Equal Justice Now: We Need to Talk About Race

Dr. King’s Legacy, Notions of Progress, and the War on Drugs in 2021

by Damali Robertson, Deputy Director of Strategic Partnerships

Dr. Martin Luther King Jr. moved to Alabama in 1954. In his first major civil rights case, he pursued justice for 16-year-old Jeremiah Reeves. Jeremiah, a black man, was arrested for raping Mabel Ann Crowder, a white woman, in her home, although many in the community knew they were having an ongoing consensual affair. Four years later, Dr. King stood on the steps of the Alabama State Capitol to console a crowd of nearly 2,000 people. Jeremiah was executed on March 28, 1958, only 22 years old.

Jeremiah was condemned to death by a Jim Crow South that could not bear the idea of a Black teen in an intimate relationship with a White woman. Jeremiah stoked white fears and inflamed white rage even as White men violated Black women and girls with impunity. After the State killed Jeremiah, Dr. King remarked, “Even if he were guilty, it is the severity and inequality of the penalty that constitutes the injustice.”

Sixty three years after Jeremiah’s execution, we still have unequal justice across the criminal legal system. While we may no longer have separate water fountains or formal signs that prevent Black people and people of color from entering a business, institutionalized racism is ingrained in every American system, and nowhere is this more evident than in the country’s criminal justice system and the War on Drugs — a phenomenon that actually worsened the lives of Black Americans and people of color in the aftermath of the incredible strides made in the Civil Rights Movement.

The War on Drugs: The Government-Led Backlash to the Civil Rights Movement

I’m not sure Dr. King could have predicted exactly that the War on Drugs would be introduced by the Nixon administration in 1971, but he knew resistance was coming. King, in a book draft in 1967, wrote about the white resistance he predicted. He understood that white fear, based in the perception that power is finite, would be threatened by Black gains. But I wonder if he knew just how devastating the War on Drugs would be in legitimizing the criminalization and demonization of Black people, creating the incarceration of hundreds of thousands of Black, Brown, and Indigenous people each year due to non-violent drug offenses.

Dr. King had witnessed extreme forms of injustices across his lifetime but he may not have foreseen the ways the “severity and inequality of the penalty” would become so deeply entrenched in the criminal legal system. The War on Drugs began in 1971 on the heels of major Civil Rights advancements. As Michele Alexander writes in The New Jim Crow, “Southern Governors argued that Martin Luther King Jr.’s philosophy of civil disobedience was a leading cause of crime,” and they looked for ways to push back against it.

Civil disobedience is a nonviolent form of protest that is very much protected by the American constitution. Dr. King and the Civil Rights Movement designed civil disobedience (sit-ins, protests, and marches) to push against racist policies like segregation, redlining, and police brutality. Civil disobedience was utilized as a peaceful means to call for equal treatment of all.

Yet, at the time that the War on Drugs began, the political establishment and White majority in power called for “law and order” in an effort to silence the Civil Rights Movement. Black activists like Dr. King had won major civil rights advances with the Civil Rights Act in 1964 and Voting Rights Act in 1965. Each of these advances — hard-fought civil rights victories coming out of Black resistance to segregation and Jim Crow — have benefited all historically marginalized communities (i.e., communities of color, immigrant communities, faith-based communities, LGBTQ+ communities, etc). The 1964 and 1965 civil rights legislation broke real ground, securing unalienable rights for all people for the first time in the nation’s history. Yet these advances for economic opportunity for Black people and people of color stoked white fears and rage — because they threatened the notions of power-wielding that the establishment held onto.

In a 1994 interview, President Nixon’s domestic policy chief, John Ehrlichman admitted this very thing, saying:

“The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and Black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or Black, but by getting the public to associate the hippies with marijuana and Blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

And the Nixon campaign was successful. In the 50 years since the War on Drugs began, the prison population soared from 300,000 to 2.3M. Today, of the 450,000 people incarcerated on drug charges on any given day, more than half are Black, Brown, and Indigenous people, the same people, families, and communities who won civil rights advances in the ’50s and ’60s.

