A Brief History of Racial Injustice Embedded within America’s Justice System

Part I: Understanding Roots of Prejudice

In 2020 we saw the racial divide in America rise to extreme points and garner national attention towards the Black Lives Matter movement. However, this racial divide has existed since the founding of America and has been repeatedly ignored. Perhaps the groundworks for this society was set up in such a way that it has allowed for the dismissal of existing inequalities by those who do not experience them and those who benefit from them. As time has progressed, drugs have become a new tool used against minorities to oppress and incarcerate them at disproportionate rates. What is the undistorted history that has laid the foundation for the existing societal structure in America that, by its nature, perpetuates inequality?

After the Civil War came the Reconstruction Era in the United States. Many people say that reconstruction in the United States was a failure as the South quickly went back to their former social structure prior to the Civil War in which Black people were considered inferior and had to obey harsh laws that were designed to hold them back from progression within society. Sharecropping was one system put into place that was designed to hold back the freedmen. During the Civil War, all the freedmen were promised “40 acres and a mule” in order to provide them with economic independence in their newly found freedom. This promise was never fulfilled and instead, President Andrew Johnson ordered for all federal land to be returned to their former owner. This left the freedmen with no source of economic independence or land, and left with no other choice but to depend on the plantation owners that had once enslaved them in order to acquire a source of shelter, food, and work. Sharecropping meant that the freedmen would rent land from the plantation owners and work on the plantation in return. This created a power dynamic that left the freedmen with little control or independence (HISTORY, 2019).

The “reconstruction amendments'' were the 13th, 14th, and 15th amendments, put in place in order to provide protections for the newly freed people who were once enslaved. The 13th amendment (1865) abolished slavery and involuntary servitude, except for those duly convicted of a crime, the 14th amendment (1868) gives citizenship rights and equal protection of the laws for all persons, and the 15th (1870) prohibits discrimination in voting rights of citizens on the basis of “race, color, or previous condition of servitude” (U.S. Constitution, 2021). Laws can be written and ratified, but their words mean nothing without people to properly interpret and enforce them. When it comes to the reconstruction era amendments, the promised protections within them were eroded and undermined repeatedly by federal courts, and most tellingly, the Supreme Court. The fact that the Supreme Court interpreted these amendments in such a way that still upheld white supremacy and the oppression of Black Americans reinforced the belief in American society that these people were in some way different, and that they did not deserve the full extent of these protections.

Landmark Supreme Court Decisions and Their Implications

Some examples of these Supreme Court decisions include the Slaughterhouse cases, U.S. v. Cruikshank, and Plessy v. Ferguson. To begin with, during the Slaughterhouse Cases of 1873, the U.S. Supreme Court decided that The privileges and immunities clause of the 14th amendment does not extend to rights provided under state laws, only federal law. The clause states that “the citizens of each state shall be entitled to all of the privileges and immunities of citizens in the several states.” These include, among others, the right to bear true allegiance to the constitutional laws of the U.S. and to be protected in life, liberty, and property (LII, 2021). The court deferred to the states’ rights to "police powers", or the capacity of the states to regulate behaviors and enforce order within their territory for the betterment of the health, safety, moral, and general welfare of their inhabitants. This means that states can create their own laws as long as they do not conflict with pre-existing federal laws (LII, 2021).

At the time of Reconstruction in the U.S., the debate on federalism and states’ rights was very prominent. The Supreme Court would use this debate as the justification for their deferral to states’ police powers. Federal and state laws, though not explicitly stated in every case, have intended and unintended consequences that can make them racist. Instead of making these cases about racial discrimination and oppression, the court chose to make it about federalism and states’ rights, deferring to their police powers. No matter the intentions of the Supreme Court, the consequences of these decisions remain the reality for the African American community who they failed to protect.

