Race, the War on Drugs, and the Collateral Consequences of Criminal Conviction

Abstract

This essay explores the impact of racial discrimination on the imposition of collateral consequences on those convicted of crime. The category of serious crime which is intrinsically most subject to discretionary enforcement is drug law violations; the number of violators far exceeds the criminal justice resources available to investigate, prosecute and punish them. Accordingly, a high level of selectivity is inevitable. At the same time, the best evidence for racially discriminatory prosecution is in the area of drug violations; while most drug offenders are white, most people imprisoned for drug violations are not. African Americans are imprisoned for drug offenses at rates that far exceed their representation in the general population, in the population of drug offenders, in the population of those arrested for drug crimes, and in the population of those convicted of drug crimes.

The essay also notes that of all categories of crime, drug convictions have been freighted with the most severe collateral consequences. Under statutes which do not apply to convicted rapists, murderers or terrorists, drug offenders may lose student loans and other educational benefits, their drivers' licenses, access to public housing, food stamps and other benefit providing necessities of life. These collateral consequences are so numerous and burdensome that they may interfere with former prisoners' ability to reenter society and support themselves without reoffending. Unfortunately, the legislative history of the development of collateral consequences such as disenfranchisement, like the development of the drug laws themselves, suggests that the laws were enacted with racial minorities in mind. The essay concludes by proposing that jurisdictions reexamine the way in which collateral consequences are imposed.

Keywords: Drugs, narcotics, discrimination, Jim Crow, collateral consequences, punishment, sentencing

JEL Classification: K14, K49, J71