University of Arkansas at Little Rock Law Review University of Arkansas at Little Rock Law Review
Volume 44 Issue 4 Article 1
2022
The Racist Roots of the War on Drugs and the Myth of Equal The Racist Roots of the War on Drugs and the Myth of Equal
Protection for People of Color Protection for People of Color
andré douglas pond cummings
University of Arkansas at Little Rock William H. Bowen School of Law
, acummings@ualr.edu
Steven A. Ramirez
Loyola University Chicago School of Law
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andré douglas pond cummings and Steven A. Ramirez,
The Racist Roots of the War on Drugs and the
Myth of Equal Protection for People of Color
, 44 U. ARK. LITTLE ROCK L. REV. 453 (2022).
Available at: https://lawrepository.ualr.edu/lawreview/vol44/iss4/1
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453
THE RACIST ROOTS OF THE WAR ON DRUGS & THE MYTH OF
EQUAL PROTECTION FOR PEOPLE OF COLOR
*
andré douglas pond cummings
and
Steven A. Ramirez
I
NTRODUCTION
By 2021, the costs and pain arising from the propagation of the Ameri-
can racial hierarchy reached such heights that calls for anti-racism and crim-
inal justice reform dramatically expanded.
1
The brutal murder of George
Floyd by the Minneapolis police vividly proved that the social construction
of race in America directly conflicted with supposed American values of
equal protection under law and notions of basic justice.
2
The racially-driven
War on Drugs (WOD) fuels much of the dissonance between American le-
*
Associate Dean for Faculty Research & Development and Charles C. Baum Distinguished
Professor of Law; Co-Director, Center for Racial Justice and Criminal Justice Reform, Uni-
versity of Arkansas at Little Rock William H. Bowen School of Law; J.D. Howard University
School of Law. acummings@ualr.edu. This Article represents Part II of our War on Drugs
trilogy appearing in the Tulane Law Review (Part I – Roadmap for Antiracism: First Unwind
the War on Drugs Now), the UA Little Rock Law Review (Part II – The Racist Roots of the
War on Drugs & The Myth of Equal Protection for People of Color) and the Loyola Chicago
Law Review (Part III - The Illinois Cannabis Social Equity Program: Toward a Socially Just
Peace in the War on Drugs?). Ending the War on Drugs and repairing the communities that it
has destroyed must become top priority for any concerned citizen, legislator, public official
and judge. I am grateful to Katherine James Clark, Bowen Law School, class of 2024, for her
terrific research assistance. Thanks to Professors Yvette Lindgren and Guadalupe Luna for
reading and commenting on early drafts of this paper. I am further grateful to the UA Little
Rock Law Review editorial team for its excellent work, particularly to Chris Musteen and
Sloane Stine for excellent feedback and editing. Of course, as usual, any errors within are the
sole responsibility of the authors.
Abner J. Mikva Professor of Law; Director, Business Law Center, Loyola University Chi-
cago School of Law. s[email protected]du.
1. Andrea Gawrylewski, The Case for Antiracism, SCI. AM. (July 21, 2021),
https://www.scientificamerican.com/article/the-case-for-antiracism/ (“In the year since a
Minneapolis police officer kneeled on George Floyd’s neck for more than nine minutes and
stopped the man’s heart, a record number of protesters have taken to the streets around the
world to demand change.”).
2
. Id. (“It is an unequivocal scientific fact that race is a social construct, not a biologi-
cal one. The implicit prejudices and biases we carry against those unlike us are real, but soci-
ety instills them in our subconscious mind, and they are therefore malleable.”).
454 UA LITTLE ROCK LAW REVIEW [Vol. 44
gal mythology—such as the non-discrimination principle and the impartial
administration of the rule of law—and the reality of race in the United
States.
3
Mass incarceration of people of color pursuant to the War on Drugs
betrays any semblance of equal protection under law.
4
Yet, the Supreme
Court stubbornly clings to notions of equal protection and animus that oper-
ate primarily to protect powerful white Americans, and to leave laws such as
the Controlled Substances Act
5
intact and fully operational, notwithstanding
the fact that under that Act people of color suffer grossly disproportionate
incarceration relative to whites who are more frequent users of illicit drugs.
6
3
. andré douglas pond cummings & Steven A. Ramirez, Roadmap for Anti-Racism:
First Unwind the War on Drugs Now, 96 T
ULANE L. REV. 46970 (2022) (“The War on
Drugs (WOD) transmogrified into a war on communities of color early in its history and its
impact devastated communities of color first and foremost. People of color disproportionately
suffered incarceration in the WOD even though people of color use illegal narcotics at sub-
stantially lower rates than white Americans.”). The most recent data gathered by the U.S.
government establish the racist implementation and execution of the WOD. See U.S.
DEP’T
OF
HEALTH & HUM. SERVS., SUBSTANCE ABUSE AND MENTAL HEALTH SERVS. ADMIN., 2019
NATIONAL SURVEY OF DRUG USE AND HEALTH (NSDUH) RELEASES, TABLE 1.22B, (2019),
https://www.samhsa.gov/data/sites/default/files/reports/rpt29394/NSDUHDetailedTabs2019/
NSDUHDetTabsSect1pe2019.htm (showing that Whites use drugs at greater rates than Afri-
can Americans and Latinos in virtually all age groups). See also P
AUL BUTLER, CHOKEHOLD:
POLICING BLACK MEN 12122 (2017) (“Today most people know that ‘the war on drugs’ has
been selectively waged against African Americans. . . . For drug crimes, African Americans
are about 13 percent of people who do the crime, but about 60 percent of people who do the
time.”).
4
. As Doris Marie Provine writes:
[T]his review considers this paradox of persistent racial inequality in an ostensi-
bly post–civil rights era. Even gross differences in the incarceration of African
Americans and Latinos for drug activity fail to provoke an effective response.
Yet overincarceration is one of the most significant barriers to racial equality in
the United States. Ironically, the nation’s embrace of a color-blind ideology that
conceptualizes racial discrimination in individualistic terms seems to prevent
Americans from taking account of the structural barriers to racial equality created
by the war on drugs.
Doris Marie Provine, Race and Inequality in the War on Drugs, 7
ANN. REV. L. SOC. SCI. 41,
42 (2011).
5. Controlled Substances Act, Pub. L. No. 91-513, §§ 100-709, 84 Stat. 1242–84
(1970) (codified as amended at 21 U.S.C. §§ 801-904).
6
. See Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891,
1916 (2020) (holding that racist statements of President did not support finding racial animus
of administration policy against same group); Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 26667 (1977) (denying relief under the Equal Protection Clause absent
“proof that a discriminatory purpose has been a motivating factor in the decision.”) Notably,
whites invoking Equal Protection claims need not show racial animus. See Fisher v. Univ. of
Tex., 136 S. Ct. 2198, 220508 (2016) (reviewing only the process of admissions at universi-
ty while requiring no showing of harm to victim nor animus based upon race). Moreover, the
Court relieves white plaintiffs from the need to show harm. See Juan Perea, Doctrines of
2022] RACIST ROOTS 455
This Article shows that the War on Drugs originated with animus
against people of color: specifically, with the intent to demonize people of
color and to propagate fear within the entire American body politic while
assuring disproportionate punishment towards communities of color.
7
The
WOD continues to this day to consume human potential and inflict dispro-
portionate suffering on communities of color despite wide-ranging evidence
of its racist origins and racist impact.
8
As such, the Fifth Amendment’s
equal protection guarantee should operate to invalidate the Controlled Sub-
stances Act
9
and liberate all victims of the racist WOD.
10
Only then will the
promise of the rule of law and equal protection under law achieve vindica-
tion as uniquely American innovations for genuine social justice and human
development under law.
11
Delusion: How the History of the G.I. Bill and Other Inconvenient Truths Undermine the
Supreme Court’s Affirmative Action Jurisprudence, 75 U. P
ITT. L. REV. 583, 641 (2014)
(“[T]he Court simply assumes . . . the victimization of the plaintiffs in affirmative action
cases without any basis in evidence. . . . Claims of victimization are hard to swallow when
the plaintiffs in the education cases would not have been admitted in the absence of affirma-
tive action.”).
7
. Other scholars support our conclusion regarding the racist nature of the WOD. E.g.,
Mitchell F. Crusto, Weeding Out Injustice: Amnesty for Pot Offenders, 47 H
ASTINGS CONST.
L.Q. 367, 38081 (2020) (“Despite the fact that marijuana use was not always associated
with people of color, the criminalization of marijuana has been founded on racism and xeno-
phobia. As a result, one scholar has referred to the WOD as a ‘war on people of color,’ with
particular harm suffered by the Black community.”); Theresa Zhen & Vinuta Naik, A Clean
Slate Case Study of Community Lawyering, 106 C
ALIF. L. REV. 557, 559 (2018) (“Our first
clients taught us firsthand that the War on Drugs and its criminalization of a targeted group of
individuals was really a war on people of color, poor people, people with mental illness, and
homeless people—a lesson that would repeat itself in our work, time and time again.”). This
Article considers whether the racist roots and impact of the WOD comport with equal protec-
tion under law.
8
. Joseph E. Stiglitz, Foreword to TERRY-ANN CRAIGIE ET AL., BRENNAN CTR. FOR
JUST. AT N.Y.U., CONVICTION, IMPRISONMENT, AND LOST EARNINGS 45 (2020), available at
https://www.brennancenter.org/sites/default/files/2020-09/EconomicImpactReport_pdf.pdf
(“There is much that has to be done if our society is to fully come to terms with our long
history of racial injustice. Stopping mass incarceration is an easy place to begin. This report
makes a compelling case for the enormous economic benefits to be derived from doing so.”).
9. Pub. L. No. 91-513, 84 Stat. 1242 (1970) (codified at 21 U.S.C. §§ 881–966).
10
. The federal government currently incarcerates over 64,000 drug offenders which
constitutes 45 percent of all federal prisoners. Federal Bureau of Prisons, Statistics,
https://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp (last updated Mar. 19,
2022). Hispanics make up about 30 percent of all federal inmates, id.,
https://www.bop.gov/about/statistics/statistics_inmate_ethnicity.jsp (last updated Mar. 19,
2022), and African Americans make up 38 percent. Id.,
https://www.bop.gov/about/statistics/statistics_inmate_race.jsp (last updated Mar. 19, 2022).
11. Currently, respected international authorities rate the United States as weak on the
rule of law relative to other developed nations, largely due to the continuation of continued
racism in the so-called justice system. See W
ORLD JUSTICE PROJECT (WJP) RULE OF LAW
456 UA LITTLE ROCK LAW REVIEW [Vol. 44
Part I of this Article reviews and describes the racist roots of the War
on Drugs. Part II shows the fundamental racist reality of the WOD today
which continues to disproportionately impose devastating costs upon com-
munities of color. Part III reviews the history of equal protection under law
and argues that current equal protection under law should end the racist
WOD. Despite this reality, the Supreme Court will likely allow the race-
based oppression of the War on Drugs to continue indefinitely, based largely
upon the Court’s inability to see the mechanisms perpetuating America’s
racial hierarchy.
12
The Article concludes that the Supreme Court’s failure to authorize and
direct the use of the equal protection guarantee to end the nightmarish and
fundamentally racist War on Drugs exposes an institutionally racist branch
of our government.
13
Indeed, the Supreme Court acts with complicity in the
key role the WOD plays in replicating the American racial hierarchy every
day it fails to curtail the WOD with full knowledge of the wrong-headed and
backward criminal injustice system—as does every other actor in the crimi-
nal injustice system.
14
The racist reality of the WOD’s continuing indefinite-
ly suggests an enduring limitation on equal protection under law, a limita-
INDEX 2021, 171 (2021) (scoring U.S. criminal injustice system as plagued by discrimina-
tion).
12
. The American racial hierarchy manifests itself in the gaping disparities in social
well-being among the major American racial groups. See Steven A. Ramirez & Neil G. Wil-
liams, On the Permanence of Racial Injustice and the Possibility of Deracialization, 69 C
ASE
W. RES. L. REV. 299, 30724 (2018).
13. “Nor has it been unusual in our history for the Supreme Court to stand at the fore-
front of racial injustice. In fact, except for a short period in our nation’s history, 1954 to 1965
. . . the United States Supreme Court has promoted or facilitated injustice against African
Americans.” Lewis R. Katz, Whren at Twenty: Systemic Racial Bias and the Criminal Justice
System, 66 C
ASE W. RES. L. REV. 923, 92425 (2016) (citations omitted).
14
. Court knowledge of the racist nature of the War on Drugs must reach deep into
decades past. See, e.g., MICHAEL TONRY, MALIGN NEGLECT—RACE, CRIME, AND PUNISHMENT
IN
AMERICA 8183, 208 (1996) (Predictably, “[t]he entanglement of extraordinary numbers of
black American males in the justice system’s tentacles damages them, their children, and
their communities.”) (reviewed in Paul Reidinger, Separate but Unequal Lives, ABA J. (Dec.
1995), at 86); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal
Justice System, 105 Y
ALE L.J. 677, 679 (1995) (positing that the disparate treatment of Afri-
can Americans, including the mass incarceration of African Americans pursuant to the WOD,
creates a “moral responsibility of [B]lack jurors to emancipate some guilty [B]lack outlaws”);
Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American
Communities, 56 S
TAN. L. REV. 1271, 127273 (2004) (“The gap between black and white
incarceration rates . . . has deepened along with rising inmate numbers. . . . [T]he transfor-
mation of prison policy at the turn of the twenty-first century is most accurately characterized
as the mass incarceration of African Americans.”). The point at which knowing participation
(through at least tacit approval) in such historic oppression supports a finding of active com-
plicity passed long ago. Justice Thomas, at least, appears prepared to hold the federal prohibi-
tion relating to cannabis violative of the Constitution. See Standing Akimbo, LLC v. United
States, 141 S. Ct. 2236, 2238 (2021) (statement regarding petition for certiorari).
2022] RACIST ROOTS 457
tion based upon race, and the need to impose far more serious accountability
upon the Supreme Court to assure it remains tethered to current learning and
social reality.
15
I.
