Locking Up Our Own

Crime and Punishment in Black America

Farrar, Straus and Giroux

Contents

GATEWAY TO THE WAR ON DRUGS Marijuana, 1975

Every generation makes mistakes. Sometimes these errors are relatively harmless or easily fixed. But every so often, a misstep is so damaging that future generations are left shaking their heads in disbelief. "What were theythinking?" we ask each other. "How did they not see what they were doing?" We gaze out at the wreckage we've inherited, the failed policies and broken lives, and we think, This was avoidable.

The War on Drugs, including the turn toward ever more punitive sentencing, is likely to be judged that sort of mistake.

It is now widely recognized that the drug war has caused tremendous damage — especially in the low-income African American communities that have been its primary target. In 1995, the legal scholar Michael Tonry, an early critic of the War on Drugs, said it "foreseeably and unnecessarily blighted the lives of hundreds of thousands of young disadvantaged black Americans." In the years since Tonry wrote those words, the consequences of the policies he denounced have only intensified. Blacks are much more likely than whites to be arrested, convicted, and incarcerated for drug offenses, even though blacks are no more likely than whites to use drugs. And although blacks play a greater role in street-level drug distribution in most markets than do whites, the best research has shown that this doesn't explain all the racial disparities in incarceration rates. Marijuana produces particularly blatant arrest disparities: in Washington, D.C., the black arrest rate for marijuana possession in 2010 was eight times that for whites, and in that same year, law enforcement in the city made 5,393 marijuana possession arrests — nearly fifteen arrests a day.

All of which raises the question: Why would black people ever have supported the drug war?

Answering this question requires that we return to a time before the drug war achieved unstoppable momentum and before a massive increase in incarceration rates made America the world's largest jailer. In the early to mid-1970s, a majority-black city had the chance to say no to a policy that stigmatized many young blacks and diminished their life prospects. The choice that city made presaged the subsequent course of the tough-on-crime movement in black America.

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"Hey, we didn't get our forty acres and a mule," said George Clinton, front-man of the funk band Parliament. "But we did get you, CC." CC was Chocolate City, and Chocolate City was Washington, D.C. There were other chocolate cities in the United States — "We've got Newark, we've got Gary, / Somebody told me we got L.A., / And we're working on Atlanta" — but D.C. was special. As Clinton put it, "You're the capital, CC."

The year was 1975, and D.C.'s black citizens, who made up 70 percent of the city's population, had good reason to celebrate. Since Reconstruction, Congress had denied the city's residents any meaningful role in their own governance. Southern Democrats controlled the District, and they had no interest in granting even a measure of self-determination to a city with so many black residents. South Carolina representative John L. McMillan ran the House of Representatives' District Committee during the 1950s and 1960s; an avowed racist, he viewed the District as his private plantation, stocking the local government with cronies who shared his antipathy toward blacks.

But McMillan and other white supremacists were losing their grip on black people's fate. The election of black mayors across the country demonstrated how the nation was changing. In 1967, there was Carl Stokes in Cleveland, followed by Kenneth Gibson in Newark in 1970; then, three years later, Tom Bradley in Los Angeles, Maynard Jackson in Atlanta, and Coleman Young in Detroit. And then D.C. got its turn. In 1973, Congress passed the Home Rule Act, set to take effect in January 1975. Although it stopped well short of making D.C. fully autonomous, the Home Rule Act provided for an elected mayor with substantial executive authority — including control of the police department — and for a city council with significant legislative power.

Elections were held on November 5, 1974. Two months later, on January 2, 1975, the nation's first black Supreme Court justice, Thurgood Marshall, swore in D.C.'s first elected black mayor in one hundred years, Walter E. Washington. (Before his election, Washington had been serving as an appointed mayor/commissioner, a mostly ceremonial position; even this limited status had infuriated Representative McMillan, who protested by sending a truckload of watermelons to Washington's office.) Marshall also swore in the city's first elected city council, eleven of whose thirteen members were black. Behind them on the stage, a police band played Marvin Gaye's "Let's Get It On." The District Building hosted a public reception, and the city's residents crowded in, congratulating their newly elected officials and collecting autographs on souvenir programs. President Gerald Ford delivered a statement through a representative, declaring that "the power that should have been in Washington all along is now back in Washington ... the right of every citizen to have a voice in his or her government." So when Parliament released the album Chocolate City, it was only fitting that the title song's refrain was "Gainin' on ya," and that the cover art featured the Lincoln Memorial, the Washington Monument, and the Capitol Building all coated in chocolate. The song even opened with a playful prediction: "They still call it the White House, but that's a temporary condition too."

