Punishment and Redemption: The Evolution of the Overcriminalization of Black People

By: Alexandra Cruz, Natasha Werth, Athalie Dore, and Natalie Gay

Jim Crow laws were a collection of statutes that legalized racial segregation. These laws were in place from the post-civil War era to the mid-1960s, and they marginalized African Americans by denying them fundamental rights and encouraging race-based violence. Although these laws were abolished in 1966, and slavery was abolished in 1865 with the 13th amendment, many laws and legal loopholes continued to be used to target, criminalize, and justify violence against black communities.

The War on Drugs began in 1971, and the term was coined after President Richard Nixon declared drug abuse as “public enemy number one.” This era of governmental policy involved extreme legal consequences for the possession of substances. Although these policies would seem supportive of public health on paper, many of these policies were directed and acted more harshly against black communities. Crack, a cheaper variant of cocaine, was far more common in black and lower-income communities. The sentence for being caught with five grams of crack was five years, while 500 grams of powder cocaine, which was much more prominent in white and upper-class communities, mandated the same sentence. The war’s clear focus was on criminal prosecution, not treatment, and the war’s clear target was people of color, not drugs. In an interview in 1994, John Ehrlichman, Nixon’s policy advisor, stated,

“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.”

The laws established during Nixon’s presidency were created entirely to punish and attack any group the Republican political party did not like, and these same laws were used to justify the murder of revolutionary leaders. The FBI’s Counterintelligence Program  used policies from the drug wars to attack Black leaders like the members of the Black Panther Party.

Fred Hampton, deputy chairman of the Black Panthers, was only 21 when he was killed by an officer in his apartment while sleeping next to his pregnant wife. Fred Hampton was an extremely influential leader who enormously impacted the Civil Rights Movement. His ability to organize a civil rights revolution made him a target and a threat. At a press conference the day after Hampton’s assassination, the police asserted the arrest team had been the first to be attacked by the “violent” and “extremely vicious” Panthers and defended themselves as necessary.

Nixon was not the only president who enforced these policies. Reagan’s administration significantly increased incarceration rates, especially for small-time drug offenses, by enacting mandatory minimum terms for drug offenses. Reagan signed the Anti-Drug Abuse Act of 1986, which furthered the penalties that Nixon established for drug trafficking and possession, mainly crack cocaine, which carried terms harsher than those for powder cocaine. Long-term racial discrepancies in the criminal justice system were exacerbated by this legislative gap, which disproportionately affected Black communities. Reagan’s administration worked endlessly towards vilifying the use of crack with the refusal to consider it as a health problem and promoting organizations like “Just Say No,” started by First Lady Nancy Reagan. 

Former President George H. W. Bush’s administration established The Office of National Drug Control Policy (ONDCP).Incarceration increased due to the strict sentencing guidelines and the emphasis placed on punishment rather than prevention or rehabilitation, especially for minorities and those from lower-income backgrounds. Later, the Clinton Administration promoted The Violent Crime Control and Law Enforcement Act of 1994, which included funding for constructing more state prisons and the “three-strikes” clause that mandated life terms for repeat offenders. Clinton also backed programs like the “100,000 Cops” program to enhance police presence and upheld strict sentencing guidelines, especially for nonviolent drug charges. The Clinton administration’s policies essentially continued the trend of criminalization despite some attempts to address treatment and prevention. As a result, the incidence of incarceration for drug-related offenses increased. A persistent and harsher approach to drug policy resulted from the combined efforts of these presidential administrations, which had far-reaching social and economic repercussions.

These policies still hurt low-income and black and brown communities today. Black people are still disproportionately arrested for drug-related crimes for unfair sentences established over 30 years ago to keep black people in Jail. Black men are still incarcerated for drug-related offenses 9.6 times greater than white men. Despite this, American citizens continue to fight towards making drug-related crimes an issue of health rather than a criminal offense.

For more information on the current state of drug offense laws in the U.S., see DEA

This piece is part of an on-going series from professor Betsy Weiss’s Young Public Scholars Pre-College class, “Punishment and Redemption in the Prison Industrial Complex,” which is taught at Tulane University.