THE RACIST ROOTS OF THE WAR ON DRUGS
The War on Drugs, inaugurated by Richard Nixon,
16
militarized and
nationalized by Ronald Reagan,
17
and exacerbated by Bill Clinton,
18
has
proven to be an epic failure.
19
As early as 1996, author Dan Baum wrote that
15
. The very notion that equal protection itself favors wealthy whites over people of
color—notwithstanding its roots in the Civil War effort to free slaves—has gained increasing
awareness in recent years. See, e.g., Wendy Parker, Recognizing Discrimination: Lessons
from White Plaintiffs, 65 F
LA. L. REV. 1871, 1915 (2013) (“The Roberts Court’s commitment
to color-blind jurisprudence is stronger than any previous Court’s, including the Rehnquist
Court. It has defined white plaintiffs as victims of race discrimination when the process of
decision making treated them differently because of their race, apart from any other attending
substantive injury.”).
16
. See Courtney Harper Turkington, Louisiana’s Addiction to Mass Incarceration by
the Numbers, 63 L
OY. L. REV. 557, 560 (2017) (quoting presidential aid John Ehrlichman for
the proposition that Nixon focused on illicit drugs in order to attack blacks and the anti-war
left). The first federal prohibition of narcotics occurred in 1914 with the passage of the Harri-
son Act. David Borden, If Hard Drugs Were Legalized, Would More People Use Them?, 12
C
ARDOZO PUB. L. POL’Y & ETHICS J. 569, 578 (2014). From the beginning, the federal gov-
ernment’s response to the problems of drug abuse suffered from the taint of racism. J. Mat-
thew Gorga, “Retribution, Not a Solution’: Drug-Induced Homicide in North Carolina, 42
C
AMPBELL L. REV. 161, 166 (2020) (“The nation’s first drug laws were less about the dangers
of the drugs and more about the people associated with them.” In fact, “[t]hose advocating for
the Harrison Act’s passage perpetuated false and racially fueled narratives—black men under
the influence of drugs ‘murdering whites,’ ‘degenerate Mexicans smoking marijuana,’ and
‘“Chinamen” seducing white women.’”).
17
. See generally IBRAM X. KENDI, STAMPED FROM THE BEGINNING: THE DEFINITIVE
HISTORY OF RACIST IDEAS IN AMERICA 433–36 (paperback, 2017); Ibram X. Kendi, How
Ronald Reagan’s Drug War Fueled Americans’ Addiction to Racist Ideas,
RAW STORY (June
23, 2016), available at https://www.rawstory.com/2016/06/how-ronald-reagans-drug-war-
fueled-americans-addiction-to-racist-ideas/; Erik Luna, Drug War and Peace, 50 U.C.
DAVIS
L. REV. 813 (2016).
18
. See generally Paul Finkleman, The Second Casualty of War: Civil Liberties and the
War on Drugs, 66 S.
CAL. L. REV. 1389 (1992-1993); VICTOR THORN, HILLARY (AND BILL):
THE DRUGS VOLUME: PART TWO OF THE CLINTON TRILOGY (2008); Donna Murch, The Clin-
tons’ War on Drugs: When Black Lives Didn’t Matter, THE NEW REPUBLIC (Feb. 9, 2016),
https://newrepublic.com/article/129433/clintons-war-drugs-black-lives-didnt-matter.
19
. See George P. Shultz & Pedro Aspe, The Failed War on Drugs, N.Y. TIMES (Dec.
31, 2017), https://www.nytimes.com/2017/12/31/opinion/failed-war-on-drugs.html (“The war
on drugs in the United States has been a failure that has ruined lives, filled prisons and cost a
fortune.”); see also K
OFI ANNAN ET AL., REPORT OF THE GLOBAL COMMISSION ON DRUG
POLICY, WAR ON DRUGS 2 (2011), https://www.globalcommissionondrugs.org/wp-
content/uploads/2017/10/GCDP_WaronDrugs_EN.pdf (“The global war on drugs has failed,
with devastating consequences for individuals and societies around the world. Fifty years
after the initiation of the UN Single Convention on Narcotic Drugs, and 40 years after Presi-
458 UA LITTLE ROCK LAW REVIEW [Vol. 44
after more than 25 years of federal efforts involving the expenditure of hun-
dreds of billions of 1996 dollars, “nobody claims victory” and we remain
“devoted to a policy as expensive, ineffective, delusional, and destructive as
government gets.”
20
Baum also cataloged the racist impact of the WOD up
through 1996.
21
Today, a broad bipartisan consensus recognizes the failure
of the WOD.
22
The WOD failed to stem drug abuse. This failure continues today.
Drug overdose deaths in the United States more than tripled between 1999
and 2017 (when it hit a then-record high) before declining slightly in 2018.
23
Drug overdoses reached new record levels in 2020-21, exceeding 100,000
deaths for the first time.
24
Despite trillions spent to disrupt supply, Drug
Enforcement Agency (DEA) data shows that drug prices have declined and
quality has increased since 1986.
25
Further, since 2002 the use of illicit drugs
in the United States has increased.
26
On the other hand, in Portugal—which
dent Nixon launched the US government’s war on drugs, fundamental reforms in national
and global drug control policies are urgently needed.”); Jay Z et al., The War on Drugs is an
Epic Fail, N.Y.
TIMES (Sept. 15, 2016),
https://www.nytimes.com/video/opinion/100000004642370/jay-z-the-war-on-drugs-is-an-
epic-fail.html?action=click>ype=vhs&version=vhs-heading&module=vhs®ion=title-
area&cview=true&t=11 (“The War on Drugs is an Epic Fail.”).
20. DAN BAUM, SMOKE & MIRRORS: THE WAR ON DRUGS AND THE POLITICS OF FAILURE
vii (1996).
21
. Id. at 245–46 (noting that on the New Jersey Turnpike out of state African Ameri-
cans were disproportionately stopped and searched for drugs); Id. at 253 (“[E]ven in 1988, it
was clear that blacks were being disproportionately targeted for drug arrest.”); Id. at 257
(recounting the origins of the harsher crack cocaine sentencing provision relative to cocaine,
which is used far more widely by Whites); Id. at 323 (showing racial disparities in sentenc-
ing, arrests, and enforcement in numbers far exceeding involvement in illicit narcotics).
22. Gary S. Becker & Kevin M. Murphy, Have We Lost the War on Drugs?, WALL ST. J.
(Jan. 5, 2013), www.wsj.com/articles/sb10001424127887324374004578217682305605070
(“Decriminalization of all drugs by the U.S. would be a major positive step away from the
war on drugs.”).
23
. CTRS. FOR DISEASE CONTROL, NAT’L CTR. FOR HEALTH STAT., DRUG OVERDOSE
DEATHS IN THE UNITED STATES, 1999–2018 (Jan. 2020),
https://www.cdc.gov/nchs/products/databriefs/db356.htm.
24. Kaitlin Sullivan & Reynolds Lewis, ‘A Staggering Increase’: Yearly Overdose
Deaths Top 100,000 for First Time, NBC N
EWS (Nov. 17, 2021),
https://www.nbcnews.com/health/health-news/yearly-drug-overdose-deaths-top-100000-first-
time-rcna5656.
25. Talia Bronshtein, Interactive: Explore How Illegal Drugs Have Become Cheaper
and More Potent Over Time, STAT (Nov. 16, 2016),
https://www.statnews.com/2016/11/16/illegal-drugs-price-potency/.
26
. U.S. Dept. of Health & Human Services, Drug Facts (showing increase from 2002 to
2012 in the use of illicit drugs by Americans over age 12); National Institute on Drug Abuse,
National Survey of Drug Use and Health, https://www.drugabuse.gov/drug-topics/trends-
statistics/national-drug-early-warning-system-ndews/national-survey-drug-use-health (show-
ing increase in illicit drug use by those over 12 from 2016 to 2018).
2022] RACIST ROOTS 459
decriminalized all drugs in 2001—drug use did not increase and overdoses
declined when treatment instead of incarceration took hold.
27
The economic and human carnage that lies in the wake of this failed
“war” has been predictably and enormously costly.
28
Quantifying these costs
has proven difficult, although in previous work we have undertaken to at-
tempt to describe how badly the WOD has injured our nation, particularly
the communities of color who have suffered the most under this misguided
and racist campaign.
29
We concluded that the total direct and indirect costs
amounted to at least $450 billion per year.
30
Upon close inspection, evidence indicates that the War on Drugs was
never actually about stemming the use of drugs in the United States, nor
about stanching the flow of drugs into the country.
31
Rather, the WOD origi-
nated with the intent to criminalize communities of color and marginalize
the voting power of political enemies.
32
The WOD is, and always was,
27
. Caitlin Elizabeth Hughes & Alex Stevens, What Can We Learn from the Portuguese
Decriminalization of Illicit Drugs?, 50 B
RITISH J. OF CRIMINOLOGY 999, 1018 (2010) (“The
Portuguese evidence suggests that combining the removal of criminal penalties with the use
of alternative therapeutic responses to dependent drug users offers several advantages. It can
reduce the burden of drug law enforcement on the criminal justice system, while also reduc-
ing problematic drug use.”); Harvey Slade, Drug Decriminalization in Portugal: Setting the
Record Straight (May 13, 2021), https://transformdrugs.org/blog/drug-decriminalisation-in-
portugal-setting-the-record-straight (“Portugal has set a positive example for what can be
done when drug policies prioritise health rather than criminalisation. . . . Many impacts of
reform were felt immediately: new HIV infections, drug deaths and the prison population all
fell sharply within the first decade.”).
28. See generally PATRISSE KHAN-CULLORS & asha bandele, WHEN THEY CALL YOU A
TERRORIST: A BLACK LIVES MATTER MEMOIR (2017); PAUL BUTLER, CHOKEHOLD: POLICING
BLACK MEN 13334 (2017) (detailing the devastating impact the War on Drugs has had on
the black community writ large).
29. See generally cummings & Ramirez, supra note 3, at 48788.
30. Id. at 494 (“[E]nding the WOD would save . . . . [g]overnments . . . at least $150
billion per annum (consisting of lower expenditures and enhanced revenues) from the failed
WOD and associated mass incarceration into the communities most damaged by the WOD.
In addition, our economy will enjoy a long-term boost from reversing the destruction of hu-
man capital and productivity implicit in the annual loss of over $400 billion in earnings . . .
.”).
31. See B
AUM, supra note 20, at 78 (recounting the birth of the War on Drugs as a
Nixon campaign response to student and African American protesters and riots with well-
known links to narcotics in those communities). “Rather than argue with critics of either
racial discrimination or the Vietnam War, Nixon and the Republicans were learning to dis-
credit them directly.” Id. at 11.
32
. See Dan Baum, Legalize It All, HARPER’S (Apr. 2016),
https://harpers.org/archive/2016/04/legalize-it-all/ [hereinafter Legalize It All] (noting that 1
in 8 African American male voters has suffered disenfranchisement due to a felony convic-
tion).
460 UA LITTLE ROCK LAW REVIEW [Vol. 44
meant to be a war on black and brown Americans.
33
This explains why the
WOD persists despite its failures and the ready availability of superior alter-
natives while simultaneously imposing deep misery upon millions of Amer-
icans.
34
This is evident by quoting from the primary founders of the WOD,
namely President Richard Nixon and President Ronald Reagan and their
administrations. Paying close attention to their words and intentions at the
founding of this “war” shows clearly that from the beginning, the WOD was
meant to cripple the progress of black and brown Americans and pit portions
of a nation’s citizenry against their own compatriots.
35
The truth about the
WOD and its inception is pernicious and ugly.
36
First then, what follows are
the ugly words and pernicious actions of Richard Nixon and his advisors.
A. Richard Nixon’s “War” on Drugs
Richard Nixon declared “total war” on drug use, naming it “public en-
emy No. 1” in 1971.
37
Far from being the nation’s number one threat at that
time, drug use hardly registered as a national threat nor was it on the collec-
33
. DORIS MARIE PROVINE, UNEQUAL UNDER LAW: RACE IN THE WAR ON DRUGS 45, 12
(2007) [hereinafter U
NEQUAL UNDER LAW] (“Our history of embedded racism also helps to
explain the public’s otherwise surprising tolerance for failed policies, even in the face of the
tremendous human suffering associated with incarceration.”); see generally B
AUM, supra
note 20 (tracing the evolution of the War on Drugs as a war on black and brown American
communities).
34. See UNEQUAL UNDER LAW, supra note 33, at 12.
35. DAVID MUSTO, THE AMERICAN DISEASE: ORIGINS OF NARCOTIC CONTROL 294 (1999)
(“The most passionate support for legal prohibition of narcotics has been . . . fear of a given
drug’s effect on a specific minority.”).
36
. See Provine, supra note 4, at 43 (“The government’s war on recreational drugs did
not really get underway until 1930 when Harry Anslinger left his post in the Bureau of Prohi-
bition to become the first commissioner of the Federal Bureau of Narcotics. He used his
post—which he held for a remarkable 32 years—to argue that drug addicts were the most
serious criminals in the nation.”). Anslinger epitomized “the goal . . . to establish harsh crim-
inal sanctions for selected drugs. The most fruitful approach has been to link the drug with a
disliked racial minority. The specter of out-of-control behavior by the feared racial ‘other’
helps to make the case for strong criminal sanctions.” Id. at 42. See generally M
ICHELLE
ALEXANDER, THE NEW JIM CROW (paperback ed. 2012) (tracing the subordination of African
American citizens from slavery to Black Codes to Jim Crow through the New Jim Crow,
which she defines as Mass Incarceration); A
NGELA Y. DAVIS, ARE PRISONS OBSOLETE?
(2003) (describing the clear track of subordination from slavery through convict leasing and
lynching to massive populations of “racially oppressed communities” into America’s pris-
ons); S
HANE BAUER, AMERICAN PRISON: A REPORTER’S UNDERCOVER JOURNEY INTO THE
BUSINESS OF PUNISHMENT (2018) (detailing the massive increase in the Black American pris-
on population as connected with a profit incentive from convict leasing through current pri-
vate for-profit prison corporations).