In 1975, D.C.'s racial composition meant that except in Ward 3, the city's only majority-white district, any white candidate seeking a seat on the new city council needed a biography that could appeal to black voters. In Ward 1, which included the Shaw, U Street, and Columbia Heights neighborhoods, such a candidate emerged — someone who would spark one of the newly empowered city's first debates about criminal justice.

David Clarke was a graduate of the Howard University School of Law, where he had been one of a handful of white students. After earning his degree, he took a job in the Washington, D.C., office of Dr. Martin Luther King's Southern Christian Leadership Conference. A few years later, he opened his own private practice and quickly gained a reputation for representing the underdog. As one friend remembered, "If you got in trouble, everybody knew to go get David Clarke because you didn't have to pay him."

When Home Rule arrived, Clarke jumped eagerly into the race for city council. His was the classic grassroots campaign: headquartered in his one-bedroom apartment, it made up in passion what it lacked in money. Ultimately, District voters were convinced by Clarke's authenticity, compassion, and civil rights pedigree, and on inauguration day he was sworn in as one of two white members on the city council.

Once in office, Clarke turned his attention to what he regarded as a matter of pressing importance: the increasingly vigorous enforcement of marijuana laws by the Metropolitan Police Department (MPD). Marijuana arrests had jumped from 334 in 1968 to 3,002 in 1975 — a 900 percent increase. Moreover, 80 percent of those arrested were black, and having this arrest on their records could undermine their life chances, making it harder for them to obtain housing, jobs, public benefits, or student loans.

Clarke's election coincided with a national movement to decriminalize marijuana. Today, we connect the drug war with Richard Nixon, who, in 1971, famously announced "a new, all-out offensive" against drugs, the nation's "public enemy no. 1." But Nixon's offensive was largely aimed at harder drugs; it is easy to forget that this same era saw substantial momentum for making possession of small amounts of marijuana a civil infraction (for which citizens would get a ticket) rather than a criminal offense (for which they could be arrested and jailed). This movement garnered so much support that by 1975, the widespread decriminalization of marijuana seemed wholly possible, even inevitable.

Advocates of decriminalization came from many quarters. In 1970, the Controlled Substances Act had established the National Commission on Marihuana and Drug Abuse, an investigative body deemed "conservatively oriented" by The Washington Post. Over the following two years, the commission conducted dozens of hearings and authorized more than fifty research projects, with several members even trying marijuana for themselves. Finally, in 1972, the commission released its highly publicized final report, titled Marihuana: A Signal of Misunderstanding. The report was far more sympathetic to marijuana than many observers had expected. "Experimental or intermittent use of this drug carries minimal risk to the public health," the report declared, "and should not be given over-zealous attention."

The report was too permissive for President Nixon, who immediately rejected it. But it gave a much-needed boost to decriminalization advocates at the state level, where they notched some victories. Oregon decriminalized marijuana in 1973; two years later, California, Colorado, Ohio, and Alaska followed suit. Support for decriminalization came from unlikely sources, including William F. Buckley and his staunchly conservative National Review, which in 1972 ran a cover story with the headline "The Time Has Come: Abolish the Pot Laws." In 1977, President Jimmy Carter opened the door to federal legislation, asking Congress to decriminalize the possession of small amounts of marijuana. "Penalties against possession of a drug should not be more damaging to an individual than the use of the drug itself," Carter declared in a message to Congress.

Despite this liberalizing shift in attitudes in parts of the country, the Washington, D.C., police did not let up, and they concentrated their attention on the city's black neighborhoods. That 80 percent of those they arrested were black may not have been an egregious disparity in a city that was 70 percent black, but for David Clarke, the number proved an important point. In overwhelmingly white states such as Oregon and Maine, marijuana decriminalization was a question of civil liberties and individual autonomy. But in majority-black Washington, D.C., it was also a pressing matter of civil rights and racial justice. That D.C.'s police force would dramatically increase marijuana arrests at a time when the national momentum was moving toward lesser penalties was, in a word, infuriating.

Luckily, Clarke found himself in the perfect position to effect change: after his victory, he had been named head of the city council's Committee on the Judiciary and Criminal Law, which most referred to simply as the Judiciary Committee. He quickly took aim at the city's marijuana laws: on March 18, 1975, Clarke unveiled a proposal to eliminate prison as a possible penalty for possession. Instead, anyone possessing less than two ounces of marijuana would be subject to a $100 fine. (At the time, marijuana possession carried the same maximum penalty as sale of the drug — a year in prison and a $1,000 fine. The maximum increased to ten years and $5,000 for any subsequent offense.) Clarke also proposed that police officers issue citations rather than make arrests.

