As our country mourns the deaths of eight police officers and a series of African-Americans killed during encounters with police, the question we all ask is, how can we stem this horror? One way would be to end the war against nonviolent drug users.
More than 1.2 million Americans are arrested every year for simply possessing an illicit substance. It is widely recognized that the war disproportionately punishes African-Americans and is responsible for millions of confrontational interactions between law enforcement and blacks. Many of these anger-producing and potentially violent contacts would not take place without the drug war.
Why does the war single out blacks? Explicit racism has declined over the past several decades but still explains some of the racial bias. But it may be the implicit effects of racism that are more important.
A characteristic of the drug war is that the percentage of lawbreakers who can feasibly be arrested is very small. There are about 40 million illicit drug users in any given year, but only about 1.5 million are arrested. So law enforcement has wide discretion as to where they send their troops to fight the war. How do they decide?
If police see drug felons mainly as black – as evidence finds that almost all of us do, including blacks themselves – they will target African-Americans. Moreover, police are rarely punished for discriminating against blacks. In a series of rulings, the U.S. Supreme Court has made it practically impossible to bring lawsuits challenging racial discrimination. The result: The war on nonviolent drug law violators opens the door to racial injustices by law enforcement, inflaming racial tensions.
How could we stop this? We could end the benefits that law enforcement receives from the war on drugs. Most people are not aware that both state and federal police earn profits from the war. Their financial interest is a major force sustaining it. The profits accruing to police are rooted in two federal laws passed in the 1980s, laws that are still very much with us:
▪ In the Anti-drug Abuse Act of 1988, Congress created a grant named after Edward Byrne, a narcotics officer killed by a drug dealer. Research has shown that the size of the Byrne grants is based almost entirely on the number of drug arrests, motivating police departments across the country to prioritize drug investigations. From the mid-’90s until 2001, Byrne grants were running at about $1 billion a year, but under George W. Bush they began to decrease, reaching $170 million in 2007. Then, in 2009, President Obama boosted the grants by $2 billion to be spread over the next four years.
▪ In the the Comprehensive Forfeiture Act of 1984, Congress authorized local police to seize cash, cars, residences and any other assets when there was “probable cause” the property violated the drug laws. (Probable cause is often based on hearsay, circumstantial evidence, rumor, gossip or a tip from an anonymous informant.) The police can then turn the seized assets over to the federal government, and, if the property is found guilty by a federal judge, the police department that seized the property will receive 80 percent of its value, with the rest going to federal law enforcement. No criminal charges need be leveled against the property owner, and the standard of evidence required for “conviction” is whether it is “more likely than not” that the property violated the drug laws.
I know it sounds crazy, but it’s true: The lawbreaker in this asset forfeiture law is an inanimate object like your car or house or financial assets. Owners have the right to contest a guilty verdict, but less than 20 percent do so.
A Washington Post study found that federal authorities had seized more than $5 billion in 2014 for their forfeiture fund and that, from 2001 to 2014, police had seized $2.5 billion in cash without warrants or indictments.
Thanks to these two laws, police have a strong financial incentive to search for illicit drugs everywhere, in airports, buses, trains, highways, schools, streets and residences. The main victims are low-income people and people of color.
Putting an end to these drug war profits will not be easy. Law enforcement will fight tooth and nail to protect their drug war profits, as they already have. But overturning these laws is a key element in any program to cool the anger, fear and tensions that exist between law enforcement and African-American citizens.
Arthur Benavie, Ph.D., emeritus professor of economics at the University of North Carolina at Chapel Hill, is author of “How the Drug War Ruins American Lives.”