An example of restrictive laws that have racist implications, but exist under the guise of protection and police powers are voter ID laws. Holding elections and voting processes are the total responsibility of the states. Many states have different legislation regarding the requirements it has for a person to be able to vote. There was the Mississippi Plan of 1890 which required poll taxes and literacy tests, inhibiting most Black Americans from being able to vote, which was well known by the state legislators at the time (Anderson, Carol, 2020). Looking back, this is an obvious example of an attempt to suppress voting from a certain demographic without clearly spelling out the intentions. Today, we still can see similar acts of this that may be more obvious than we realize, but hindsight is 20/20. Between 2012 and 2016, Alabama, Mississippi, Virginia, and Wisconsin passed strict voter ID laws, which required a photo ID in order to vote. Supporters of these laws argue that they are necessary to negate voter fraud and instill greater legitimacy of the democratic process. It is no secret that these laws also restrict certain demographics from being able to vote more so than others. A study by UC San Diego found that “when these laws are enacted, turnout in racially diverse counties declines more than in less diverse areas and more sharply than it does in other states” (UC San Diego, 2020). In the case of Wisconsin, U.S. district judge Lynn Adelman finds that there has been no examples of this type of voter fraud in more than a decade of elections, though this was the state legislators' supposed reasoning for the necessity of the law. If this is true, what is then the true reason for the law? What we know to be true is that Voter ID laws disproportionately affect those who don't currently have a photo ID, which mainly consist of people of lower socioeconomic class, and the Black and Latinx communities (Quinell, Kenneth, 2014).

In the court case U.S. v. Cruikshank of 1876, the court decided that perpetrators involved in the Colfax Massacre, an event in which an anti Reconstruction motivated paramilitary group attacked, murdered and tortured between 65 and 153 black men, should not be convicted of violating the Enforcement Acts and be let free (Palmer, Robert, 1984). The Enforcement Acts “ prohibits discrimination by state officials in voter registration on the basis of color… to bring charges against offenders for election fraud, the bribery or intimidation of voters, and conspiracies to prevent citizens from exercising their constitutional rights” (Wright, Kianna, 2019). This decision made by the Supreme Court meant that the federal government could no longer use the Enforcement Acts to prosecute any paramilitary groups. (militia groups unaffiliated with the U.S. military) This meant that intimidation, murders, and Black voter suppression by militias could continue, and served to help anti reconstructionist democrats regain political control after the civil war. Given that the January 6th insurrection on the Capitol occurred on the day that Congress was to certify the 2020 election, we assert that this is another example of voter suppression and is an attempted violation of constitutional liberties. Today the Enforcement Acts do not have much power to prosecute due to the undermining of the Acts by the Supreme Court in past cases, and it is unlikely that these Acts could be used to prosecute insurrectionists (Vance, Joyce, 2021). Instead, many were charged with conspiracy, theft, assault, or destruction of property (NPR, 2021).

Finally, Plessy v. Ferguson in 1896 upheld the constitutionality of racial segregation and Jim Crow in the south in a 7-1 decision, and stated that although the 14th amendment establishes the legal equality of White people and Black people, it did not and could not, require the elimination of all social or other “distinctions based upon color”. The court in this instance acknowledges that strong shared beliefs within a society can be more powerful than the law. The law influences the society just as the society influences the law, and they are reflective of one another. This decision validates the shared belief in American society at the time that Black Americans were not the same as the rest of society, and this validation was coming from the highest court in the land. Again, in this case the court deferred to the American state legislatures’ inherent power to “police power.”

Time and time again, the Supreme Court refused to validate any effort for reconstruction in terms of progress towards racial equality. Instead, the efforts against reconstruction were validated by these decisions and the shared beliefs that Black Americans were inferior and “othered” would be strengthened. Instead of making these cases about racial discrimination and oppression, the court chose to make it about federalism and states’ rights, deferring to their police powers. With the scope of police powers being so broad, this gave opportunity for the states to use the police to “protect the safety, health, welfare, and morals of the community” by specifically targeting the black community, as they posed a threat to their current way of living. This struggle would continue as propaganda associated the Black community with being dangerous and immoral in an attempt to justify their oppression. In a study by Dr. Travis L. Dixon from the University of Illinois, the extent to which national and local news media outlets distorted representations of the Black community was examined. The findings show that news and opinion media outlets portray Black families inaccurately as being in poverty or on welfare rather than white families, implying laziness and dysfunction. They depict Black fathers as being absent and that Black mothers make bad decisions about how to raise a family. Finally, they overrepresent the association between Black families and criminality, while underrepresenting white families’ association with crime (Dixon, Travis L., 2018). This study was conducted in 2018, which tells that this type of distortion of the image of the Black community still goes on today. This can subconsciously change the image of this community for those who are consuming media and exist outside of the community. This subconscious distorted image leads to the othering of this community, and in turn the justification for oppression and prejudice against them.

