Updated: Aug 29
Editor’s Note: Today’s post comes from Matthew June, a PhD candidate at Northwestern University. June’s current work studies the sources of federal power to prosecute national drug laws.
The United States has a massive prison problem. As more attention has been drawn to this stark reality, it has become equally clear that there are no simple solutions or easy explanations. Nonetheless, while many have cited the “war on drugs,” others have dismissed this as too small a part in the larger problem. Last summer a Washington Post Op-Ed argued, “ending the war on drugs would not end mass incarceration.” Taking these back of the envelope calculations a step further, Slate highlighted how reforming the federal system wouldn’t help the country’s 1.3 million state prisoners. This proposition has again come to the fore in debates over Hillary Clinton’s responsibility for the rise of mass incarceration. Arguing against such a conclusion, German Lopez of Vox recently insisted, “Federal policy is not the cause of mass incarceration” because “federal prisons house only 13 percent of the overall prison population.”
As there are “lies, damn lies, and statistics,” there are many ways to look at these numbers – especially the fact that over half of all federal prisoners are there for drug charges. While it is reasonable to note how this is only a small step for criminal justice reform, changes in federal drug sentencing could benefit nearly 1 out of 20 people under some form of local, state, or national supervision. Put another way, releasing every federal drug offender might not bring us out of the top spot for world incarceration rates, but even a five percent dent in our overall numbers cannot be dismissed. Just ask my students if they wouldn’t mind dropping from an “A-” to a “B+” and you will get a pretty good sense of how just a slim percent difference can seem mighty important to those directly affected. But this somewhat flippant re-examination of the statistics only belies a small sliver of the overall federal role in the “war on drugs” and its impact on mass incarceration. The 105,000 men and women behind bars for federal drug charges are just the most visible part of the federal role in the national “war on drugs.” And the causes and consequences of that role demand ongoing attention from scholars and others.
Historians are continuing to explore new sources that add to the fullest possible picture of the country’s modern drug wars. While much of that early work focused on state and local developments, especially the passage of New York’s Rockefeller drug laws in 1973, more and more scholars are beginning to examine the construction of the carceral state at all levels of governance. However, I would still like to briefly highlight a few of the reasons why the impact of federal drug laws goes far beyond the number of inmates on roll calls at federal lock-ups.
First and most obvious, national leaders help set a national agenda, taking on issues that both harness and influence public concerns. Those concerns can, in turn, trickle down to affect the priorities of state and local leaders. Although more work needs to be done on how these declarations were translated into action, historians have drawn our attention to the importance of presidential rhetoric, especially the proclamations of “war” by Presidents Nixon and Reagan. This politicking not only reflected but also reshaped public priorities. According to the Drug Policy Alliance, between 2 and 6 percent of surveyed Americans rated drug abuse as the country’s top problem in 1985. By September 1989 – the same month George H. W. Bush gave his infamous crack address – a whopping 64 percent of the public was more concerned about drugs than anything else. The country’s attention quickly moved on to other things, including the first Gulf War, but the punitive penalties enacted during this period persisted.
In fact, the federal government just got more punitive over the next decade and – enhancing its impact – poured more and more money into state and local coffers to do the same. It is this sharing of resources that extends the reach of federal policing far beyond the total number of federal inmates. As Donna Murch noted in a recent piece, Bill Clinton’s signing of the Violent Crime Control and Law Enforcement Act instituted a federal “three strikes” rule that ratcheted up mass incarceration and – equally important – “established a $30.2 billion Crime Trust Fund to allocate monies for state and municipal police and prison expansion.” Federal funding of state and local police forces has persisted since the administration of Lyndon Johnson and the creation of the Law Enforcement Assistance Administration. Just two summers ago, events in Ferguson first drew national attention to how the most recent iteration – the now infamous 1033 Program – has continued to spread the martial ingredients of the drug war. Since 1988, the DEA has also worked closely with police forces in High Intensity Drug Trafficking Areas (HIDTAs), where they have shared intelligence, policing responsibilities, and prosecutorial resources. Those multi-level dragnets have captured suspects that can then either be charged at the state or federal level, depending on a variety of considerations.
Federal authority has been most visible in securing plea deals from an incredibly high percentage of those arrested with local, state, and DEA forces working together, but that power can also be applied without state cooperation. In October 2014, the recently deceased Supreme Court Justice Antonin Scalia gave a speech in Denver and was asked about the conflict between state and federal marijuana laws. Dodging the question for fear of jeopardizing his chance to weigh in on future cases, Scalia still saw fit to inform his teenaged inquisitor, “the Constitution contains something called the Supremacy Clause.” This was not so much a revelation as it was a reminder. While many states are legalizing marijuana or establishing medical dispensaries, federal power still rests on the Court’s 2005 decision in Gonzales v. Raich. Scalia voted with the majority in that case, which upheld an expansive vision of federal authority to police purely intrastate commerce and override state laws.
The year started with an interesting reminder of this power – even if many people missed it. After the collective cultural binge on Netflix’s Making a Murderer, over a hundred thousand Americans signed petitions for President Obama to commute Steven Avery’s sentence for murder. This prompted the White House to kindly remind us that the President has no authority to pardon state criminal offenses. In fact, the crime Avery “allegedly” committed is not a federal crime. On the other hand, if he had been smoking a joint, holding a bag of meth, or operating a state-licensed marijuana dispensary, Avery could have been convicted of a federal crime even without the cooperation of the state or his friends at the Manitowoc County Sheriff’s Department. President Obama and his two attorneys general have lately supported states’ rights to choose their own drug laws, but that is not official policy and – even with legalization measures on the ballot – the future if legalization depends ultimately on the next President. As the current election continues to surprise, it is important for the public to stay mindful of this power and for historians to keep plumbing the depths of American politics “from whence it came.”