37. See ‘Public Enemy No. 1’, N.Y. TIMES (Mar. 22, 1972),
https://www.nytimes.com/1972/03/22/archives/public-enemy-no-1.html.
2022] RACIST ROOTS 461
tive mind of U.S. citizens.
38
In fact, survey evidence proved that no drug
epidemic existed and that few high-school-aged students used narcotics of
any type.
39
Instead, Nixon and his allies were developing a straw man that
would enable him and his political party to neutralize large and powerful
voting blocks that had lined up solidly against him and his party, namely
black Americans and young people, including anti-Vietnam War protes-
tors.
40
John Ehrlichman, Nixon’s close advisor during the development of the
WOD, infamously stated in 1994:
The Nixon campaign in 1968, and the Nixon White House after that, had
two enemies: the antiwar left and black people. . . . We knew we
couldn’t make it illegal to be either against the war or black, but by get-
ting 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.
41
Ehrlichman essentially admitted twenty-five years after, that Nixon’s
“war” on drugs originated based on a racist lie and specifically targeted po-
litical enemies and African Americans.
42
Further, Ehrlichman’s admission
aligns with H.R. Haldeman’s diary entry reported years ago in a book that
chronicles Nixon’s political journey to the WOD.
43
According to senior aide
38
. See BAUM, supra note 20, at 21 (“Despite Nixon’s assertion [on the campaign trail]
that drugs were ‘decimating a generation of Americans,’ drugs were so tiny a public health
problem that they were statistically insignificant: far more Americans choked to death on
food or died falling down stairs as died from illegal drugs.”). Nixon also claimed during his
campaign that half of all crimes committed in New York were committed by addicts and that
while he supported civil rights, the first civil right is the safety of Americans from violence.
Id. at 12.
39. Id. at 2627.
40
. See generally TONRY, supra note 14; Kenneth B. Nunn, Race, Crime and the Pool of
Surplus Criminality: Or Why the ‘War on Drugs’ Was a ‘War on Blacks’, 6 J.
OF GENDER
RACE & JUST. 381, 39091 (2002) (“For the constituency the Reagan Administration was
trying to reach, it was easy to construct African Americans, Hispanics, and other people of
color as the enemy in the War on Drugs. These are the groups that the majority of white
Americans have always viewed as the sources of vice and crime.
Reagan’s anti-drug rhetoric
was skillfully designed to tap into deeply held cultural attitudes about people of color and
their links to drug use and other illicit behavior.”)
41. Legalize It All, supra note 32.
42. Id.; see also R
UDOLPH J. GERBER, LEGALIZING MARIJUANA 20 (2004) (“By 1970,
crime generally and drugs in particular were becoming code words in some conservative
groups for racial hostility . . . .”).
43
. Nixon did, in fact, lie to the nation about the drug problem. For example, in 1971
Nixon told Congress to increase funding for the WOD, in part because heroin addicts stole $2
462 UA LITTLE ROCK LAW REVIEW [Vol. 44
Haldeman, Nixon “emphasized that you have to face the fact that the whole
problem is really the blacks. The key is to devise a system that recognizes
this while not appearing to.”
44
The War on Drugs fit this bill.
The system that Nixon and his strategists devised, the WOD, proved to
be lethal and politically effective. Harry S. Dent, Nixon’s political advisor,
relentlessly distinguished between policies for “our” people, and policies for
“their” people.
45
‘“Their’ people were what the White House called ‘the
young, the poor, and the black.’”
46
That phrase reportedly ricocheted around
the White House and “off the tongues” of Nixon’s key advisors like one
word: “theyoungthepoorandtheblack.”
47
The Nixon WOD fit perfectly with
Dent’s approach: The War on Drugs would invariably harm people of color
(and other enemies) while exploiting among Nixon’s supporters evolving
social norms of racialized criminality against black Americans.
48
The Nixon Administration was tapping into a timeworn strategy—for
years drug use had been the vehicle individuals in power exploited to disen-
franchise people contesting that power. Associating drugs with African
Americans and people of color did not begin with Nixon.
49
In the 1930s, the
first commissioner of the Federal Bureau of Narcotics and a “founding fa-
ther” of the WOD, Harry Anslinger,
50
consistently used racial slurs and ste-
reotypes to encourage the public to link drugs to communities of color.
51
For
example, Anslinger stated that cannabis caused “white women to seek [sex-
ual] relations with Negroes . . .” and that reefer made African Americans
billion in property, even though all property stolen that year in the US totaled only $1.3 bil-
lion. B
AUM, supra note 20, at 58.
44. Id. at 12 (citing H.R. Haldeman’s diary).
45. See id. at 20.
46
. Id.
47. Id. at 21.
48. Id. at 2021.
49. In fact, the Johnson Administration specifically found that enforcement of drug laws
would fall disproportionately on the “poor and subcultural groups in the population.” B
AUM,
supra note 20, at 5.
50
. Colin Moynihan, An Exhibition Tells the Story of a Drug War Leader, but Not All of
It, N.Y.
TIMES (Aug. 10, 2020), https://www.nytimes.com/2020/08/10/arts/design/Anslinger-
drug-czar-exhibition.html (“Harry J. Anslinger’s pioneering work as head of the Federal
Bureau of Narcotics has largely been unsung, though experts see him as the founding father
of America’s war on drugs.”).
51
. For example, Anslinger used racial slurs in his communications to the President and
referred to “Oriental ruthlessness” with respect to the underworld of opiate drugs in his own
book. Id. “Johann Hari, a writer and critic of U.S. drug policy, described Mr. Anslinger in his
book ‘Chasing the Scream: The First and Last Days of the War on Drugs’ as someone who
depicted drugs as dangerous by associating them with racial minorities. He said in an email
message that his research indicated that Mr. Anslinger had adopted ‘a consistent framing that
drugs are something nonwhite people disproportionately use.’” Id.
2022] RACIST ROOTS 463
“think they’re as good as white men.”
52
Scholars attribute other insidious
quotes to Anslinger that amply demonstrate the role racism played at the
very beginning of the WOD: 1) “the primary reason to outlaw marijuana is
its effect on the degenerate races;” 2) “Negros, Hispanics, Filipinos, and
entertainers” constitute the main users of cannabis and “[t]heir Satanic mu-
sic, jazz, and swing, result from marijuana use;” and 3) “the major criminal
in the United States is the drug addict . . . .”
53
Ultimately, Anslinger’s Feder-
al Bureau of Narcotics provoked almost entirely the Marihuana Tax Act of
1937,
54
the nation’s first federal cannabis enforcement effort, untethered to
any scientific evidence or law enforcement necessity.
55
Similarly, Harrison Wright, appointed first Opium Commissioner dur-
ing the Theodore Roosevelt Administration, lobbied in favor of the Harrison
Narcotics Act and attributed opium use to increased sexual relations be-
tween white women and Chinese users.
56
Indeed, the first federal interven-
tion into narcotics markets (including opiates such as heroin) relied upon
racist rhetoric to drive both its public support and its movement into law.
57
“Racial minorities have always been the target of the harshest drug laws.”
58
Nixon understood from history that harsh narcotics laws could demon-
ize and disempower the growing minority vote.
59
Thus, the very root of Nix-
on claiming a war on drug abuse was to criminalize black Americans and
52
. Sarah Sloat, Nixon Advisor Admitted the Obvious: War on Drugs was a War on
Blacks and Hippies, I
NVERSE (Mar. 16, 2020), https://www.inverse.com/article/13153-nixon-
advisor-admitted-the-obvious-war-on-drugs-was-a-war-on-blacks-and-hippies; see Jessie
Daniels, Julie C. Netherland, and Alyssa Patricia Lyons, White Women, U.S. Popular Cul-
ture, and Narratives of Addiction, 45 CUNY J.
ACADEMIC WORKS 332 (2018).
53. Michelle H. Walton, Book Note, 11 ALB. GOV’T L. REV. 82, 89 (2017) (reviewing
ROBERT MIKOS, MARIJUANA LAW, POLICY, AND AUTHORITY (2017)).
54. Marihuana Tax Act of 1937, Pub. L. No. 75-238, 50 Stat. 551, invalidated by Leary
v. United States, 395 U.S. 6 (1969) (imposing tax on various marijuana-related transactions).
55
. RICHARD J. BONNIE & CHARLES A. WHITEHEAD II, THE MARIHUANA CONVICTION 127
(1977).
56. Provine, supra note 4, at 43.
57
. “The earliest U.S. drug laws were tied to racist stereotypes and to fears about the
negative habits of immigrants.” Michael L. Rosino & Matthew W. Hughey, The War on
Drugs, Racial Meanings, and Structural Racism: A Holistic and Reproductive Approach, 77
A
M. J. ECON. & SOC. 849, 850 (2018). Rosino & Hughey take an innovative, holistic ap-
proach to quantifying the role of race in the propagation of the WOD. Id. at 849. Specifically,
they review 30 years of media content (1983-2014) and find that “dominant racial meanings,
manifest in both racial identity and racial ideology, work as a symbolic resource that people
marshal to form a sense of self and rationalize or misconstrue structural racism” such as the
WOD. Id. at 881.
58. UNEQUAL UNDER LAW, supra note 33, at 3.
59. According to H.R. Haldeman’s diary, Nixon told Haldeman: “the whole problem is
really the blacks.” B
AUM, supra note 20, at 12.
464 UA LITTLE ROCK LAW REVIEW [Vol. 44
marginalize their growing political power.
60
He was following a racist strat-
egy that had begun at least as early as Wright’s and Anslinger’s drug leader-
ship in the early twentieth century.
61
Nixon’s animus meant that science
would not count when it came to the WOD.
More specifically, the Nixon Administration commissioned a study on
marijuana in the early 1970s, seeking scientific evidence to support the
WOD.
62
The National Commission on Marihuana and Drug Abuse ultimate-
ly issued a report entitled Marihuana: A Signal of Misunderstanding.
63
The
study concluded, however, that marijuana was not a “danger to public safe-
ty” and that it should not be criminalized.
64
Nixon ignored the study,
claimed that marijuana was a danger to the nation and spent millions of dol-
lars closing the border between Mexico and the United States to halt the
flow of marijuana.
65
These actions also directly support Ehrlichman’s and
Haldeman’s claim that the Nixon Administration knowingly lied and used
the WOD not to protect public health but as an instrument of racial animus
and exploitation.
Thereafter, the Nixon Administration hastily pushed the enactment of
the Controlled Substances Act in the wake of the Supreme Court’s invalida-
60. Id. When police found wealthy whites using drugs—such as during the cocaine
epidemic—they could be counted on to treat violators differently from, in the words of a
Chicago cop, “the dregs of society.” Id. at 143. This also marked enforcement of the Harrison
Act, which law enforcement used to control disempowered populations while “[r]espectable”
addicts escaped sanction. U
NEQUAL UNDER LAW, supra note 33, at 7879.
61
. BAUM, supra note 20, at 37, 2021 (recounting America’s exhaustion regarding
civil rights and citing candidate Nixon’s article in Reader’s Digest calling for harsher treat-
ment of criminals, which resonated with the general public as meaning the young, the black,
and the poor).
62. Id. at 71.
63. N
ATIONAL COMMISSION ON MARIHUANA AND DRUG ABUSE, MARIHUANA: A SIGNAL
OF
MISUNDERSTANDING (Mar. 1972), www.druglibrary.org/schaffer/library/studies/nc/ncm
enu.htm.
64
. Id. at 112 (“From what is now known about the effects of marihuana, its use at the
present level does not constitute a major threat to public health.”); see also Peat, Marwick,
Mitchell & Co., Marijuana: A Study of State Policies and Penalties, N
AT’L GOVERNOR’S
CONF. CTR. FOR POL’Y RSCH. AND ANALYSIS 78 (Nov. 1977). In 1972, 55,000 Americans
died in auto crashes, many attributable to drunk driving; another 33,000 died of alcohol poi-
soning or cirrhosis of the liver. No American ever died of cannabis ingestion. B
AUM, supra
note 20, at 72. Both the Ford Administration and the Carter Administration favored cannabis
decriminalization (or at least considering it) after careful study. Id. at 8687, 9295. The
Carter Administration also thought about comparing the costs of tobacco with the costs of
cannabis (tobacco costs exceeded cannabis by 250%) but this comparison wound up edited-
out. Id. at 97.
65. See Patrick Timmons, Trump’s Wall at Nixon’s Border, 49 NACLA REP. ON
AMERICAS 15, 15 (2017).
2022] RACIST ROOTS 465
tion of the Marihuana Tax Act,
66
and thereby projected the racist initiatives
of Harry Anslinger into contemporary America, along with Nixon’s animus
towards people of color and youth war protestors. Anslinger continued at the
top of the Bureau of Narcotics for over 30 years and continued spewing rac-
ist invective relating to narcotics into the post-war era, as shown above.
67
Animus indelibly marks the WOD.
In addition, the War on Drugs dovetailed with the “Southern Strate-
gy.”
68
Nixon’s “Southern Strategy” sought to attract “white southerners
away from the Democratic Party” through exploitation of “fear of black
power” and hostility toward “the civil rights movement.”
69
The Southern
Strategy successfully “transformed the GOP’s image” from the “country-
club” set to “defender of working[-class] whites.”
70
Nixon and his advisors
developed a GOP electoral strategy that still operates today.
71
Three GOP
Chairs ultimately admitted that their party pursued the Southern Strategy.
72
Fundamentally, the Southern Strategy and the WOD exploited civil rights
fatigue and took aim at Nixon’s enemies: African Americans and youth war
protesters.
73
The Southern Strategy sought to pit rural white Americans
against black and brown Americans politically by painting communities of
66. Marihuana Tax Act of 1937, Pub. L. No. 75-238, 50 Stat. 551, invalidated by Leary
v. United States, 395 U.S. 6 (1969) (imposing tax on various marijuana-related transactions).
67. Provine, supra note 4, at 81, 8490.
68
. See BAUM, supra note 20, at 2021. See also Angie Maxwell, What We Get Wrong
About the Southern Strategy, W
ASH. POST (July 26, 2019),
https://www.washingtonpost.com/outlook/2019/07/26/what-we-get-wrong-about-southern-
strategy/ (“Nixon’s team . . . coded their racial appeals. The ‘silent majority’ of white South-
erners that the candidate needed to attract understood that Nixon’s call for the restoration of
‘law and order,’ for example, was a dog whistle, signaling his support for an end to protests,
marches and boycotts, while his ‘war on drugs’ played on racialized fears about crime.”).
