© by Trace Taylor (2015)
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The “War on Drugs” is a racist initiative. Statistics and informant-provided information support this conclusion. The examination of both qualitative and quantitative evidence is examined, and with substantive evidentiary weight, supports the argument that the war on drugs is an active government funded war on minority males. Descriptive and inferential statistics support an argument that due to the human factor of discrimination, legal formalism, which does not take into account cultural, social, and economic context, does not provide an equal footing in the adjudication process. This argument is made plausible by the firsthand accounts from a white, well educated, middle-class, reasonable male and Assistant State’s Attorney, an informant for David D. Cole’s 2001 speech, Formalism, Realism, and the War on Drugs, as printed in the Donahue Lecture Series at Suffolk University, Georgetown Law.
In no uncertain terms, “the war on drugs is sustainable only because of that (racial and economic) disparity and that society’s response to drugs would be very different if we were willing to take full account of, and responsibility for, that disparity” (Cole 242). This stance is supported by a defined legal formalism: the philosophy behind the war on drugs, and though predominantly replaced by legal realism, still highly influential in how we think about criminal law. We are presented with the eyewitness observations of Cole’s State’s Attorney who prosecuted daily line ups of lesser drug offenders using a legal philosophy that he believes removes the crime from its cultural, social, and economic context: legal formalism (Cole 241).
The issue of free will is the basis for the defense of legal formalism along with the question of what constitutes free will. Formalism’s unilateral disregard for the social, cultural, and economic context of a crime created a system neither natural nor neutral. This is demonstrated in a case study, Lochner v. New York: a labor dispute between bakers and bakery owners (Cole 243). Formalists argued that preconstructed relationships, through regulation, create contractual limits, which diminish free will by lessening the self-determinate power of the parties. Any attempt to redistribute economic bargaining power was seen by the formalists to be an infringement on the very libertyprotected by due process.
Realists refute the formalist postulation of deregulation, concluding that because the bakers did not have the same economic power as the owners, their bargaining power was already diminished and that by constructing and regulating the contractual relationship, the playing field could be leveled giving the less empowered a fair shake (Cole 243). Through Lochner v. New York we can see the legal realist visual of a formalist criminal justice system constructed to serve a much lower percentage of the population than the greater percentage of oppressed and disenfranchised, typically women and minorities (Cole 243, 244). Realists support the idea that greater legal or contractual supported relationships allow for greater unilateral equality.
Many might argue that the qualitative support isn’t enough to prove a racist initiative, but their posturing fails in the face of irrefutable quantitative data. A great deal of inferential statistics constructs for us a visual quantitative measure of the minority’s plight in relation to the war on drugs. A detailed study of “2000 murder cases in Georgia in the 1970s” determined that a white victim’s killer was 4.3 times more likely to receive the death penalty then killers of a minority person (Cole 246). Some might argue that that the study is dated and that it doesn’t give a current realistic picture. A similar study from 1990, shows with inferential quantitative continuous data that the 70s study is supported even now by substantiated conviction and release demographics.Both studies are further substantiated with a population sample from an annual household survey conducted by the United States Public Health Service. The study demonstrates with ratio data that drug use is “roughly proportionate across the ethnic spectrum. In 2000, 6.4% of whites and of blacks and 5.3% of the Hispanics reported illicit drug use” (Cole 247). Racial profile studies conducted throughout a broad population sample provides irrefutable proof that while race plays a dominant role in target selection by a majority of the sample, it is not indicative of guilt. 73% of drivers stopped by Maryland police were minorities. Yet equal percentages of blacks and whites searched were found to have contraband (Cole 247).
A startling analysis of the 1995 arrest and incarcerations rates revealed that while only “14-15% of the drug users were black, they represented 35% of those arrested for drug possession, 55% of those convicted for drug possession, and an overwhelming 74% of those sentenced to prison for drug possession” (Cole 248). While African Americans arrested for drug crimes were sentenced 5 to 6 times their representation in the population. An analysis of quantitative ratio data of arrests and convictions from 1925 through 1996 supports this finding. New demographic ratio data illustrates a 400% increase in incarceration rates with drug crimes representing 59% of those incarcerations at the federal level and 21% at the state level. “From 1986 to 1991 the number of white incarcerations jumped by 110% but the number of black offenders incarcerated grew by 465%” (Cole 250, 251).
Our judicial system has played a major role in setting up drug crimes as a billion dollar industry. The worst of the repercussions for this are near impossible to put into quantitative terms, the degraded legitimacy of our criminal justice system which based on the statistical evidence appears highly prejudiced against minorities and untrustworthy due to the “sheer amount of money involved in drug crimes on both sides of the U.S.–Mexico border” (Cole 252, 253). Who can be trusted? Who gains from the drug traffic? Who gains from the political, and legal aspects of drug crimes? These are all questions that cannot be currently addressed in statistical terms.
A variety of quantitative inferential ratio based statistics lend credence to the legal formalist philosophy of neutrality masking political choices founded in discrimination of minorities. The evidence implies that the formalist justice system cannot possibly provide the fair and equal treatment it attests to. An array of proofs contend that “by all accounts, the war on drugs has been a failure” (Cole 252). The statistics presented support this argument show an ever-growing disparity faced by minorities in the American Courts, but there is a mixed solution.
Race isprobably better excluded from the criminal justice system and formalism isprobably the best philosophy by which to chart our legal course but with a realism scrutiny riding shotgun over the system. This would serve the country and its minorities better in the long run by providing the desperately lacking neutrality in looking at otherwise omitted context of culture and economics. Minorities and the faulty model of formalism would serve the population better were it to offer education, support, and treatment (Cole 254, 255). A Rand study shows drug treatment is proving up to seven times more cost effective than incarceration in reducing drug consumption (Cole 252).
We have seen, through varied statistical evidence, that the legal formalism of the United States criminal justice system in its defense of freewill has created a situation in which minorities are not afforded equality in the courts. While race is not a factor in the legal philosophy, by not taking into account the cultural, social, and economic context in which freewill is subjugated, the neutrality formalism boasts and defends is virtually nonexistent. Demonstrative data that dates back to the early 1900s attests to this fact early in our judicial history. The evidence shown supports the ineffectual and inefficient nature of drug crime incarceration and suggests education, treatment, and support is up to seven times more economically efficient than incarceration. Lastly we see how the legitimacy of our courts is diminished by our discriminatory tendency and inevitable corruption that generally accompanies vast amounts of money. The data leaves little doubt about the racial drive behind the war on drugs or that realism should oversee the formalist system in order to keep it fair and to keep it real.
Works Referenced
Cole, David D. Formalism, Realism, and the War on Drugs. Donahue Lecture Series, Suffolk University, Georgetown Law. Speech. 2001. Web.
Lind, Douglas A., Marchal, William G., and Wathen, Samuel A. Statistical Techniques in Business and Economics, sixteenth edition. McGraw-Hill Education. New York New York. 2015. Print
Trace Taylor 