The Invisible Undercurrent of Resistance: White Fear and White Rage

Unpacking the concepts of white fear and white rage is critical to understanding the backlash that gave rise to the War on Drugs and helps us understand what is happening today — as we commemorated MLK Day and welcome President Biden and Vice President Harris in 2021.

White Backlash is driven by white fear and white rage. In his book, Democracy in Black: How Race Still Enslaves the American Soul, Princeton University Professor Eddie S. Glaude, describes white fear as “a kind of political fear. Political fear (like the current fear of Muslims) reaches beyond fright or anxiety experienced by individuals. It’s bigger than any one person. It is a deeply felt, collectively held fear shared by people who believe, together, that some harm threatens them and their way of life.”

Carol Anderson, Professor of African American Studies at Emory University, author, and thought-leader, explains white rage, in her book, White Rage, in this way, “White rage is not about visible violence, but rather it works its way through the courts, the legislatures, and a range of government bureaucracies. It wreaks havoc subtly, almost imperceptibly…White rage doesn’t have to wear sheets, burn crosses, or take to the streets. Working the halls of power, it can achieve its ends far more effectively, more destructively…The trigger for white rage, inevitably is black advancement.”

Like Southern Governors played on white fears and rage, associating the Civil Rights Movement with lawlessness, American presidents like Nixon have employed similar strategies, associating Black people and people of color with violence and criminality. This was most evident in the 80s, and ’90s with the legislation that followed the crack epidemic, but also widely on display at the Capitol on January 6, 2021 — in the face of social and racial justice and progress being moved forward at the federal level.

The 1980s and Beyond: The Long War on Drugs and Outcomes for People and Families of Color

Building on Nixon’s War on Drugs in the 1970s, the 1980s saw the creation of hundreds of federal and state laws targeting Black people and people of color, perpetuating the false notions that BIPOC people are more intrinsically dangerous and have a greater propensity to crime and lawlessness. These policies were both massively effective and destructive.

In 1985, crack cocaine flooded Black communities and communities of color. It cut across race, gender, and socio-economic statuses. However, because it was cheaper than powder cocaine it was more accessible and became a lucrative enterprise for young Black, Brown, and Indigenous entrepreneurs who were less likely to have access to generational wealth because of American legacies of enslavement, Jim Crow, The Great Migration, and redlining.

Unlike the opioid crisis of today, where users of the drug are far more likely to be white, and where people who use substances are humanized as addicts in need of treatment, law enforcement agencies in the crack era did not recommend drug treatment programs and interventions that we know work. Instead, Black, Brown, and Indigenous users and dealers were targeted and met with harsh punishments and extreme sentences. The crack epidemic ushered in 100:1 sentencing disparities between powder cocaine and crack. The 1986, 1988, and 1994 laws were justified by racially-charged sensationalist narratives about “violent thugs” and “super predators.” Violent thugs have always been code for Black, Brown, and Indigenous youth.

On the heels of the incredible successes of Dr. King and the Civil Rights Movement, the sweeping criminalization of millions of people and families pulled us back.

In 1986, Congress passed the Anti-Drug Abuse Act. The 1986 law established mandatory minimum sentences triggered by specific quantities of cocaine for the first time. Congress wrote into law 100:1 sentencing disparities between crack and powder cocaine offenses. For example, distributing just 5 grams of crack carried a 5-year minimum federal prison sentence, while distributing 500 grams of cocaine attracted the same sentence.

In 1988, Congress passed the Omnibus Anti-Drug Abuse Act. This legislation criminalized drug possession in a new way, with a 5-year mandatory minimum and 20-year maximum sentence for simple possession of 5 grams or more of crack cocaine. Until 1988, one year of imprisonment had been the maximum sentence for drug possession.

Mandatory minimums eliminated discretion in sentencing for first-time and non-violent offenders. The laws drastically limited or removed sentencing alternatives available to DA’s and judges — and emboldened racist DA’s and judges whose own white fears justified incarcerating people caught in cycles of addiction and survival in the face of trauma and poverty.