69. BAUM, supra note 20, at 20.
70. Id.
71
. See Jake Lahut, Trump Supporters are Increasingly Isolated in Their Denial of Sys-
tematic Racism, According to New Polling Data, B
USINESS INSIDER (Sept. 10, 2020),
https://www.businessinsider.com/pew-poll-trump-supporters-views-on-racism-2020-9
(“Trump has tried to court Black voters through the summer, but has repeatedly stated he
does not believe systemic racism exists, equating police officers who kill unarmed civilians
to golfers who ‘choke’ on the putting green.”); see also Harold Myerson, How Racist Are
Republicans? Very., T
HE AMERICAN PROSPECT (Oct. 22, 2020),
https://prospect.org/blogs/tap/how-racist-are-republicans-very/ (“Among Republicans, how-
ever, 49 percent believed it made the country better when all Americans spoke up and pro-
tested unfair governmental treatment, but just 24 percent believed it when Black Americans
spoke up and protested.”); see Candace Smith, Some White Trump Supporters Fear Becom-
ing a Minority, ABC
NEWS (Nov. 2, 2016), https://abcnews.go.com/Politics/white-trump-
supporters-fear-minority/story?id=43229203 (“Of Trump’s supporters, there are a vocal
number who worry about a country that no longer looks like the United States they say they
knew or envisioned.”).
72. STEVEN A. RAMIREZ, LAWLESS CAPITALISM 152 (2013).
73. See B
AUM, supra note 20, at 2021.
466 UA LITTLE ROCK LAW REVIEW [Vol. 44
color and anti-war protesters as criminals, drug-addicted, and receivers of
government largesse (i.e. welfare), all at the expense and exclusion of rural
whites.
While President Nixon declared his racist War on Drugs, despite scien-
tific evidence contravening his claims, it was Ronald Reagan who took the
racist torch and set fire to communities of color by federalizing, militarizing,
and internationalizing the drug war.
B. Ronald Reagan’s “War” on Drugs
Ronald Reagan gave a famous 1980 campaign kickoff speech at The
Neshoba County Fair in Philadelphia, Mississippi, near the site of the hei-
nous white supremacist murders of three civil rights workers in 1964.
74
Reagan used the occasion to trumpet his states’ rights plank—which sig-
naled his opposition to federally enforced civil rights.
75
Yet, Reagan ordered
all executive branch employees to submit to expanded drug testing
76
and
ultimately expanded the federal government’s reach into private lives to
employees of federal contractors.
77
President Reagan felt no compunction in
using expansive federal power in pursuit of mass incarceration and the
WOD, even though he opposed the use of federal power to protect the civil
rights of people of color.
Starting in 1982, Reagan accelerated Nixon’s WOD legacy by massive-
ly increasing funding for the eradication of drug use and concomitantly de-
creasing funding for education, drug abuse prevention, and drug rehabilita-
tion programs.
78
In general, Reagan cut government spending during this
74. See Bruce Bartlett, Reagan and Neshoba, HISTORY NEWS NETWORK (July 29, 2008),
https://historynewsnetwork.org/article/52854.
75. Matthew Yglesias, Reagan’s Race Record, T
HE ATLANTIC (Nov. 7, 2007),
https://www.theatlantic.com/politics/archive/2007/11/reagans-race-record/46875/ (noting that
Reagan opposed the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair
Housing Act).
76
. Exec. Order No. 12,564, 3 C.F.R. § 5 (1986 Comp.).
77. Drug-Free Workplace Act of 1988, Pub. L. No. 100-690, §§ 515160, 102 Stat.
4181, 430408.
78
. For example, “[o]n Jan. 28, 1982, President Reagan create[d] the South Florida Task
Force, a concentrated federal assault on the importation of cocaine by South American smug-
glers. Vice President Bush [wa]s designated to oversee the effort, which include[d] beefed-up
law enforcement and the deployment of Navy destroyers and other military assets to stop
drugs from entering the country.” Drug Wars Past and Present, W
ASH. POST,
https://www.washingtonpost.com/archive/politics/1989/09/05/drug-wars-past-and-
present/70f4f3f2-2727-41fe-a799-b85173879cdf/?utm_term=.065124167a4a (last visited
Dec. 29, 2021); see also Statement Announcing Establishment of a Federal Anti-Crime Task
Force for Southern Florida, Ronald Reagan Presidential Library & Museum (Jan. 28, 1982),
https://www.reaganlibrary.gov/archives/speech/statement-announcing-establishment-federal-
anti-crime-task-force-southern-florida.
2022] RACIST ROOTS 467
time but funding for the WOD soared across the government, particularly at
the FBI where spending went from $8 million to $95 million over a four-
year period.
79
President Reagan repeatedly signed harsh anti-narcotic legislation into
law
80
while at the same time dramatically cutting drug treatment programs.
81
Reagan presided over a massive spike in incarceration for non-violent drug
offenses where, between the early 1980s and the late 1990s, after Clinton
became President, the number of individuals jailed for those crimes “rose
from 50,000 to 400,000” Americans locked up..
82
The racist legacy of
Reagan’s incarceration campaign clarifies when those arrests are broken
down by ethnicity, where white Americans are more likely to use drugs than
black Americans, yet black American youth are arrested at 10 times the rate
of white American youth for drug-related offenses.
83
The NAACP reports
that black Americans represent 5% of the country’s total drug users, but
make up 33% of those incarcerated for a drug offense.
84
Not only did Reagan harshly criminalize drug use, but he also sunk the
racist roots of the drug war even deeper than Nixon had at inception. Presi-
dent Reagan’s campaign manager and future GOP Chair Lee Atwater stated
in 1981:
You start out in 1954 by saying “N[****]r, n[****]r, n[****]r.” By
1968 you can’t say “n[****]r”—that hurts you. Backfires. So you say
stuff like forced busing, states’ rights, and all that stuff. You’re getting
so abstract now[,] you’re talking about cutting taxes, and all these things
you’re talking about are totally economic things and a by-product of
them is . . . blacks get hurt worse than whites.
85
79. UNEQUAL UNDER LAW, supra note 33, at 103.
80. See, e.g., Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181; Drug-
Free Workplace Act of 1988, Pub. L. No. 100-690, §§ 5151–60, 102 Stat. 4181, 4304–08;
Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207; Comprehensive Crime
Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1976.
81
. BAUM, supra note 20, at 14445, 163.
82. See Ignacio Diaz Pascual, America’s War on Drugs – 50 Years Later, LEADERSHIP
CONF. ON CIV. AND HUM. RTS. (June 29, 2021), https://civilrights.org/blog/americas-war-on-
drugs-50-years-later/.
83. See Maia Szalavitz, Study: Whites More Likely to Abuse Drugs Than Blacks, T
IME
(Nov. 7, 2011), https://healthland.time.com/2011/11/07/study-whites-more-likely-to-abuse-
drugs-than-blacks/.
84
. See Criminal Justice Fact Sheet, NAACP (2020),
https://naacp.org/resources/criminal-justice-fact-sheet.
85. Leland Ware & David C. Wilson, Jim Crow on the “Down Low”: Subtle Racial
Appeals in Presidential Campaigns, 24 ST. JOHNS J.L. COMM. 299, 31113 (2009). The actual
audio for any doubters of the veracity of the quote is available on The Nation website. Rick
Perlstein, Exclusive: Lee Atwater’s Infamous 1981 Interview on the Southern Strategy, T
HE
468 UA LITTLE ROCK LAW REVIEW [Vol. 44
While Atwater admits the racial coding and dog whistling in which
Reagan was an expert,
86
the Reagan administration waged the drug war spe-
cifically in communities of color, turning those neighborhoods into veritable
war zones.
87
As one commentator states: “Most disastrously, Reagan took
Nixon’s nascent War on Drugs—an issue that experts agree should be treat-
ed as a public health crisis rather than a law enforcement crusade—and
turned it into an actual armed conflict. Reagan militarized the American
police force, which has used the War on Drugs as a pretext for terrorizing
communities of color.”
88
Reagan’s militarization and prioritization of the
WOD effectively “bastardized police departments across” the country.
89
When President Reagan prioritized drug enforcement in the 1980s as a
cornerstone of his domestic policy, his own advisors were astonished, as
was the entire country.
90
At that time, just 2% of the U.S. population thought
that drug use and abuse was among the nation’s “most pressing [national]
problem[s].”
91
Not surprisingly, local law enforcement nationwide did not
share Reagan’s drug prioritization aims, so Reagan adopted policies that
incentivized police departments to make drug enforcement a top priority by
promising federal funding, military-style weaponry and forfeiture laws as
rewards for reprioritizing.
92
Thus, Reagan’s answer to dubious and obstinate
local law enforcement agencies resisting prioritizing the WOD was “[h]uge
cash grants” turned out to be “massive bribe[s] offered to state and local law
NATION (Nov. 13, 2012), https://www.thenation.com/article/archive/exclusive-lee-atwaters-
infamous-1981-interview-southern-strategy/.
86
. See andré douglas pond cummings, Racial Coding and the Financial Market Crisis,
2011 U
TAH L. REV. 141, 217 (2011) (detailing Reagan’s use of the “welfare queen” as a
racially-coded trope targeting black mothers in urban America).
87. The militarization of the WOD became a signature program for the Reagan Admin-
istration. B
AUM, supra note 20, at 14950.
88. Joey Grihalva, Opinion: Ronald Reagan is a Symbol of Systematic Racism. It’s Time
to Rename our High School, M
ILWAUKEE NEIGHBORHOOD NEWS SERV. (July 16, 2020),
https://milwaukeenns.org/2020/07/16/opinion-ronald-reagan-is-a-symbol-of-systemic-racism-
its-time-to-rename-our-high-school/.
89
. cummings & Ramirez, supra note 3, at 480.
90. See KENDI, supra note 17, at 433.
91. K
ENDI, supra note 17, at 43334; MICHAEL K. BROWN, ET AL., WHITEWASHING
RACE: THE MYTH OF A COLOR-BLIND SOCIETY 13637 (2005) (describing how substance
abuse professionals were shocked to hear Reagan claim that the non-existent drug abuse
crisis could be tamped down by stronger police enforcement).
92
. See Emily Crick, Reagan’s Militarisation of the ‘War on Drugs’, GLOBAL DRUG
POLICY OBSERVATORY (2016), https://gdpo.swan.ac.uk/?p=440 (“US President Richard Nix-
on is often credited with launching the ‘War on Drugs’, but my research suggests that in fact
it was the Reagan administration, with support from Nancy Reagan, who really shaped and
militarised the ‘War on Drugs’ as we know it now. The Reagan era introduced and propagat-
ed across the world a virulently prohibitionist and highly militarised form of international
drug control.”); see also A
LEXANDER, supra note 36, at 7376; KENDI, supra note 17, at
43538; Luna, supra note 17, at 85764.
2022] RACIST ROOTS 469
enforcement by the federal government” to motivate nationwide warfare
against drugs.
93
“From this ensuing flood of federal largesse . . . paramilitary
weaponry began flowing freely into local police agencies effectively setting
military tanks, battering rams, flashbang grenades, helicopters, bazookas,
and assault weaponry loose upon poor and minority urban communities
across the country.”
94
Reagan effectually declared war on his own United
States citizens.
In declaring war upon his own people Reagan was characteristically
expressive, stating, “America’s liberty was purchased with the blood of he-
roes. Our release from the bondage of illegal drug use is being won at the
same dear price. . . . At our founding, we were promised the pursuit of hap-
piness, not the myth of endless ecstasy from a vial of white poison.”
95
Nancy
Reagan, the President’s wife, continued her husband’s demonstrative lan-
guage when she claimed “[i]f you’re a casual drug user, you are an accom-
plice to murder.”
96
Indeed, once Reagan convinced Los Angeles police chief Daryl Gates
to embrace his drug war and rhetoric, Gates “testified before Congress that
‘the casual [drug] user ought to be taken out and shot.’”
97
Gates continued
“[w]e’re in a war” and that drug use “is treason.”
98
President Reagan did not
relent in seeking to drive public attention to what had hitherto been fairly
insignificant drug use across the nation. Further, in 1986 Reagan claimed
that ”illegal drugs were every bit as much of a threat to the United States as
enemy planes and missiles.”
99
In September of that year, Reagan argued that
“[d]rugs are menacing our society. They’re threatening our values and un-
dercutting our institutions. They’re killing our children.”
100
Given longstanding revelations of serious drug abuse in the Reagan
family itself, these bombastic efforts at demonization represent more politi-
cal ploy than heartfelt concern for public health and the nation.
101
Sadly, like
93. ALEXANDER, supra note 36, at 72.
94
. cummings & Ramirez, supra note 3, at 481 (“For example, according to Nick Pas-
tore, a former Police Chief of New Haven, Connecticut, ‘I was offered tanks, bazookas, any-
thing I wanted.’”); see also A
LEX S. VITALE, THE END OF POLICING 1011 (2017);
A
LEXANDER, supra note 36, at 7480; andré douglas pond cummings, Reforming Police, 10
D
REXEL L. REV. 573, 62226 (2018); The War Comes Home: The Excessive Militarization of
American Policing, A
M. C.L. UNION (June 2014), https://www.aclu.org/report/war-comes-
home-excessive-militarization-american-police.
95. Luna, supra note 17, at 819.
96. Id. at 868.
97. Id.
98. Id. at 820.
99. Crick, supra note 92.
100. Id.
101
. Lisa Anderson, Meow, CHI. TRIB. (May 6, 1992),
https://www.chicagotribune.com/news/ct-xpm-1992-05-06-9202100192-story.html (recount-
470 UA LITTLE ROCK LAW REVIEW [Vol. 44
it had most other wealthy white households, drug abuse struck the Reagans:
Patti Davis admitted to serious and illegal use of controlled substances,
102
and she also wrote about Nancy Reagan’s drug dependency,
103
since corrob-
orated by recent sources.
