Unequal Under Law - Book Review

Provine gives a well-crafted analysis on drug policy in the United States and the fact that those policies are first and foremost racially-framed. The result of these racially-framed policies is that our “War on Drugs” targets and imprisons African Americans at a disproportional rate as compared to their white counter-parts. She explains that this bias in institutional rather than intentional, thus hindering any attempt to eradicate this problem. She mentions that even though the laws of various prohibitions have deep racially motivated biases, those biases are not intentional so they are perfectly acceptable. She shows consistent historical patterns of America’s current and past was on drugs being targeted toward racial minorities. The last chapter then focuses more on how our elected officials as well as numerous appellate judges resist addressing these disparities with any type of policy reform.

In the introduction and chapter one, she focuses on the disparities of the War on Drugs from a social psychology point of view. She mentions how racial stereotypes contribute to the perception that racial minorities are a greater threat to order than are whites. Thus when racial minorities are involved with drugs or drug related crime there is a greater threat and this is shown in how the criminal policy of the United States has institutionalized this expectation (157). The response to these perceived threats? Heavy criminal punishment. In addressing this problem her observation is that “negative stereotypes must be actively resisted to be avoided,” much like trying to break a bad habit (158). That only deliberate policy will reduce, or better yet reverse the well-institutionalized patterns driven by race. Chapters two look to the historical evidence that shows how America’s War on Drugs began with racial discrepancies and bolstered the case for criminalization that began in the Prohibition era.

The best known War on Drugs in America was the campaign that resulted in the passage of the Eighteenth Amendment, which was the prohibition of alcohol. The ironic part is the fact that whites were quite heavy drinkers, consuming rum, beer, wine, whiskey, but when used by Indians, slaves or other social inferiors, it was considered a problem. This problem was seen as being large enough to be met with legislation (37). “Drinking and drug use became issues when immigration, urbanization, and the growth of industrial society shook up the hierarchies and began to transform American society” (37). Race became a powerful, if not the most powerful tool in justifying drastic action against drugs and the users. The difference between the Prohibition laws and other laws that have come from the government is the fact that is came from a grassroots movement and popular sentiment of the people rather than the government manipulating the public opinion (38).

Racial stereotypes and their inherent to go to extreme drunken excess were prominent factors in the national effort for Prohibition. In the South it was “the menacing drunken Negro male,” in the West it was “the drunken Indian,” and in the North it was “the working-class immigrant who had no desire to assimilate” that were rallying points to push Prohibition (38). During this time, “there was no compunction about drawing on the crudest stereotypes of degeneracy in subordinated populations” (39). The Northern Prohibitionists accepted the Southern development as a way to get them to join their anti-alcohol movement.

During the time of World War I, many Saloons at this time were owned and operated by Germans or German Americans so these were easily shut down. It was also seen that making alcohol was unpatriotic because of the rationing of the war effort. (42) By 1914, fourteen states had approves Prohibition, many others allowed localities to go dry, and the South was most entirely dry when before they had allowed home brewing and just frowned upon the sale and drinking in public (42). The only areas that stayed wet were mostly mill towns and big cities, such as Chicago. The most important legislation of the Progressive era, the Eighteenth Amendment, was approved by the House and Senate in 1917 and within five years, forty-four states had ratified it. “Most observers assumed that liquor would quickly disappear from the American scene: The possibility that a constitutional mandate would be ignored simply did not occur to them” (43).

