US judges should and could immediately end the War on Drugs, because institutional racism creates unequal protections for whites compared to minorities, researchers say. “We think that it is not possible for the State of California to justify the scheme of total marijuana prohibition, because the racism behind marijuana prohibition in the early 1900s is patent, beyond the pale, and totally indefensible, and also because the data analysis presented here on arrests for marijuana offenses shows a disparate impact with regard to the arrests of Blacks and Hispanics,” wrote Florida Atlantic University assistant professor Mirya Holman and Kennesaw State University professor Kenneth Michael White in their paper 'Marijuana Prohibition in California: Racial Prejudice and Selective Arrests' (subscription), published in the academic journal Race, Gender and Class.
The two performed historical research and a racial analysis of marijuana arrest patterns in California to come to their conclusions, arguing that “the racism of the past is the most likely explanation for the current inequality of marijuana arrests in California.” And the “ the courts may be the only branch with the independence to act”.
White is an assistant professor of Political Science & Criminal Justice in the Department of Political Science & International Affairs at Kennesaw State University. Holman is an assistant professor in the Department of Political Science at Florida Atlantic University. The two looked at the origins of marijuana prohibition in California and the United States and found a pattern of intense racism animating the creation of drug laws. California started a war on (almost totally brown) marijuana users in 1913, while the US codified its marijuana war (on brown people) in 1937.
In California, a bureaucrat named Henry J. Finger outlawed the herbal remedy with an amendment to the Poison Act, citing use by Asians. “ Within the last year we ... have been getting a large influx of Hindoos ... they have ... quite a demand for cannabis ... are a very undesirable lot ... the fear now is that ... they are initiating our whites into this habit.”
Keep in mind, this was a time when blacks couldn't date or marry whites without risking death, and other minorities were equally mistreated, researchers note.
“In a pre-Brown v. Board of Education policy climate, there is no need to deliberate or look for evidence [of overt racism], because once it has been established that non-whites are using an intoxicant that is perceived to threaten the innocence of white youth, 'no further excuse was needed.'”
Finger amended the California Poison Act to ban marijuana, despite the protests of the medical establishment.
At the federal level, marijuana prohibition targeted not only “Hindoos” but “degenerate Spanish-speaking residents” and blacks involved in jazz, according to reports at the time.
“I wish I could show you what a small marihuana cigarette can do to one of our degenerate Spanish-speaking residents. That's why our problem is so great; ... our population is composed of Spanish-speaking persons, most of whom are low mentally, because of social and racial conditions,” went one police letter to Congress in support of the Marijuana Tax Act.
Chief proponent and beneficiary of marijuana prohibition Henry J. Anslinger argued that marijuana was an uncertain "killer": "No one knows, when he places a marijuana cigarette to his lips, whether he will become a joyous reveler in a musical heaven, a mad insensate, a calm philosopher, or a murderer.”
Anslinger claimed marijuana caused "murders, suicides, robberies, criminal assaults, holdups, burglaries, and deeds of maniacal insanity.”
The American Medical Association protested the Marijuana Tax Act, pointing out that there was no factual basis for the claims made about the dangers of marijuana.
Today, blacks and other minorities in California and the rest of the country bear the brunt of punishment under US drug laws, despite similar levels of use as whites. The researchers found:
“The Black population, in contrast with the other racial groups, is greatly overrepresented in the arrested population (21% of those arrested for marijuana crimes) when compared to their representation in the general population, where they comprise 6% of the population.”
“There are, on average, 3.4 marijuana arrests per 1,000 residents from 2000 to 2008. Looking at arrests for Blacks, however, the average rate of marijuana arrests is 6.1 per 1,000 Black residents. Whites and Hispanics average arrests rates of 1.6 and 1.8 per 1,000 residents, respectively.”
“Similarly, the rate of felony marijuana arrests per 1,000 residents among the Black population is far higher (1.9 felony arrests per 1,000 Black residents) than the average rate overall (0.4 arrests per 1,000), for whites (0.3 arrests per 1,000), or for Hispanics (0.3 arrests per 1,000)”.
These inequalities combined with the racist origins of marijuana prohibition, constitute “institutional racism,” the authors argue.
“Institutional racism refers to bias that is neither personal nor ideological, but rather a collective usage or custom that allows an agency to subordinate a group of people as a matter of practice simply because of their membership in that particular group.”
Today, "More than eight of ten individuals in prison from drug offenses are black or Latino," the researchers found. One percent of Californians are in prison, but 3 percent of black Californians are.
Those numbers jibe with a report released in March by the Oakland city commission monitoring OPD's compliance with Measure Z, a voter-approved measure that made pot use a low enforcement priority for the police. According to the Cannabis Regulatory Commission's biennial report, roughly 90 percent of marijuana arrestees in the city were black or Latino.
“[It] is not possible to ignore the latent racism underlying the continuation of prohibition,” the researchers conclude, and such latent racism sets up the drug war for a constitutional challenge.
“According to the United States Supreme Court, a criminal defendant may make a claim of 'selective-prosecution,' ... an ... assertion that the prosecutor has brought the charge for reasons prohibited by the Constitution," they explain.
“To succeed with such a claim, the defendant must show: both 'a discriminatory effect and ... a discriminatory purpose'... if it can be met, then 'the prosecutor is called upon to justify ... decisions made in the very case then before the court' (United States v. Armstrong, 1996:467). The United States Supreme Court has not applied this claim of selective-prosecution to arrests, but we think it should in the case of marijuana arrests.”
“We argue: if the original intent behind a policy scheme is shown to be based on patent racial animus-i.e., shows 'a discriminatory purpose'-and, if the current enforcement of that policy scheme in terms of arrests results in a statistically significant disparate impact on the basis of race at the aggregate level-i.e., shows a 'discriminatory effect'-then a prima facie case of what we call selective-arrest has been shown, which should require the government to change or justify its policy scheme.”
The researchers recommend California return to an official “medical approach” to cannabis, as opposed to the "theoretical" approach California currently has.
“Medical marijuana is in effect the policy paradigm that existed before prohibition began in the early 1900s. If the racial prejudice were removed from the story, then we posit that prohibition would never have passed and, therefore, the policy framework that would have existed had prohibition never come up would have been a framework of regulation and of physician-controlled cannabis distribution.”
They echo George W. Bush who said in his January 23, 2007, State of the Union Address: "The best health care decisions are made not by government and insurance companies, but by patients and their doctors."