104
This unfortunate tale of hypocrisy supports the
core thesis of this Article: the WOD never addressed public health problems
in a defensible manner (after all, drugs posed no sanction for “us”), instead
it intentionally sought the demonization, disempowerment, and destruction
of political enemies and people of color (“they” needed severe punishment),
just as senior political advisors to both Presidents Nixon and Reagan admit-
ted.
With such grandiloquent public provocations and astounding federal
cash and military weapon incentives, local police agencies began prioritiz-
ing the drug war with its violent trappings over community engagement and
policing as departments adopted “SWAT team takedowns of its own citizens
in their own communities often propelled by drug addled informants and
unreliable snitches.”
105
Thus, the WOD simply further sullied the already
racially-biased policing culture in the United States.
106
The rhetoric and
bombast worked. “In 1985, the proportion of Americans polled who saw
drug abuse as the nation’s ‘number one problem’ was just 2-6 percent. The
figure grew through the remainder of the 1980s until, in September 1989, it
reached a remarkable 64 percent—one of the most intense fixations by the
American public on any issue in polling history.”
107
Public opinion, media
attention, bluster, and misdirection led to a literal war being waged on the
urban streets of United States cities against black and brown Americans.
ing Patti Davis’s admissions that she took acid, cocaine, and used marijuana as well as her
allegation that Nancy Reagan was “regularly taking pills from a medicine chest stocked with
a changing arsenal of prescription tranquilizers and sleeping pills, such as Miltown, Seconal,
Librium, Valium, Quaaludes and Dalmane.”).
102
. PATTI DAVIS, THE WAY I SEE IT 121 (1992).
103. Id. at 123.
104. KAREN TUMULTY, THE TRIUMPH OF NANCY REAGAN 181 (2021) (stating that Patti
Davis used LSD and cocaine, and grew and sold marijuana.). Tumulty reports that Nancy
Reagan suffered serious drug dependency and possible drug addiction. Id. at 31921. Tu-
multy also reports that Nancy Reagan shared her prescription drugs with the President. Id.
105
. cummings & Ramirez, supra note 3, at 481; see VITALE, supra note 94, at 13440;
see also A
LEXANDER, supra note 36, at 7480.
106. cummings & Ramirez, supra note 3, at 481; see VITALE, supra note 94, at 13740;
see also A
LEXANDER, supra note 36, at 7476; cummings, Reforming Policing, supra note
94, at 62224.
107
. A History of the Drug War, DRUG POL’Y ALLIANCE,
https://drugpolicy.org/issues/brief-history-drug-war; see also Richard L. Berke, Poll Finds
Most in U.S. Back Bush Strategy on Drugs, N.Y.
TIMES (Sept. 12, 1989),
https://www.nytimes.com/1989/09/12/us/poll-finds-most-in-us-back-bush-strategy-on-
drugs.html; see also Just Say No, H
ISTORY.COM (May 31, 2017),
https://www.history.com/topics/1980s/just-say-no.
2022] RACIST ROOTS 471
The subtle truth is that, while framed as a war on drugs, President Reagan
and his advisors, each encumbered with deeply racist roots, were waging a
war on black communities.
Reagan, the actor/President, dog whistled his way through his entire
Presidency. While not explicitly naming African Americans in his many
sweeping anti-welfare or anti-social programs speeches, he was keen to talk
about “welfare queens” and “strapping young bucks,” both of whom were
intent on cheating the American welfare system.
108
The racial coding Reagan
employed explicitly meant to call to mind black women when he castigated
“welfare queens” and black men when he excoriated “strapping young
bucks.”
109
Reagan’s famed “welfare queen” was a Chicago woman who ac-
cording to Reagan had “80 names,” “30 addresses,” and a $150,000 annual
check from the public taxpayers, thereby inflaming “the hateful stereotype
of black, female welfare recipients as being either outright criminals or in-
dolent leeches reaping legal but undeserved riches.”
110
Reagan’s “strapping
young buck” used food stamps to “buy a T-Bone steak,” while Reagan’s
devotees “were waiting in line to buy hamburger.”
111
Reports indicate that
Reagan used the term “young buck” only when narrating about welfare
cheats in southern states, “abandoning the descriptor when stumping in
northern states” with fewer black citizens.
112
The dog-whistle employed by
Reagan was clear as the “young buck” and the “welfare queen” were both
meant to conjure Black Americans living in the ghetto.
The list of President Reagan’s under-reported racism is lengthy and
significant. Reagan vetoed sanctions against South Africa’s apartheid re-
gime. He opposed passage of both 1964’s Civil Rights Act and 1965’s Vot-
ing Rights Act, while openly defending housing segregation by arguing that
108
. IAN HANEY LÓPEZ, DOG WHISTLE POLITICS 4, 2427, 59 (2014). Dog whistle politics
transcends the WOD. See id. at ix (“In the last 50 years, dog whistle politics has driven broad
swaths of white voters to adopt a self-defeating hostility toward government, and in the pro-
cess has remade the very nature of race and racism. American politics today—and the crisis
of the middle class—simply cannot be understood without recognizing racism’s evolution
and the power of pernicious demagoguery.”). Even high-profile GOP leaders do not contest
the reality of dog whistle politics or the Southern Strategy. President Nixon, as well as at
least two of his senior aides, also essentially admitted to using racial anxiety and racial divi-
sions as a political tool. See supra notes 85–86 and accompanying text.
109. Gabrielle Bruney, How Ronald Reagan’s Racism Helped Pave the Way for Donald
Trump’s, E
SQUIRE (Nov. 22, 2020),
https://www.esquire.com/entertainment/tv/a34733508/reagans-showtime-racism-matt-
tyrnauer-ian-haney-lopez-donald-trump/; see also Ann Cammett, Deadbeat Dads and Wel-
fare Queens: How Metaphor Shapes Poverty Law, 34 B.C.
J.L. & SOC. JUST. 233 (2014).
110
. Bruney, supra note 109; see also HANEY LÓPEZ, supra note 108, at 4.
111. Bruney, supra note 109.
112. Id.; see also H
ANEY LÓPEZ, supra note 108, at 59.
472 UA LITTLE ROCK LAW REVIEW [Vol. 44
property owners were within their rights to “discriminate against Negroes,”
and originally opposed the creation of Martin Luther King Day.
113
Recently, newly publicized tapes revealed Reagan’s breathtaking rac-
ism when he served as Governor of California, expressed during a phone
call with then-President Nixon.
114
The tapes reveal that “[t]he day after the
United Nations voted to recognize the People’s Republic of China, then–
California Governor [ ] Reagan phoned President [ ] Nixon at the White
House and vented his frustration at the [international] delegates who had
sided against the United States.”
115
Reagan is recorded saying, “Last night, I
tell you, to watch that thing on television as I did . . . To see those, those
monkeys from those African countries—damn them, they’re still uncom-
fortable wearing shoes!”
116
Nixon is recorded as reacting to Reagan’s vulgar
racism with an enormous laugh.
117
President Reagan’s demonstrated racism, together with his deep com-
mitment to politicize drug use, was used to drive a WOD that played out
nearly singularly on the streets of black and brown Americans. According to
Professor Kenneth Nunn, “[i]n addition to shaping the methods used to ad-
dress the drug problem, the rhetoric of war also shaped the impact of those
methods, for a war requires not only military strategies, but an enemy as
well.”
118
For Reagan’s targeted constituency, it was easy to fashion “African
Americans, Hispanics, and other people of color as the enemy in the War on
Drugs.”
119
After all, these minority groups have always been viewed by the
“majority of white Americans” as primary “sources of vice and crime” in
the country.
120
”Reagan’s anti-drug rhetoric was skillfully designed to tap
into deeply held cultural attitudes about people of color and their links
to drug use and other illicit behavior.”
121
113
. Matthew Yglesias, Reagan’s Race Record, THE ATLANTIC (Nov. 9, 2007),
https://www.theatlantic.com/politics/archive/2007/11/reagans-race-record/46875/. See also
Andrew Glass, Reagan Establishes National Holiday for MLK, Nov. 2, 1983, P
OLITICO, Nov.
2, 2017, https://www.politico.com/story/2017/11/02/reagan-establishes-national-holiday-for-
mlk-nov-2-1983-244328 (detailing Reagan’s initial opposition to establishing a holiday for
Martin Luther King, Jr.).
114. See Tim Naftali, Ronald Reagan’s Long-Hidden Racist Conversation with Richard
Nixon, T
HE ATLANTIC (July 30, 2019), www.theatlantic.com/ideas/archive/2019/07/ronald-
reagans-racist-conversation-richard-nixon/595102/.
115. Id.
116. Id.
117. See id.
118. Nunn, supra note 40, at 390.
119. Id. at 390.
120. Id..
121. Id.. at 390–91.
2022] RACIST ROOTS 473
Reagan’s militarizing and racializing of the War on Drugs bore imme-
diate, strange fruit.
122
Local law enforcement began relying on military-style
methods and training to fight this “war.” “According to a 2014 report,
roughly eighty percent of SWAT deployments were for the purposes of exe-
cuting a search warrant—most frequently in drug investigations (62% of
SWAT raids)—while less than ten percent of deployments dealt with the
type of situations for which SWAT teams were created (e.g., hostage scenar-
ios).”
123
Further, “[i]n one-third (and possibly as much as two-thirds) of all
drug raids, SWAT teams found no contraband of any kind.”
124
Additional
statistics indicate that “[i]n cases in which the presence of weapons was cit-
ed as a justification for using SWAT, two-thirds of the time no weapons
were found” at all.
125
Additionally, in as many “as two-thirds of drug
searches, SWAT teams used battering rams or other” aggressive breaching
devices to gain entry into individual’s homes.
126
Similarly, “in a majority of
drug cases SWAT teams employed no-knock warrants, which dispense with
the Fourth Amendment requirements that officers announce their presence
and authority before (forcibly) entering a home.”
127
Of course, as detailed
above, in most of these “instances of forcible entry and no-knock warrants”
SWAT teams found either no drugs at all or inconsequential quantities of
drugs.
128
And these community SWAT team assaults were conducted in,
even targeted at, black urban communities.
129
By the late 1980s, the Reagan Administration set its sights on crack co-
caine. “Crack was perfectly suited for Reagan’s anti-drug campaign . . . be-
cause media attention ensured that no one would miss its connection with
the terrifying inner city and its reckless Black youth.”
130
After the death of
basketball player Len Bias in 1986, a media explosion (encouraged by the
government) took hold across America, which according to studies vilified
black offenders versus white offenders.
131
Predictably, expert analysis of the
122. Reagan and Nixon’s WOD can most realistically be viewed as a continuation of the
oppressive through line for black Americans leading from slavery, to convict leasing, to Jim
Crow, to lynching, to mass incarceration instrumentalized currently through the War on
Drugs. See generally Billie Holiday, Strange Fruit (Commodore Records, 1939) (“Southern
trees bear strange fruit; Blood on the leaves and blood at the root; Black bodies swinging in
the southern breeze; Strange fruit hanging from the poplar trees.”).
123
. Luna, supra note 17, at 862.
124. Id.
125. Id.
126. Id.
127. Id. at 862–63
128. Luna, supra note 17, at 863.
129. A
LEXANDER, supra note 36, at 56.
130
. UNEQUAL UNDER LAW, supra note 33, at 104.
131. Id. at 10508 (citing JIMMIE L. REEVES & RICHARD CAMPBELL, CRACKED COVERAGE:
TELEVISION NEWS, THE COCAINE CRUSADE AND THE REAGAN LEGACY 42 (1994)).
474 UA LITTLE ROCK LAW REVIEW [Vol. 44
Congressional Record found that racialized themes drove draconian legisla-
tion in the form of the Anti-Drug Abuse Act of 1986 and the Anti-Drug
Abuse Act of 1988.
132
These Acts created the infamous 100-1 ratio for sen-
tencing users of crack-cocaine (often people of color) versus users of pow-
der cocaine (often white).
133
President Reagan’s drug war devastated minority communities and ex-
ploded the U.S. prison population. His legacy will forever be saddled by the
destruction he visited upon black and brown men and communities. Regret-
tably, Reagan and Nixon were not alone in their wreckage. Bill and Hillary
Clinton intensified the War on Drugs when they took the nation’s helm in
the 1990s.
C. Bill Clinton’s “War” on Drugs
Democrats joined the War on Drugs fray when President Clinton, de-
termined not to appear soft on crime, signed the draconian Violent Crime
Control and Law Enforcement Act of 1994
134
which, among other things,
exploded the WOD, sent hundreds of thousands more black and brown men
to prison, and “even imposed the death penalty on those convicted of large-
scale drug distribution.”
135
One commentator notes that “[f]ar from resisting
the emergence of the new caste system that Ronald Reagan had codified into
law through the Anti-Drug Abuse Acts of 1986 and 1988, Clinton escalated
the drug war beyond what conservatives had imagined possible a decade
earlier.”
136
While candidate Bill Clinton strongly advocated drug treatment
instead of jail time “during his 1992 presidential campaign, after his first
few months in the White House he reverted to the drug war strategies of his
Republican predecessors by continuing to escalate the drug war.”
137
To begin, President Clinton famously rejected a U.S. Sentencing
Commission recommendation to jettison the infamous crack versus powder
cocaine sentencing disparity referenced above, enacted during the Reagan
Administration.
138
Clinton also rejected, at “the encouragement of [then-]
drug czar General Barry McCarey, Health Secretary Donna Shalala’s advice
132. Id. at 11117 (and authorities cited therein).
133. Id. at 115.
134. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108
Stat. 1796.
135. cummings & Ramirez, supra note 3, at 477; see also A
LEXANDER, supra note 36, at
56.
136. Murch, supra note 18 (internal quotations omitted).
137
. A History of the Drug War, DRUG POLICY ALLIANCE,
https://drugpolicy.org/issues/brief-history-drug-war; see also S. Joyce, Environmental Casu-
alties of the War on Drugs, 107 E
NV’T HEALTH PERSP. 74 (Feb. 1999).