From the outset of the amendment there was resistance at the local level, which eventually led to the Volstead Act of 1919. The states, especially New York, New Jersey, and Massachusetts that had large, politically organized immigrant groups were beginning this defiance of Prohibition. This was a sign of the problems to come. In chapter three the movement to of alcohol prohibition overlapped and was a foreshadowing of the movements to contain and restrict opium, marijuana, and cocaine. Using the example of Prohibition suggests that drugs are criminalized in two steps: first, the substance must be seen as “dangerous, debilitating, and of no legitimate value,” and second, “the user must be reconfigured as socially marginal and ignorant, or contemptuous, of community standards and moral decency—the kind who responds only to stern intervention of criminal law” (63). This chapter highlights the modern era of the War on Drugs and how the racial or ethnic dimension occurred. The drugs focused in this chapter were first used in households as remedies for certain aliments. Different drugs were introduced by doctors to help with the addition of the drug that preceded it, which was also introduced by doctors. The problem came in the fact that there was no federal agency or national organization of doctors to safe guard any purity of the drugs or to warn of dangers. (66) “Congress heeded the rising sentiment against uncontrolled availability of habit-forming drugs and called for a uniform approach when it passed the Pure Food and Drug Act in 1906” (67).

Addict population was beginning to shift. It began with doctors constituting “the greatest proportion of male addicts; women at home under a doctor’s prescription accounted for most female addicts” (67). Doctors soon got their patients away from narcotics so that those addicted populations dies down. The new addicts were now “younger, darker, poorer, and predominately male” (67). Why were these new demographics becoming addicted? Purely through pleasure-seeking activities. Those people turned to marijuana, cocaine, and heroin because of the scarcity of alcohol during Prohibition. Opium’s public image also changed in public opinion, even though it was still used in medicine. It began to be associated with the Chinese immigrants in California who smoked opium (which the Chinese actually learned from the European sailors in the 1600s, who started the practice of smoking opium). (68) The dens were restricted to the Chinese areas or the poorer parts of the city, and were, at first, left alone. That was until the activity of smoking opium began to cross racial boundaries. It was then that the police began to raid these opium dens, and the one most often raided were those frequented by whites. (71) Next in line was cocaine.

The media often linked race, drugs and crime. These images enforced the white fears “of the potential for Black-induced violence.” In the North and South crimes allegedly committed by Blacks under the influence of cocaine was reported in graphic detail (76). The images of the “Black cocaine fiend” were quite effective, especially in the South and also bared a strong resemblance to the image the southern states used to portray an “alcohol-crazed Negro” (78). The Harrison Narcotics Act went into effect in 1915 and was propelled by the racial scare tactics that were used. Race and class determined how the law was enforced. Marijuana was next on the list and the laws against it were just as racially motivated. During the Depression, local economies were hit hard and Mexican population was resented by the whites for doing the labor that they had before the Depression hit. So, there was now new propaganda that campaigned that “marijuana was thought to make them prone to fights and violence” (82).

Soon heroin displaced marijuana as its use appeared to be rising in urban areas as well as the military. Who was to blame here? The Communist Chinese, who Commissioner Annslinger was convinced, was giving our soldiers heroin in Japan and Korea to undermine them. (86) Chapters four and five analyze the development of federal policy on crack cocaine policy in the 1980s and then the racial impact of that policy with a focus on how federal official responded to growing evidence of this impact. The country, she explains, was seized by moral panic, so Congress rushed into law a bill with huge punishment even for small amounts of crack cocaine. This is the notorious “crack-powder” sentencing disparity of 100-1. (112-113)

Under pressure from civil rights groups, the Federal Sentencing Commission, recommended sharp reduction in the crack/powder sentencing disparity and this was to take effect. The problem? The majority of Congress overrode this recommendation by the Commission and President Clinton signed it. Thus, affirming the original policy and the reduction did not take effect. (129) The final chapter examines the judicial response. Even though some federal trial judges objected to the gross injustices imposed by sentencing guidelines, they did not change it.

Instead, they passed the buck so that they would be absolved of any responsibility. Appellate judges were worse in that even though they had the power in challenging policy that held up the status quo. They reasoned that since the effects of the policy were not frankly and deliberately intended to be racist, the policy producing them was perfectly constitutional. She observes that those disparities can only be addressed with deliberately crafted policy that is aimed at reversing the systematic biases in our policies.