Clarke's bill would pass only if he could persuade his black colleagues (and Walter Washington, the city's black mayor) to view the issue through a civil rights lens. So, on July 16, Clarke opened Judiciary Committee hearings documenting the disparate racial impact of marijuana-related arrests and prosecutions in D.C. Several witnesses testified in favor of the bill, including D.C. Superior Court judge Charles Halleck. Halleck, a former prosecutor, had forsworn his tough-on-crime roots; according to The Washington Post, in the early 1970s he "grew a beard and moderately long hair and became, in the eyes of some, as pro-defendant as he had once been pro-prosecution." Like Clarke, Halleck was white — but also like Clarke, he had directly observed the ways in which D.C.'s criminal justice system targeted young black men. He was particularly critical of the MPD for its selective enforcement of marijuana possession laws: the officers, he asserted, "routinely" stopped cars that contained more than one black male and proceeded to "jack up people that they search." If they found even one marijuana cigarette, Halleck said, the police would gleefully arrest an entire carful of young black men. "They look in somebody's ashtray and seize a roach," he testified. "That justifies an arrest."

As additional witnesses spoke, it became clear that the selective enforcement of D.C.'s marijuana laws extended well beyond the police. The Washington Urban League presented research demonstrating that prosecutors were more likely to pursue cases involving black defendants and to dismiss cases involving whites. The disparities held even when controlling for variables such as employment and education: blacks with jobs were more likely to receive punishment than similarly employed whites, and black students fared worse than white ones.

But the most devastating impact, witnesses agreed, was the lifelong stigma that came from a relatively minor offense. Invoking a story that remains familiar today, multiple witnesses testified to the collateral damage of a minor drug conviction — consequences that could be more debilitating and enduring than any sentence imposed by a judge. Dr. Vincent Roux, chairman of the D.C. United Way, noted that the burden of criminality haunted black men long after their arrests; he lambasted the criminal justice system for its "ability to almost destroy a person's life by a criminal record" and placed special emphasis on the system's "ability to prosecute and intimidate black men in particular." Judge Halleck, for his part, argued that the ultimate effect of marijuana enforcement was to "stigmatize those young men with arrest records and criminal records." Even if the majority of such men avoided jail time, he continued, they still had to report their arrests and convictions on employment, housing, and school applications. A criminal record would often render young black men effectively unemployable, creating a downward spiral of criminality: some of these men, Halleck argued, would inevitably become "angry with the system," frustrated by their inability to find work. They "may go around and shoplift something"— and suddenly, from there, "they are off on the road to ... wind[ing] up down at Lorton for long periods of time." (For most of the period covered by this book, D.C. prisoners were held at Lorton Reformatory in Lorton, Virginia.)

Although racial justice was a prominent theme in the case for decriminalization, Clarke and his allies did not rest there. Their other central claim was that marijuana was much less dangerous than other drugs, and that criminalization was therefore a severe overreaction. Dr. Lester Grinspoon of the Massachusetts Mental Health Center sought to dispel what he called the "many myths about marijuana." He told the council that marijuana was not addictive, that it did not cause psychosis or brain damage, that it was not a gateway to more serious drugs, and that it did not undermine an individual's drive to succeed. Other experts were more equivocal about the health risks users faced, but all agreed that when it came to small amounts of marijuana, criminalization produced more harm than the drug itself. As Robert DuPont, the head of the National Institute on Drug Abuse, argued, there were many ways for the government to discourage marijuana use, but to do so through the criminal justice system, with its associated costs and stigmas, made no sense at all.

By the end of the hearings, Clarke and his witnesses had offered a compelling case for why D.C. should join the growing number of states adopting a less punitive approach to marijuana. By abolishing criminal penalties for limited possession, the city council could take a firm stand for racial justice. It could save legions of black citizens from the lasting consequences of arrest and conviction, and it could adopt, instead, penalties that would be commensurate with the drug's actual risks. Passing Clarke's bill, it seemed, was the obvious choice. What could possibly stand in the way?

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Heroin. As a nation, we've mostly forgotten about the devastation heroin wrought in urban America fifty years ago. When I talk in my law school classroom about the War on Drugs, my students usually assume that I'm speaking about the response to crack, which ravaged black communities in the 1980s and 1990s. A few students have firsthand memories of the crack epidemic; the rest have either read about it or seen it represented in movies and on TV. But when I tell them that heroin was to the '60s what crack was to the late '80s, I get blank stares. This amnesia comes at a cost: without taking heroin into account, one cannot understand African American attitudes toward the drug war.