In August 1991, the sentencing commission completed an in-depth study on mandatory minimums and concluded that non-whites were much more likely to receive mandatory minimum sentences and that they were being applied in a discriminatory manner. (ACLU Report, 2006)

In 1994 — approximately twenty years after the War on Drugs first began — Congress passed the Violent Crime Control and Law Enforcement Act. President Clinton signed the bill into law, committing $12.5 billion to states to increase incarceration. “The law imposed tougher prison sentences at the federal level and encouraged states to do the same. It provided funds for states to build more prisons, aimed to fund 100,000 more cops, and backed grant programs that encouraged police officers to carry out more drug-related arrests — an escalation of the war on drugs.” (Vox, 2016)

By 2003, whites constituted 7.8% of the defendants sentenced under the harsh federal crack cocaine laws while Blacks constituted more than 80%. Yet, more than 66% of crack cocaine users in the United States were white or Hispanic. According to data published by the Center for American Progress, “Black Americans are nearly six times more likely to be incarcerated for drug-related offenses than their white counterparts, despite equal substance usage rates. (Center for American Progress, 2018)

Today, these policies come together to have crippling impacts on real lives — on people of color. Today, a Black defendant will serve virtually as much time in prison for a drug offense at 58.7 months, as a white defendant will for a violent offense at 61.7 months.

Brittany K. Barnett, in her book, A Knock at Midnight, tells the story of men and women who received life sentences for non-violent drug offenses. Sharanda Jones and Corey Jacobs are two of Brittany’s clients who received executive clemency under President Obama. Between them, they served 34 years in prison for non-violent drug offenses (Corey served 18 years and Sharanda nearly 17).

Sharanda had been a salon owner, restauranteur, and caregiver before her arrest. In 1999, she was charged with six counts of aiding and abetting the distribution of crack cocaine and one count of conspiracy to traffic crack cocaine. This was her first offense. There was no physical evidence connecting Sharanda to the crime. On the day she was sentenced, she was so convinced she would go home, she dropped her daughter to school and attended court on her lunch break. After the verdict came in she was found not-guilty on all counts except one. However, prosecutors argued for sentencing enhancements. She was sentenced to life in prison.

Corey had been a hip hop promoter and entrepreneur in the nineties. Back then, he’d worked with childhood friend Sean “Puffy’’ Combs and Biggie Smalls and was on the brink of greatness before being indicted on twenty nine charges related to conspiracy to distribute crack cocaine. It was his first felony conviction. Corey was convicted and sentenced to life in prison based on the testimony of co-defendants or witnesses who received lesser sentences or had taken plea deals. In a letter supporting Corey’s clemency petition, the judge in Corey’s case confirmed he “would not have imposed a life sentence on [Corey] had the laws at the time not virtually mandated it.” (CNN, 2016)

These are real people who have been unjustly targeted and treated by the American legal system.

Even if they were guilty, “it is the severity and inequality of the penalty that constitutes the injustice.”

Fair Sentencing, First Steps, and the Unrelenting War On Drugs For People of Color: A Call For Racial Justice

In the last decade, a national reckoning has happened around mass incarceration, the War on Drugs, and the need for reform. Yet it is important for advocates to remain cautious about the “progress” that has been made on federal and state legislation — when our state and federal government still legitimize the criminalization of people of color in the name of “public safety.” The War on Drugs is not over — and at this moment in time, it is critical to increase public awareness around that.

Certainly, some progress has been made at the legislative level:

In 2010, Congress passed the Fair Sentencing Act and President Obama signed it into law. The Fair Sentencing Act reduced the sentencing disparity between crack cocaine and powder cocaine to 18:1 and ended mandatory minimums. The law helped guarantee more fair sentences after it was signed into law but was not made retroactive. (ACLU, 2010)

In 2018, Congress passed the First Step Act and President Trump signed it into law. A few of the bill’s major wins included changes to mandatory minimums for some drug offenses, introducing retroactivity to the Fair Sentencing Act, and allowing for less than the minimum sentences to nonviolent drug offenders with minor criminal histories. (Federal Bureau of Prisons, 2018)

At the state level, 15 states and the District of Columbia have decriminalized marijuana and 35 states and the District of Columbia allow for medical use of marijuana.