138. See A History of the Drug War, supra note 137; see also David Yellen, The Sentenc-
ing Commission Takes on Crack, Again, 20 F
ED. SENT. R. 227 (2008).
2022] RACIST ROOTS 475
to end the federal ban on funding for syringe access programs.”
139
Thereaf-
ter, Clinton was responsible for making “60 new crimes eligible for the
death penalty and fellow Democrats bragged about their specific additions
to the list.”
140
Thus, “Bill Clinton and his allies embarked on a draconian
punishment campaign to outflank the Republicans[:] ‘I can be nicked a lot,
but no one can say that I’m soft on crime,’” Clinton boasted.
141
To that end, in 1994, President Clinton passed and signed the Violent
Crime Control and Law Enforcement Act.
142
At its base, this crime statute
was a “federal three strikes bill” that imposed life sentences on certain drug
offenders—including non-violent offenders.
143
The Act “established a $30.2
billion Crime Trust Fund to allocate monies for state and municipal police
and prison expansion.”
144
The law made it possible to prosecute 13-year-old
children as adults in some cases and included new funding to place 100,000
additional police onto the nation’s streets.
145
The law provided for a dra-
matic expansion of crimes eligible for the death penalty and included “gang
enhancements” for federal defendant sentencing.
146
The sweep of Clinton’s
crime bill was breathtaking in scope and its results were as racially and eco-
nomically destructive in communities of color as anything Reagan or Nixon
“accomplished.”
In support of the 1994 crime bill, Hillary Clinton famously dog whis-
tled that young black males were “super predators”
147
—forever tarnishing
her reputation as a civil rights proponent.
148
Hillary Clinton is on record stat-
139. A Brief History of the Drug War, supra note 107; see also Murch, supra note 18.
140. Murch, supra note 18.
141. Id.
142. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108
Stat. 1796 (codified in scattered sections of 16, 18, 20, 26, 31, 42 U.S.C.).
143. Murch, supra note 18; see also 18 U.S.C. § 3559(c)(1)(A)(i) (2012).
144. See Murch, supra note 18.
145. See id.
146. Id.
147
. See 13
TH
(Netflix 2016) (quoting Hillary Clinton describing young black males as
“super predators” while supporting passage of the 1994 crime bill as documented in Ava
Duvernay’s documentary film connecting the Thirteenth Amendment through to mass incar-
ceration); see also Anne Gearan & Abby Phillip, Clinton Regrets 1996 Remark on ‘Super-
Predators’ after Encounter with Activist, W
ASH. POST (Feb. 25, 2016),
https://www.washingtonpost.com/news/post-politics/wp/2016/02/25/clinton-heckled-by-
black-lives-matter-activist/ (Secretary Clinton is quoted as saying “Looking back, I shouldn’t
have used those words, and I wouldn’t use them today.”); Priyanka Boghani, They Were
Sentenced as “Superpredators.” Who Were They Really?, F
RONTLINE (May 2, 2017),
https://www.pbs.org/wgbh/frontline/article/they-were-sentenced-as-superpredators-who-
were-they-really/ (noting that the super predator stereotype led to more youths getting sen-
tenced to life without parole and that youths of color suffered disproportionately).
148. See generally STANLEY B. GREENBERG, MIDDLE CLASS DREAMS: THE POLITICS AND
POWER OF THE NEW AMERICAN MAJORITY (rev. ed. 1996) (describing the Clinton Presidency,
476 UA LITTLE ROCK LAW REVIEW [Vol. 44
ing: “Just as in a previous generation, we had an organized effort against the
mob. We need to take these people on. They are often connected to big drug
cartels; they are not just gangs of kids anymore. They are often the kinds of
kids that are called super predators. No conscience, no empathy. We can
talk about why they ended up that way, but first we have to bring them to
heel.”
149
Thus, Hillary “stood resolutely behind her husband’s punishment
campaign,” stating in 1994, “[w]e need more police, we need more and
tougher prison sentences for repeat offenders.”
150
She continued, “The ‘three
strikes and you’re out’ for violent offenders has to be part of the plan. We
need more prisons to keep violent offenders for as long as it takes to keep
them off the streets.”
151
Hillary concluded, “We will finally be able to say,
loudly and clearly, that for repeat, violent, criminal offenders: three strikes
and you’re out.”
152
Thus, President Clinton and Hillary firmly placed the
War on Drugs on steroids, further crushing communities of color.
In sum, during the Reagan and Clinton presidential administrations in
the 1980s and 1990s, new “[l]egislation was passed to impose mandatory
minimums, deny public housing to entire families if any member was even
suspected of a drug crime, expand federal death penalty-eligible crimes, and
impose draconian restrictions of parole.”
153
“Ultimately, multiple genera-
tions of America’s most vulnerable populations, including drug users, Afri-
can Americans, [Latinx populations], and the [indigent]” found themselves
bushwhacked as they were “confined to long-term prison sentences and life-
long social and economic marginality,” all in the name of drugs, despite
rampant drug use among white populations.
154
In truth, state and federal
prisons locked up “more people under Clinton’s watch than under any pre-
vious administration,” including Reagan’s incarceration rampage.
155
“During
[Clinton’s] two terms, the inmate population grew from roughly 1.3 million
to 2 million, and the number of executions to 98 by 1999.”
156
including Hillary’s role, and both Bill and Hillary fashioning themselves as Civil Rights
champions).
149
. Reuters Staff, Fact Check: Hillary Clinton, Not Joe Biden, Used the Term Super
Predator in 1990’s, REUTERS (Oct. 26, 2020) (emphasis added),
https://www.reuters.com/article/uk-factcheck-hillary-clinton-biden-super/fact-checkhillary-
clinton-not-joe-biden-used-thetermsuperpredatorin1990s-idUSKBN27B1PQ; see also Bidish
J. Sarma & Sophie Cull, The Emerging Eighth Amendment Consensus Against Life Without
Parole Sentences for Nonviolent Offenses, 66 C
ASE W. RES. L. REV. 525, 541 (2015-2016).
150. Murch, supra note 18.
151. Id.
152. Id.
153. Id.
154. Id.
155. Id.
156
. Murch, supra note 18 (“Significantly, the Democratic president even refused to
support the Congressional Black Caucus’s proposed Racial Justice Act, which would have
prevented discriminatory application of the death penalty.”); see also Justice Policy Institute,
2022] RACIST ROOTS 477
Despite the Clintons’ record of “racialized punishment for political
gain, [their] peculiar ability to reinvent themselves has erased memory of
many of their past misdeeds.”
157
Both however, have expressed regret for the
role they played in supercharging the WOD and shattering black and brown
communities. A month before leaving office, President Clinton claimed,
“‘we really need a re-examination of our entire policy on imprisonment’ of
people who use drugs, and said that marijuana use ‘should be decriminal-
ized.’”
158
Hillary Clinton, when running for President in 2016, was confront-
ed by Black Lives Matter activists at a campaign stop for her use of the term
“super predators” and her role in exacerbating the War on Drugs, to which
she replied, “Looking back, I shouldn’t have used those words, and I
wouldn’t use them today.”
159
In the face of this regret, criminologist and University of Minnesota
law professor Michael Tonry penned a book entitled Malign Neglect: Race,
Crime and Punishment in America, wherein Tonry argues that the architects
of the War on Drugs, namely Presidents Nixon, Reagan and Clinton knew
that the War on Drugs was unnecessary, and that the ineffective policies
proposed and enacted would adversely impact African American males and
communities of color.
160
Nixon, Reagan and Clinton will forever be coupled
and bonded to the racist timeline that has beset black Americans from slav-
ery to convict leasing, to Jim Crow, to the era of mass incarceration fueled
by the WOD—a deliberate and systematic obliteration of the human and
civil rights of black citizens.
Of course, such deliberate and systematic discrimination ought to run
afoul of the equal protection guarantee of the United States Constitution.
161
Too Little Too Late: President Clinton’s Prison Legacy, CTR. ON JUVENILE AND CRIM. JUST.
(Feb. 2001), https://justicepolicy.org/wpcontent/uploads/justicepolicy/documents/
too_little_too_late.pdf.
157
. Murch, supra note 18; see also Justice Policy Institute, supra note 156, at 2 (“Now,
eight years later, the latest criminal justice statistics show that it was actually Democratic
President Bill Clinton who implemented arguably the most punitive platform on crime in the
last two decades. In fact, ‘tough on crime’ policies passed during the Clinton Administra-
tion’s tenure resulted in the largest increases in federal and state prison inmates of any presi-
dent in American history.”).
158. A History of the Drug War, supra note 105.
159. Gearan & Phillip, supra note 147.
160. See Nunn, supra note 40, at 409.
161
. See U.S. CONST. amend. XIV, § 1 (“All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall abridge the privileg-
es or immunities of citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any person within its juris-
diction the equal protection of the laws.”); See also U.S. C
ONST. amend. V (“No person shall
be held to answer for a capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Mili-
478 UA LITTLE ROCK LAW REVIEW [Vol. 44
The next Section will show that today the War on Drugs continues its gross-
ly disproportionate impact upon communities of color.
II. T
HE RACIST ROOTS OF THE WAR ON DRUGS MANIFESTS TODAY
The Sentencing Project summed up the carceral state of the United
States in a report to the United Nations in 2018:
The United States criminal justice system is the largest in the world. At
yearend 2015, over 6.7 million individuals were under some form of cor-
rectional control in the United States, including 2.2 million incarcerated
in federal, state, or local prisons and jails. The U.S. is a world leader in
its rate of incarceration, dwarfing the rate of nearly every other nation.
162
Moreover, “African-American adults are 5.9 times [more] likely to be
incarcerated than whites and Hispanics are 3.1 times [more] likely.”
163
One key cause of these disparities is the WOD and the concentration of
policing in communities of color accompanying it.
164
Given that the U.S.
government’s own data show that whites use drugs at rates that generally
exceed those of people of color, these rates simply show a criminal injustice
system that has fulfilled the expectations of the architects of the WOD with
breathtaking efficacy.
165
In fact, new analysis of government data demon-
strates that overwhelmingly the people of color ensnared in the WOD con-
sist not of dealers but small-time users.
166
We as a nation insist on continu-
tia, when in actual service in time of War or public danger; nor shall any person be subject
for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public use, without just
compensation.”).
162
. THE SENTENCING PROJECT, REPORT OF THE SENTENCING PROJECT TO THE UNITED
NATIONS SPECIAL RAPPORTEUR ON CONTEMPORARY FORMS OF RACISM, RACIAL
DISCRIMINATION, XENOPHOBIA, AND RELATED INTOLERANCE 1 (2018).
163. Id. at 1.
164
. Id. at 15. The Sentencing Project came to essentially the same conclusion with
respect to the state level.
THE SENTENCING PROJECT, THE COLOR OF JUSTICE: RACIAL AND
ETHNIC DISPARITY IN STATE PRISONS 6 (2021) (“Black Americans are incarcerated at 4.8
times the rate of white Americans. Nationally, Latinx individuals are held in state prisons at a
rate of 349 per 100,000 residents, producing a disparity ratio of 1.3 to 1 when compared with
white non-Latinx Americans.”). The main driver: criminalization of low-level drug offenses.
Id. at 5.
165. See supra Introduction and Part I.
166. Based upon the most comprehensive and recent government data available:
[A]bout 40% of drug arrests are for possessing or selling a quarter of a gram or
less, and about 20% of arrests for possession or sale are between one-quarter of a
gram and one gram. The arrests for various quantities above one gram range over
the single digits with arrests for a kilogram or more being less than one percent.
2022] RACIST ROOTS 479
ing the destruction of communities of color for penny-ante crimes that even
our leaders and their families commit with impunity, in a way that can only
amount to animus against those communities.
167
Indeed, every phase of our criminal injustice system plays a complicit
role in producing its oppressive outcome, from the police officers who pull
over vehicles with burned out tail lights to the Supreme Court of the United
States. As Professor David Cole stated in 1999:
These double standards are not, of course, explicit; on the face of it, the
criminal law is color-blind and class-blind. But in a sense, this only
makes the problem worse. The rhetoric of the criminal justice system
sends the message that our society carefully protects everyone’s constitu-
tional rights, but in practice the rules assure that law enforcement pre-
rogatives will generally prevail over the rights of minorities and the
poor. By affording criminal suspects substantial constitutional protec-
tions in theory, the Supreme Court validates the results of the criminal
justice system as fair. That formal fairness obscures the systemic con-
cerns that ought to be raised by the fact that the prison population is
overwhelmingly poor and disproportionately black.
168
Cole’s observation aptly describes the state of the system in 1999; over
two decades later its perpetuation with full knowledge of its racist impact
amounts to knowing intent on the part of all key actors that allow the Amer-
ican oppression machine to ramble on.
With a faint glimmer of hope, politicians, pundits, and voters seem to
recognize now that the War on Drugs is a failure. This “war” looks to be in
the beginning stages of dismantlement. Despite the legalization of marijuana
We do not seem to be using minnows to catch big fish. Instead, we are catching
mainly minnows, occasionally slightly larger fish, and only very rarely a big fish.
Furthermore, . . . [t]he racial distribution of these small quantity arrests drives
massive racial disparities in the war on drugs. Our data confirms that Blacks are
disproportionately arrested for crack cocaine offenses and Whites for
meth/amphetamine and heroin offenses. What has not been demonstrated until
now, however, is that these racial disparities are not the result of greater in-
volvement in the selling and distribution of drugs by Blacks and Hispanics.
There are just as many minnows among Blacks as among Whites; we are just ar-
resting a lot more of the Black minnows.
Joseph E. Kennedy et al., Sharks and Minnows in the War on Drugs: A Study of Quantity,
Race and Drug Type in Drug Arrests, 52 U.C.
DAVIS L. REV. 729, 73233 (2018).
167. See id. at 784 (“Exactly how and why we have spent billions of dollars prosecuting
drug crime and incarcerated hundreds of thousands of offenders for millions of hours without
keeping more careful track of whom we were arresting and for what quantity is a question
that may someday puzzle future, more enlightened, generations.”).
168. D
AVID COLE, NO EQUAL JUSTICE: RACE AND CLASS IN THE AMERICAN CRIMINAL
JUSTICE SYSTEM 89 (1999).