It wasn’t until 1954 that Brown v. The Board of Education of Topeka overturned the previous precedent set by the 1896 decision of Plessy v. Ferguson of “separate but equal” (HISTORY, 2021). By equalizing education and other public institutions for white people and black people, this would entail opportunity for societal progress for the Black community. Throughout the latter half of the 20th century, the Civil Rights Movement gained traction, but opposition to equality continued to come up with new ways to oppress and hold back black and other marginalized communities. Even with all of the efforts of the civil rights movement to gain equality, policies put in place do not always reflect reality and inequality still persists. One place that inequality persists today is in education. This is because where students live affects where they go to school. White students are typically more concentrated in suburban and rural communities. Black, Hispanic and Asian students are most often found in urban communities. Funding for education comes from the income tax of the community that the school resides in, and typically the white concentrated communities bring in more tax dollars. This is why some schools are able to provide a better, more quality education than others, and most often those schools are mostly populated by white students (EducationWeek, 2014).

One of the most prominent tools used against minority communities after the Civil Rights Era was the introduction of the War on Drugs, police brutality, and mass incarceration. All of the previous events leading up to this point created a social climate with great division and high tension. Additionally, widespread misconceptions and continued “othering” of the Black community made it easier for white Americans to support discriminatory policies.

A combination of expanded police powers and society’s held belief of prejudice against Black and other minority communities would entail more struggles for these groups as time goes on, despite perceived progress. Read Part II of this blog post, which provides a brief history of the War on Drugs, its origins rooted in prejudice, and how its implementation has led to the present day disproportionate targeting and incarceration of minority communities, especially Black communities, for drug related crimes.

Part II: Brief History of The War on Drugs and its Implications

In Part I of this blog post, we outlined the history of systemic racism, as well as highlighted important events (e.g., Plessy v. Ferguson case), practices (e.g., expanded police powers), and laws (e.g., restrictive voting laws, racist implications within the Constitution) that set a precedent for the ongoing institutionalized racism we see in modern America. In Part II, we will provide a brief history of the War on Drugs and discuss the various negative implications the drug war has had - and still continues to have - on society, as well as how it disproportionately affects our Black and Latinx communities and further promotes racist ideals, discriminatory policies, and stigmatization.

War on Poverty? War on Crime? War on Drugs.

It was in the mid-1960’s when President Lyndon B. Johnson announced both a War on Poverty and a War on Crime. In 1964, when the War on Poverty was declared, the Johnson administration set out to foster equality and boost economic opportunity. However, Johnson’s initiatives reflected the deeply-rooted, and widespread, false assumptions about Black people and their role in deviance and crime, so Johnson announced the War on Crime shortly after in 1965 (Hinton, 2017). With this newly-founded war came the 1965 Law Enforcement Assistance Act, which “established a direct role for the federal government to take in local police operations, court systems, and state prisons” (Hinton, 2015). It also militarized the police, allocating money for bulletproof vests, helicopters, tanks, rifles, and other military-grade equipment for their departments.

Not a decade later, in June 1971, President Nixon officially declared the War on Drugs, announcing that drug use was “public enemy number one.” With this war on drugs, the Nixon administration increased federal funding for drug-control agencies and implemented strict, mandatory punishments for drug crimes. By 1973, Nixon had established the Drug Enforcement Administration (DEA) - a special police force that aims to enforce the strict new drug laws. In the beginning, the DEA consisted of less than 1,500 special agents and a budget of less than $75 million. Currently, the DEA has nearly 5,000 agents and a budget exceeding $2 billion (HISTORY, 2019).

Nixon’s domestic policy chief, John Ehrlichman, revealed in a 1994 interview with Harper’s Magazine the devastating, ulterior motives behind the War on Drugs campaign. He states that the Nixon administration had two enemies: “the anti-war left and Black people.” He goes on to say, “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” (History, 2019). You can learn more about the politicization of cannabis from previous published blog posts by the members of TTSRC.

In 1978, The Comprehensive Drug Abuse Prevention and Control Act was amended, allowing law enforcement officers to seize all money and/or “other things of value furnished or intended to be furnished by any person in exchange for a controlled substance [and] all proceeds traceable to such an exchange" (PBS, 2014). With probable cause, an officer can search you and/or your vehicle/residence. It is common, especially in states where cannabis is still illegal, for officers to use the smell of cannabis as probable cause to search your person and/or vehicle and seize your cannabis, paraphernalia, and cash. Even some legal states still use this tactic, which certainly raises the concern about entrapment. If the drug is legal to possess and consume, then the smell of the drug should not be sufficient grounds for a search and seizure of any person and their possessions. A few of the states where cannabis is legalized recognize this, and thus the smell of cannabis is no longer considered as being sufficient grounds for a search and seizure in those certain states (Rubinkam, 2019). With millions in asset forfeitures, the officers can use the cash to fund their police departments. The more drug busts the officers can accomplish, the more money they can seize. This consequence results in police departments turning to asset seizures to compensate for shortfalls in their budgets (“policing for profit”); in doing so, officers over-enforce crimes that have the possibility of forfeiture (e.g., minor drug offenses) and neglect other, more important objectives that impact public safety (Drug Policy Alliance, 2020). Again, police powers here are prevalent, with officers ready to jump at any opportunity to make a bust; especially in marginalized communities where even today, although Black and white Americans sell and use drugs (all drugs, not just cannabis) at similar rates, Black Americans are more likely to be arrested for drug-related offenses (Hamilton Project, 2016).