Yet sadly, there are still hundreds of thousands of people each year — largely people of color — arrested for distribution and possession of marijuana and thousands serving sentences for marijuana charges. Law enforcement agencies continue to target Black, Brown, and Indigenous people for marijuana possession while the data shows use of marijuana is the same across race. And as people of color serve long sentences for non-violent marijuana crimes, their white peers are benefiting from the green rush.

While some progress has been made in the last decade through the legislation described above, drugs remain the top reason people have been arrested in the US and marijuana has been the top drug involved in those arrests. In 2018, there were 663,367 arrests involving marijuana, up from 659,700 in 2017, nearly 92 percent of them (608,775) for possession only. And today, even in states where marijuana is legal, people can still be arrested if they violate state laws like limits on the amount allowed for personal use. And, since our country still has racism as the underbelly of our policing and sentencing systems, Black Americans are 4 times more likely to be arrested for marijuana charges than their white peers. (Drug Policy, 2020)

We Cannot Progress as A Nation if We Cannot Reckon with Racism

The War on Drugs and Mass Incarceration have not happened in a race-neutral way, and so policymakers, police, attorneys, and activists need to implement this legislation through a lens of racial equity — focusing on the communities who have been most harmed.

While we feel hopeful at this time, with the new administration of Joe Biden and Kamala Harris, we need to call on state and federal legislators to work on criminal justice, policing, and drug reform through a racial justice lens — to undo the “Whitelash” of the last 50 years.

Biden, who co-authored the drug policies of 1986, 1988, and was an architect of the 1994 bill, is coming into a position with tremendous power and responsibility to change the future. We hope he has reckoned with his history so that he can govern differently. The policies he has been in part responsible for have led to the incarceration of millions of Black, Brown, and Indigenous people over the last 35 years. And he has work to do: when questioned on the campaign trail, President-elect Biden admitted the 1994 bill was largely a mistake, but he would not say it was responsible for mass incarceration. (Vox, 2020)

Both Biden and Harris have been far more outspoken in recent months and weeks about racial injustice, and it is critical for them to continue to speak about the double standard of policing in this country, to disavow dehumanizing language used to describe youth of color — like “violent thugs” and replace it with the acknowledgment of their humanity. Without that acknowledgment, Dr. King’s call for equal justice will continue to go unheard.

Here at Root & Rebound, I am proud to be a part of a team across the country that is supporting the tens of thousands of people who’ve been impacted by mass incarceration and the War on Drugs. We have become foremost experts on the impact of cannabis and other drug-related felony conviction histories in CA. In 2020, we developed the A New Leaf toolkit, the first comprehensive legal guide for those impacted by the War on Drugs. We hope to continue to work with state and federal lawmakers to educate them about the ways that the War on Drugs persists on the ground — how the hand of the criminal justice system continues to use “criminality” to charge youth of color with certain crimes while continuing to give their white counterparts a second chance.

We join Dr. Martin Luther King and his legacy in the continued call for equal justice — a call that will never end until the two separate legal systems in this country are abolished — and until we establish one system of equality and justice for all. We have much more work to do. If we are ever going to end the War on Drugs — also ending and healing white rage and white fear — we have to make sure that legislation is implemented through a lens of racial justice. We need to unequivocally advocate that, wherever reform and progress happen, that these efforts are specifically targeted on uplifting and supporting people of color who have been most harmed, and that we reckon with the underlying currents of fear, anger, and power-hoarding that were so deadly in the backlash against the reforms of the past.

The War on Drugs, the mass criminalization of Black Brown and Indigenous people, the election of Donald Trump alongside the events of January 6, 2021 show us that this work is needed. To achieve justice for all, we must learn not only to change laws but to change narratives and address fears. We must do things differently.

This article was written by Damali Robertson and edited by Katherine Katcher.

Damali is the Deputy Director of Strategic Partnerships at Root & Rebound. She is a mission-driven nonprofit leader passionate about advancing positive social change, a restorative justice practitioner, and a poet.

Katherine is the Founder & Executive Director of Root & Rebound, a passionate ally to those impacted by the system, and an advocate for reform in her own right — using her legal education as a tool that could serve others and catalyze change.

Restoring power & resources to the communities most harmed by mass incarceration through legal advocacy, public education, policy reform & litigation.

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