480 UA LITTLE ROCK LAW REVIEW [Vol. 44
in some states across the nation (as of this writing, seventeen states have
legalized marijuana), if the enduring theme of the WOD was its racist roots
and evisceration of communities of color, then particular attention must be
paid to whether the dismantlement of the drug war will be applied equally to
all populations. At this moment, the future is not clear as to what impact the
new marijuana legalization measures will hold for urban communities and
people of color, “who have long been disproportionately targeted in the war
on drugs.”
169
Early evidence is troubling.
In states that have enacted relaxed drug laws, racial disparities in en-
forcement have not disappeared. A 2020 ACLU report found that “Black
people are still more likely to be arrested for marijuana possession than
white people in every state, including those that have legalized marijua-
na.”
170
Thus, “[b]eing caught with large amounts of marijuana, selling it,
using it in a school zone or underage use is still illegal in states that have
legalized,” and for those arrested for these crimes, the racial disparities re-
main astonishing, with black Americans being arrested at rates that far sur-
pass white Americans.
171
“In states like Maine and Vermont, according to
the ACLU, racial disparities in weed arrests worsened after legalization
passed.”
172
As has been noted often, even if these arrests do not lead to serv-
ing long sentences for simple drug possession, the negative “impact of an
arrest or a criminal conviction can follow [individuals] for years . . . . And
for repeat offenders, a drug conviction can mean a longer sentence for any
future offense.”
173
Further troubling early evidence indicates that in South Dakota, which
recently legalized marijuana, arrests for possession and distribution “have
increased significantly since 2007, and the racial disparities for Indigenous
people are especially stark.”
174
American Indians are ten percent of the
South Dakota population but constituted “nearly 20 percent of marijuana
possession arrests in 2018,” and in 2020 comprised nearly 33 percent of the
state prison population.
175
Further, “[m]any states prohibit people with felo-
169
. Wilbert L. Cooper & Christie Thompson, Will Drug Legalization Leave Black Peo-
ple Behind?, T
HE MARSHALL PROJECT (Nov. 11, 2020),
https://www.themarshallproject.org/2020/11/11/will-drug-legalization-leave-black-people-
behind.
170. A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform,
ACLU (Apr. 2020), https://www.aclu.org/report/tale-two-countries-racially-targeted-arrests-
era-marijuana-reform.
171. Cooper & Thompson, supra note 169.
172. Id.
173. Id.
174. Id.
175. Id.
2022] RACIST ROOTS 481
ny convictions from working for or owning dispensaries—convictions that
are disproportionately saddled on people of color.”
176
Chicago appears to be off to an even more dispiriting start in this new
era of legal marijuana. “Three times the number of African Americans were
arrested for marijuana-related offenses in Chicago than other ethnicities
combined in 2020.”
177
Chicago presents a distressing double standard: “At
the same time the state’s legal weed industry is making millions and white
smokers are enjoying the boutique experience with designer weed in clean,
fashionable North Side dispensaries, Black and brown people are left out of
the windfall and continue to be arrested for selling weed illegally.”
178
Addi-
tionally, in March of 2021, “Illinois set a record with $109 million in sales
of recreational marijuana, a 35% increase from the previous month,” yet
Chicago “has no minority-owned dispensaries, and felons are barred from
working within the industry.”
179
New York City fares no better than Chicago or South Dakota when it
comes to racially discriminatory marijuana arrests in a newly legal con-
struct. According to a recent analysis by New York’s Legal Aid Society,
“93% of those arrested for marijuana in NYC last year [2020] were Black or
Hispanic.”
180
Disturbingly, “[w]hite people—who make up 45% of the city’s
population, and have been shown to use marijuana at equal rates as other
racial groups—accounted for less than 5% of citywide arrests.”
181
And, even
as arrests for marijuana have decreased in New York City, “police have in-
creasingly turned to marijuana summonses, while maintaining an almost
identical focus on” African American and Latinx New Yorkers.
182
“Data
shows that 10,374 people received a criminal court summons for marijuana
last year—of which more than 93 percent were Black or Hispanic.”
183
Additional demoralizing evidence comes from Colorado. Black and
Latinx adolescents in Colorado are being arrested for marijuana offenses at
more disproportionate rates than before the state formally legalized recrea-
176
. Id.
177. William Lee, Legal Weed’s First Year in Chicago: High Arrest Rates for Black
People, a Boutique Experience for Others, C
HICAGO TRIBUNE (Apr. 15, 2021),
https://www.chicagotribune.com/news/breaking/ct-marijuana-legalization-parallel-worlds-
20210415-4hydfuinvje27mtctklm7dq4r4-story.html.
178. Id.
179. Id.
180
. Jake Offenhartz, NYPD’s Enforcement of Marijuana Laws Still Plagued by Extreme
Racial Disparities, G
OTHAMIST (Mar. 10, 2021), https://gothamist.com/news/nypds-
enforcement-marijuana-laws-still-plagued-extreme-racial-disparities.
181. Id.
182. Id.
183. Id.
482 UA LITTLE ROCK LAW REVIEW [Vol. 44
tional use.
184
A Colorado Public Safety report, released in March 2021,
found a stunning racial disparity “in how adolescents aged 10–17 are being
arrested: White juvenile marijuana arrests decreased by 8% between 2012
and 2014, while black juvenile arrests increased by 58% and Latino juvenile
arrests increased 29%.”
185
Colorado officials also found “that while marijua-
na arrests among adults have nearly been cut in half since legalization, the
racial disparities among those still being arrested grew slightly worse.”
186
In
2014, following legalization, black Coloradans “were arrested and cited for
marijuana-related offenses at almost triple the rate of white people. Back in
2012, black people in Colorado were being arrested for pot crimes at a little
less than double the rate of whites.”
187
As evidenced above, the racist roots of the WOD continues to manifest
itself today in the disparate impact the WOD inflicts upon communities of
color, despite the successes of recent legalization and decriminalization of
marijuana. With this continuing manifestation, a simple inquiry emerges:
Does the pernicious discriminatory application of the War on Drugs, as cata-
logued above, violate the Equal Protection Clause of the United States Con-
stitution?
III. T
AKING EQUAL PROTECTION SERIOUSLY?
Notions of constitutional equal protection under law ought to disrupt
the War on Drugs which rests upon a foundation of racial and out-group
animus.
188
As demonstrated above, mass incarceration of people of color
plays the lead role in the failed WOD—incarceration of people of color for
the same conduct that wealthy empowered whites routinely pursue with im-
punity.
189
The government’s laws and policies underlying the WOD accom-
plish the deeply disparate impact intended by its key progenitors with no
184
. See Amanda Chicago Lewis, Marijuana Arrests Down in Colorado for White Teens,
Up for Black and Latino Teens, B
UZZFEED NEWS (May 10, 2016),
https://www.buzzfeednews.com/article/amandachicagolewis/marijuana-arrests-down-in-
colorado-for-white-teens-up-for-bl; see generally Marijuana Legalization in Colorado: Early
Findings, CO
DEP’T OF PUB. SAFETY (Mar. 2016),
https://www.documentcloud.org/documents/2829054-2016-SB13-283-Rpt-Colorado-Early-
Findings-in.html.
185. Marijuana Legalization in Colorado, supra note 184, at 8; Lewis, supra note 184.
186. Lewis, supra note 184; see Marijuana Legalization in Colorado, supra note 184, at
2021.
187. Lewis, supra note 184.
188
. See WILLIAM D. ARAIZA, ANIMUS: A SHORT INTRODUCTION TO BIAS IN THE LAW 7
(2017) (“[S]ubjective dislike of a group lies at the core of legislation we can legitimately
condemn as based in animus.”).
189. Supra Parts I & II. See id. at 87112 (discussing “constructed intent” and the subjec-
tive dislike that underlies animus claims and concluding that if a law is based upon animus its
“game over” and no further showing is needed).
2022] RACIST ROOTS 483
public health justification at all—and the continuing carnage in communities
of color points to animus as the sole basis for the entire WOD.
190
The WOD
literally drives the replication of the American racial hierarchy through mass
incarceration, disenfranchisement, and post-prison encumbrances.
191
The sole viable reason for the continuation of the WOD in recent years
and beyond amounts to racial and political animus.
192
Simply stated, the
brutal disparate impact marking the War on Drugs continues because of the
disparate impact of the WOD as envisioned and implemented by its original
propagators—particularly Presidents Nixon and Reagan.
193
In terms of the
oppression suffered in communities of color from the racial animus driving
the WOD, the mass incarceration of people of color devastates those com-
munities more today than ever before, as our population shifts and ever
more people of color suffer the sting of the fundamentally racist WOD.
194
The Supreme Court of the United States plays a central role in giving legal
effect to this manifest racial animus.
195
190
. See id. at 151 (“[A]nimus doctrine’s underlying concern [is] ensuring that govern-
ment decision making is motivated by legitimate, public-regarding goals.”).
191
. See Dale Carpenter, Windsor Products: Equal Protection from Animus, 2013 SUP.
CT. REV. 183, 245 (“Animus is a desire to disparage and to injure a person or group of peo-
ple.”); see Susannah W. Pollvogt, Unconstitutional Animus, 81 F
ORDHAM L. REV. 887, 926
(2012) (“[A]nimus is present where the public laws are harnessed to create and enforce dis-
tinctions between social groups—that is, groups of persons identified by status rather than
conduct.”).
192. E.g., PROVINE, supra note 33, at 35. “Racial minorities have always been the target
of the harshest drug laws. Those who have actively promoted these laws, the moral entrepre-
neurs of drug legislation, have relied on racial slurs and allusions to bolster their arguments
for criminal controls.” Id. at 3.
193
. The federally-sponsored and federally-directed WOD also impinges upon the tradi-
tional police powers of the state, which suggests the use of power for the sake of animus
instead of sound public policy. See, e.g., Standing Akimbo, LLC v. United States, 141 S. Ct.
2236, 223637 (2021) (statement of Thomas, J., regarding denial of cert.); see United States
v. Windsor, 570 U.S. 744, 770 (2013) (“In determining whether a law is motivated by an
improper animus or purpose, ‘[d]iscriminations of an unusual character’ especially require
careful consideration.” (quoting Romer v. Evans, 517 U.S. 620, 633 (1996)).).
194
. Since 2010, the white population of the United States has decreased by 8.6 percent,
the only group contracting in size. Meanwhile, the multiracial population has increased by
276 percent. African Americans (including those identifying as multiracial African Ameri-
cans) now constitute 14.2 percent of the population, Latinos of all races constitute 18.7 per-
cent, and Native Americans 1.1 percent. Nicholas Jones et al., 2020 Census Illuminates Ra-
cial and Ethnic Composition of the Country, U.S.
CENSUS BUREAU (Aug. 12, 2021),
https://www.census.gov/library/stories/2021/08/improved-race-ethnicity-measures-reveal-
united-states-population-much-more-multiracial.html. Thus, our criminal racial hierarchy
ensnares more than one in three Americans today and will ensnare even higher proportions in
the future.
195. E.g., Standing Akimbo, 141 S. Ct. at 2236 (denying cert. for challenge to federal tax
law regarding substance prohibited under Controlled Substances Act); Gonzales v. Raich,
545 U.S. 1, 24–33 (2005) (holding Congress may regulate cannabis under Controlled Sub-
484 UA LITTLE ROCK LAW REVIEW [Vol. 44
The Court’s opinion in Department of Homeland Security v. Regents of
the University of California
196
illustrates the difficulty facing plaintiffs
claiming racial discrimination arising from government action animated by
animus, in this case the rescission of the Deferred Action of Childhood Ar-
rivals program (DACA).
197
Chief Justice Roberts found that the animus
President Trump displayed toward Mexican immigrants on the campaign
trail and thereafter could not support a violation of equal protection.
198
Jus-
tice Roberts found that Trump’s comments were “remote in time and made
in unrelated contexts.”
199
He also suggested that the relevant actors did not
include President Trump but rather government officials.
200
Thus, the Chief
Justice permitted the Trump Administration to impose a regulatory action
with disparate impact upon a group whom the President publicly vilified
repeatedly without violating the Constitution.
201
The Chief Justice denied
that the rescission of DACA entailed any disparate impact upon the Mexi-
can-American community “because Latinos make up a large share of the
unauthorized alien population [and] one would expect them to make up an
outsized share of recipients of any cross-cutting immigration relief pro-
gram.”
202
Justice Sotomayor’s dissent took the plurality opinion to task on its ju-
dicial fact-finding.
203
For example, she countered the Chief Justice by stat-
stances Act pursuant to Commerce Clause). The Court also aided and abetted the WOD
through its consistent curtailment of individual rights. See cummings & Ramirez, supra note
3, at 48283.
196
. 140 S. Ct. 1891 (2020). In Regents, the plaintiffs sought equitable relief against the
Department of Homeland Security (DHS) and other federal officials. The plaintiffs chal-
lenged the constitutionality, and legality under the Administrative Procedure Act (APA), of
the rescission of the Deferred Action for Childhood Arrivals (DACA) program. The DACA
program provided work authorization, eligibility for various federal benefits, and protections
from removal, for certain unauthorized aliens who had entered the United States as children.
Id. at 1901. The Court held that DHS’s rescission of DAC violated the APA. Id. In Part IV of
its opinion, the Court held that the plaintiff’s equal protection claims failed. Id. at 1916.
197. Much of the scholarly commentary on Regents focuses upon the Court’s APA analy-
sis. See William D. Araiza, Regents: Resurrecting Animus/Renewing Discriminatory Intent,
51 S
ETON HALL L. REV. 983, 985 (2021).
198. 140 S. Ct. at 1916 (holding that President Trump’s anti-Mexican statements “fail to
raise a plausible inference” that the rescission of DACA “was motivated by animus”).
199
. Id.