Ronald Reagan, in 1986, signed The Anti-Drug Abuse Act which allotted nearly $2 billion to fight the drug crisis. Almost $100 million is allocated to build new prisons. The bill also introduced mandatory minimum sentencing for drug offenses (PBS, 2014). The 1980’s were notorious for the crack epidemic. In response to this epidemic, which primarily was associated with the Black community, the bill mandates a stricter sentence for crack-cocaine-related offenses and more lenient sentencing for powder-cocaine-related offenses, which was associated with the elite. Chemically, crack-cocaine and powder-cocaine are the same; the difference is which groups of people are associated with which form of the drug. Because of this, racial disparities within the prison population were exacerbated. From 1991 to 2001, nine times as many Black people as white people went to prison for crack-cocaine offenses (EJI, 2019).

The Statistics

We have seen this again and again throughout history - drugs being used as a proxy to maintain social control and further disparage those in marginalized communities. Currently, nearly 80% of people in federal prison for drug offenses are Black or Latino. Research also indicates that prosecutors are twice as likely to pursue a mandatory minimum sentence for Black people as for white people charged with the same offense (Drug Policy Alliance, 2020). In fact, a report from ACLU shows that, despite the legalization and decriminalization efforts for cannabis across the country, and despite extremely similar usage rates, Black people are 3.6 times more likely than white people to be arrested for cannabis possession. West Virginia has one of the highest racial disparities in the nation, with Black West Virginians being 7.3 times more likely to be arrested for cannabis possession than white West Virginians (ACLU, 2021).

In 1980, a little less than 41,000 people were incarcerated for drug offenses in the U.S. (The Sentencing Project, 2020). Today, there are more than 450,000 people incarcerated in the U.S. for drug offenses, with an additional one million people on probation and parole for drug-related offenses (Pearl, Betsy, 2018). The U.S. has the highest rate of incarceration in the world. In fact, 20% of the world’s incarcerated are right here in America. It is beyond time to reconsider the War on Drugs.

Conclusion

As it is explicitly stated in the first paragraph of the U.S. Constitution, “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

One could question whether the government has ever upheld these standards proportionately for all its people. The framers and authors of the Constitution held beliefs contrary to the sacred words printed on the pages - words that spoke of equality, tranquility, and peace (James Madison's Montpelier). Throughout American history, this contradiction between written ideals and the reality of society has translated into the processes of the judicial system. Consistent expansion of police powers which protect “the morals, safety, and welfare of the community”, combined with active efforts to associate minority communities with being immoral, dangerous, and deviant, has led to the justification of their oppression in the minds of the overall society. Those who do not experience this separate and unequal reality of American society fail to realize the injustice that is taking place. The War on Drugs has been used to instill fear into the majority, and minorities used as a scapegoat to justify their mass incarceration and stigmatization. In the words of Martin Luther King Jr., “Justice too long delayed is justice denied.” The power to create change exists in the hearts of all of us, but first this must be realized.

If you would like to take action now, please visit and consider signing the following petitions:

ACLU (American Civil Liberties Union) - ACLU - Divest From The Police, Invest in Black and Brown Communities

DPA (Drug Policy Alliance) - Tell the Biden administration to prioritize drug policy reform

DPA - Decriminalize Drugs and Dismantle the Drug War

DPA - End drug war-fueled police militarization

DPA - Congress Must Act on Police Violence

DPA - Protect people behind bars from COVID-19

DPA - Tell Congress: Support the CARE Act to Prevent Overdose & Save Lives

SSDP (Students for Sensible Drug Policy) - Support the Marijuana Opportunity Reinvestment and Expungement Act of 2019 (MORE Act)

SSDP - Demand a comprehensive overhaul of our criminal justice system