug bust that netted only a handful of marijuana stems and seeds. But typically, the press ignored the essential pattern of humdrum seizures, which more often focused on such ordinary assets as houses and cars. For example, in Orange County, California, fifty-seven cars were seized in drug-related cases in 1989 alone. "Even if only a small amount of drugs is found inside," an Orange County narcotics detective explained, "the law permits seized vehicles to be sold by law enforcement agencies to finance anti-drug law enforcement programs."

In fact, the forfeiture program became a tremendous revenue stream for the police. From 1982 to 1991, the US Department of Justice seized more than $2.5 billion in assets. The feds confiscated $500 million in property in 1991 alone, and 80 percent of these seizures came from people who were never charged with a crime.

[continued in followup]

[POA]

On June 17, 1986 University of Maryland basketball star Len Bias died, reportedly from an overdose of cocaine. As Dan Baum put it in his excellent book Smoke and Mirrors: the War on Drugs and the Politics of Failure, "In life, Len Bias was a terrific basketball player. In death he became the Archduke Ferdinand of the Total War on Drugs." It was falsely reported that Bias had smoked crack cocaine the night before his death. (He had, in fact, sniffed powder cocaine and, according to the coroner, there was no clear link between this usage and the failure of his heart.)

Bias had just signed to play with the Boston Celtics and amid Boston's rage and grief Speaker of the House Tip O'Neill, a representative from Massachusetts, rushed into action. In early July of that year he convened a special meeting of the Democratic Party leadership on the Hill: "Write me up some d**n legislation," O'Neill ordered. "All anybody in Boston is talking about is Len Bias. They want blood. If we move fast enough we can get out in front of the White House."

The Reagan White House was moving fast itself. Among other things the Drug Enforcement Agency had been instructed to allow ABC News to accompany it on raids against crack houses. "Crack is the hottest combat-reporting story to come along since the end of the Vietnam War", the head of the New York office of the DEA exulted.

All this fed the congressional frenzy to write tougher laws. House Majority leader Jim Wright, the Texas Democrat, called drug abuse "a menace draining away our economy of some $230 billion this year, slowly rotting away the fabric of our society and seducing and killing our young". Not to be outdone, South Carolina Republican Thomas Arnett proclaimed that "drugs are a threat worse than nuclear warfare or any chemical warfare waged on any battlefield".

So the 1986 Anti-Drug Abuse Act was duly passed. It boasted 29 new minimum mandatory sentences. Up until that time in the entire history of the Republic there had been only 56 minimum mandatory sentences. The new law enacted a death penalty provision for drug "king pins" and prohibited parole for even minor possession offenses. But the chief target of the bill was crack cocaine. Congress established a 100-to-1 sentencing ratio between the possession of crack and powder cocaine. Under this provision, possession of five grams of crack carries a minimum sentence five years in federal prison. The same mandatory minimum is not reached for any amount of powder cocaine under 500 grams. John Kerry voted for the measure.

The sentencing disparity in the 1986 law was based on faulty testimony that crack was fifty times as addictive as powder cocaine. Congress then doubled this ratio as a so-called "violence penalty". Yet there is no inherent difference between the drugs, as Clinton drug czar Barry McCaffrey was forced to admit. The federal Sentencing Commission, established by Congress to review sentencing guidelines, found that so-called "crack violence" was largely attributable to the drug trade itself and has more to do with the setting in which crack is sold than the drug itself: crack is sold on the street, while powder cocaine is often vended by house calls.

As Nixon and Haldeman would have approvingly noted, Tip O'Neill's new drug law was aimed squared at blacks, reminiscent of the early targeting of Chinese smoking opium rather than post-bellum ladies sipping their laudanum-laced tonics.

In 1995 the US Sentencing Commission reviewed eight years of application of this provision and found it to be undeniably racist in practice: 84 percent of those arrested for crack possession where black, while only 10 percent were white and 5 percent Hispanic. The disparity for trafficking arrests was even wider: 88 percent blacks, 7 percent Hispanics and 4 percent whites. By comparison, defendants arrested for powder cocaine possession were 58 percent white, 26 percent black and 15 percent Hispanic.

In Los Angeles all twenty-four federal defendants in crack cases in 1991 were black. The Sentence Commission recommended to Congress that the ratio should be one-to-one between sentences for offenses involving crack and powder cocaine, arguing that federal law allows for other factors to be considered by judges in lengthening sentences (such as whether guns or violence was associated with the offense). But for the first time in its history the Congress rejected the recommendations of the Sentencing Commission and retained the 100-to-1 ratio. Clinton likewise declined the advise of his drug czar and his attorney general and signed the bill.

One need only look at the racial make-up of federal prisons to appreciate the consequences of the 1986 drug law. In 1983 the total number of prisoners in federal, state and local prisons and jails was 600,800. Of those, 57,975 (8.8 percent) were incarcerated for drug-related offenses. In 1993 the total prison population stood at 1.4 million, of whom 353,564-25.1 percent-were inside for drug offenses. The Sentencing Project, a DC-based watchdog group, found that the increase was far from racially balanced. Between 1986 and 1991 the incarceration rate for white males convicted on drug crimes increased by 106 percent. But the number of black males in prison for kindred offenses soared by a factor of 429 percent, and the rate for black women went up by an incredible 828 percent.

The queen of the drug war, Nancy Reagan, said amid one of her innumerable sermons on the issue: "If you're a casual drug user, you're an accomplice to murder." In tune with this line of thinking, the Democratic-controlled Congress moved in 1988 to expand the crimes for which the federal death penalty could be imposed. These included drug-related murders, and murders committed by drug gangs, which would allow any gang member to face the death penalty if one member of the gang was linked to a drug killing. The new penalties were inscribed in an update of the Continuing Criminal Enterprises Act.

Convictions under the new law between 1989 and 1996 were 70 percent white and 24 percent black. But 90 percent of the times the federal prosecutors sought the death penalty it was against non-whites: of these, 78 percent were black and the rest Hispanic. From 1930 to 1972 (when the Supreme Court found the death penalty unconstitutional), 85 percent of those given death sentences were white. When the federal death penalty was reapplied in 1984, with the Anti-Drug Abuse Act, the numbers for black death penalty convictions soared. Of those on Death Row, both federal and state, 50 percent are black, although blacks constitute only 16 percent of the US population.

Alexander Cockburn and Jeffrey St. Clair's new book on the 2004 elections, Dime's Worth of Difference: Beyond the Lesser of Two Evils, is just out from AK Press/CounterPunch Books.