200. Id.
201. See id.
202. Id. at 1915.
203
. Justice Sotomayor, alone, dissented from the majority’s denial of the equal protec-
tion claim. Regents, 140 S. Ct. at 191618 (Sotomayor, J., concurring in part, concurring in
the judgment in part, and dissenting in part). She alone argued that the equal protection claim
should go forward so that plaintiffs could develop their allegations in discovery. Id. at 1917
(Sotomayor, J., concurring in part, concurring in the judgment in part, and dissenting in part)
(“[T]he Court forecloses any challenge to the rescission under the Equal Protection Clause. I
2022] RACIST ROOTS 485
ing: “At the motion-to-dismiss stage, I would not so readily dismiss the alle-
gation that an executive decision disproportionately harms the same racial
group that the President branded as less desirable mere months earlier.”
204
Justice Sotomayor further explained: “Taken together, ‘the words of the
President’ help to ‘create the strong perception’ that the rescission decision
was ‘contaminated by impermissible discriminatory animus.’ This percep-
tion provides respondents with grounds to litigate their equal protection
claims further.”
205
Finally, the dissent argued that the Administration’s shift-
ing of positions regarding DACA “plausibly suggests that something other
than questions about the legality of DACA motivated the rescission deci-
sion.”
206
In the end, the Court in Regents discounted the possibility of animus’s
driving the rescission of the DACA program, in the absence of compelling
evidence linking the rescission to the putative animus of those in the chain
of command, including the President and any underlings.
207
The Court ap-
parently found Presidential animus insufficient to plead an animus claim,
leaving some commentators puzzled due to precedents seemingly lending
great weight to Presidential authority in other cases not involving racial dis-
crimination.
208
The Court simply refuses to permit the conclusion that the
President can act with racial animus—a sort of executive exemption from
unlawful conduct.
209
This all caused the Harvard Law Review to conclude
believe that determination is unwarranted on the existing record and premature at this stage of
the litigation. I would instead permit respondents to develop their equal protection claims on
remand.”).
204. Id. at 1918 (Sotomayor, J., concurring in part, concurring in the judgment in part,
and dissenting in part).
205. Id. at 1917 (Sotomayor, J., concurring in part, concurring in the judgment in part,
and dissenting in part).
206. Id. at 1918 (Sotomayor, J., concurring in part, concurring in the judgment in part,
and dissenting in part).
207
. As such, the Court imposed a constipated level of review for claims of racial dis-
crimination—allowing much discrimination to pass under the radar. See Fifth Amendment—
Due Process Clause—Equal Protection—Department of Homeland Security v. Regents of the
University of California, 134 H
ARV. L. REV. 510, 519 (2020) (concluding that “the Court’s
latest effort to avoid acknowledging the administration’s real reasons may create unnecessary
obstacles for future claims of discriminatory intent.”).
208. Id. at 519 (“[T]he Court’s one-page dismissal of the equal protection claims in this
case indicates that it is unwilling to consider the possibility that the Executive intends to
discriminate.”).
209
. “But, especially given its decision in Seila, if the Court wanted to exempt the Presi-
dent from such inquiries into motive, it should have provided an explicit reason for doing so.”
Id. at 519 (citing Seila L. LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2211 (2020)
(holding that: “In our constitutional system, the executive power belongs to the President, and
that power generally includes the ability to supervise and remove the agents who wield exec-
utive power in his stead. . . . The Constitution requires that such officials remain dependent
on the President, who in turn is accountable to the people.”)). Apparently, however, despite
486 UA LITTLE ROCK LAW REVIEW [Vol. 44
that “[t]he Regents Court’s hasty dismissal of the equal protection claims at
the pleading stage may therefore make claims of discrimination by the gov-
ernment even harder to prove.”
210
More disturbingly, the upshot of the
Court’s analysis expansively licenses executive racial animus—which itself
leads to bloodshed, insurrection, hate crimes, and geopolitical vulnerabil-
ity.
211
Strange days, indeed.
212
So far, the animus doctrine in the Roberts Court appears to protect
white, conservative plaintiffs over the claims of people of color.
213
As such,
in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
214
the
Court protected bakers who declined to bake a wedding cake for a same-sex
couple. In Trump v. Hawaii the Court reversed the lower courts’ finding that
President Trump’s hostility to Muslims justified overturning the Administra-
tion’s travel restrictions which largely focused on Muslims.
215
The Roberts
Court cannot see racial animus, however, suggesting that Whites only need
apply for equal protection in the United States today, regardless of the scope
of suffering.
Thus, the Roberts Court rejected animus claims brought by Muslims
and Mexican Americans against the Trump Administration—featuring a
President whose hate speech
216
(aimed at Muslims and Mexican Americans)
the expansive executive power, the Court will not hold the President accountable for his
racial animus.
210. Id. at 519.
211. See Steven A. Ramirez, Hate on the Ballot: Election 2020 and the Quest for a Di-
verse and Inclusive Democracy, 23 H
ARV. LATINX L. REV. 255, 25859 (2020).
212
. Once plaintiffs claiming violations of equal protection prove they are victims of a
law based in animus, no need for further inquiry exists. ARAIZA, supra note 188, at 112119.
“No additional scrutiny required. Game over.” Id. at 112. In Regents the Court never bothered
with any determination of discriminatory intent or strict scrutiny of the government’s action.
See, e.g., Washington v. Davis, 426 U.S. 229, 24142 (1996).
213. Compare Trump v. Hawaii, 138 S. Ct. 2392, 241623 (2018) (considering, but re-
jecting under deferential review, a claim that presidential travel restrictions were motivated
by animus and therefore were purposefully designed to discriminate against Muslims in vio-
lation of the Establishment Clause) with Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rts.
Comm’n, 138 S. Ct. 1719, 172932 (2018) (finding that a state civil rights commission vio-
lated the Free Exercise Clause when it acted with hostility toward a Christian baker who had
objected on First Amendment grounds to creating a custom wedding cake for a same-sex
couple).
214. 138 S. Ct. 1719 (2018).
215. Id. at 240607, 241617, 2423 (“Because plaintiffs have not shown that they are
likely to succeed on the merits of their claims, we reverse the grant of the preliminary injunc-
tion as an abuse of discretion.).
216
. Ramirez, supra note 211, at 260 (“Trump opened his presidential campaign with a
libelous characterization of Mexican immigrants. He stated, ‘They’re bringing drugs. They’re
bringing crime. They’re rapists. And some, I assume, are good people.’. . . When similarly
hateful rhetoric was employed by a president over one hundred years ago during wartime,
murders and hate crimes accompanied it.”). As the United States becomes more diverse, more
2022] RACIST ROOTS 487
inspired more hate crime than any President in over 100 years.
217
Such a
position simply bespeaks a Court that lives in a detached reality and fails to
comprehend the increasingly soaring costs of racial hierarchy.
218
The War on
Drugs alone costs the nation hundreds of billions per year.
219
Neither legal
doctrine nor legal policy supports the Court’s apparent blindness to racial
animus in the United States.
The Roberts Court does not stand alone in protecting whites from ani-
mus rather than litigants claiming racial discrimination.
220
In general, the
Supreme Court experiences tremendous difficulty in seeing racial discrimi-
nation against people of color. Professor Juan Perea highlights, for example,
that when white plaintiffs challenge affirmative action the Court dispenses
with the need for the white litigants to show constitutional harm.
221
The
Court also does not require white plaintiffs challenging affirmative action to
make any showing of animus or that race, as opposed to some other objec-
fellow citizens will become enmeshed in the racial hierarchy, causing increasingly greater
costs.
217. Id.
218
. “Maintenance of a socially constructed racial hierarchy within any society entails
huge costs because race necessarily involves the mass destruction of human potential and
human capital.” Ramirez & Williams, supra note 12, at 310 (citing Byron G. Auguste et al.,
The Economic Cost of the US Education Gap, M
CKINSEY & COMPANY (June 2009),
http://www.mckinsey.com/industries/social-sector/our-insights/the-economic-cost-of-the-us-
education-gap [https://perma.cc/3QVF-2SWT] (finding educational costs alone of socially
constructed racial hierarchy of about $525 billion per annum in 2009 dollars)); see also Ste-
ven A. Ramirez, What We Teach When We Teach About Race: The Problem of Law and
Pseudo-Economics, 54 J.
LEGAL EDUC. 365, 375 (2004) (estimating macroeconomic costs of
race to approach $1 trillion per year in foregone GDP in 2004 dollars).
219. cummings & Ramirez, supra note 3, at 487 (quoting economist Joseph Stiglitz: “As
a perpetual drag on the earning potential of tens of millions of Americans, these costs are not
only borne by individuals, their families, and their communities[; t]hey are also system-wide
drivers of inequality and are so large as to have macroeconomic consequences.”). In all, the
War on Drugs costs the nation $550 billion per year in GDP and wasted government expendi-
tures. Id. at 48790.
220
. See, e.g., U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) (protecting hippies
living in communes from food stamp ineligibility); City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 44648 (1985) (protecting mentally challenged from zoning restrictions);
Romer v. Evans, 517 U.S. 620 (1996) (protecting non-heterosexuals from state constitutional
amendment imposing political encumbrances). The point is not that these classes did not
deserve protection. Instead, the point revolves around a simple question: how exactly did the
Court fail to find racial animus for nearly a half century in America during the era of mass
incarceration?
221. Juan F. Perea, Doctrines of Delusion: How the History of the G.I. Bill and other
Inconvenient Truths Undermine the Supreme Court’s Affirmative Action Jurisprudence, 74
U. P
ITT. L. REV. 583, 62224 (2014) (“[T]he Court places this mantle of innocence and vic-
timization upon the plaintiffs in the leading affirmative action cases, most (perhaps all) of
whom would have been denied admission in the absence of affirmative action.”).
488 UA LITTLE ROCK LAW REVIEW [Vol. 44
tive, is the motivating factor behind admissions decisions.
222
Consequently,
equal protection for non-whites only rarely warrants court intervention.
Indeed, the very essence of the institutional structure and role of the
Supreme Court with respect to power strongly suggests that at least for the
foreseeable future, claims of animus will not likely benefit disempowered
groups such as the people of color mired in the lethal grips of our racial hi-
erarchy, entrenched since 1980 through the War on Drugs.
223
The Court
seems more prone to preserve the socioeconomic power structure (including
the racial hierarchy supporting it) rather than disrupting its replication.
224
Indeed, the Supreme Court only rarely takes equal protection seriously to
protect African Americans and other disempowered groups.
225
222
. For example, the Court will routinely authorize searching inquiry into university
admissions policies seeking cultural diversity but will nevertheless fail to address the increas-
ingly corrupt admissions practices for the rich and powerful, such as legacy admits or chil-
dren of donors. See Peter Arcidiacono et al., Legacy and Athlete Preferences at Harvard, 40
J.
LABOR ECON. 133 (2021) (finding that white students benefit from legacy and other prefer-
ences far more than students of color benefit from affirmative action).
223
. See generally ADAM COHEN, SUPREME INEQUALITY: THE SUPREME COURT’S FIFTY-
Y
EAR BATTLE FOR A MORE UNJUST AMERICA xv (2020) (showing that for 50 years the Su-
preme Court protected the rich and powerful at the expense of the poor and marginalized);
E
RWIN CHEMERINSKY, THE CASE AGAINST THE SUPREME COURT 41, 29394 (2014) (stating
that and concluding that institutionally, the Court operates to protect the interests of dominant
political and economic elites, and that these outcomes reflect the backgrounds of the Justic-
es); Lewis R. Katz, supra note 13, at 92425.
224
. In 2013, the Supreme Court struck down key elements of the Voting Rights Act of
1965. Shelby Cty. v. Holder, 570 U.S. 529, 55657 (2013) (holding unconstitutional a provi-
sion of the Voting Rights Act of 1965 relating to a formula used to determine which states
were subject to preclearance requirements before they could implement any changes to their
voting procedures). This decision vivifies neo-Confederate doctrine. See, e.g., Peggy Cooper
Davis et al., The Persistence of the Confederate Narrative, 84 T
ENN. L. REV. 301, 356 (2017)
(“Justice Roberts, speaking for the Court, embellished the Confederate narrative, elevating
the status of States to both horizontal and vertical sovereignty.”).
225
. Conn. Gen. Life Ins. Co. v. Johnson, 303 U.S. 77, 90 (1938) (Black, J., dissenting)
(“Yet, of the cases in this Court in which the Fourteenth Amendment was applied during the
first fifty years after its adoption, less than one-half of one per cent. invoked it in protection
of [African Americans], and more than fifty per cent. asked that its benefits be extended to
corporations.”). One commentator calls the Supreme Court “one of the most powerful and
most malign institutions in American history.” I
AN MILLHISER, INJUSTICES, at x (2016) (citing
Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) (expanding the power of
corporations’ electioneering abilities and thereby empowering the CEOs of such corpora-
tions)). The injustices perpetrated by the Court that Millhiser highlights include the use of the
Fourteenth Amendment to protect the powerful instead of the most vulnerable, empowering
billionaires to “corrupt American democracy,” and neutering voting-rights protections for
minorities. Id. at xii–xiii. Essentially, Millhiser argues that the Supreme Court embraces
“extra-constitutional limits on the government’s ability to protect the most vulnerable Ameri-
cans, while simultaneously refusing to enforce rights that are explicitly enshrined in the Con-
stitution’s text.” Id. at xiii.
2022] RACIST ROOTS 489
Redesigning the Supreme Court to impose some level of democratic
accountability now occupies center stage in political commentary.
226
It may
now be time to restructure the Court before its backward-looking jurispru-
dence leads to massive bloodshed and the loss of American exceptionalism,
with all that entails in terms of the well-being of all Americans.
227
After all,
the Court continues to allow our legal system to promote grave injustice and
suffering without any sense of concern for propagating the rampant racism
of the past, and thereby projects that racism into the indefinite future.
228
Now, the stakes could not be higher.
To be clear, the Court’s jurisprudence on race risks civil war and insur-
rection, like that seen on January 6, 2021, empowering our adversaries to
exploit our lack of social cohesion,
229
and macroeconomic contraction as
well as the unremitting oppression of millions of fellow citizens.
230
There is
overwhelming evidence that the Court’s tone-deaf approach to race and ine-
quality generally is empowering and encouraging our international adver-
saries to exploit the divisions the Court ignores and foments.
231
Racism now
poisons America generally, far beyond the nearly forty percent of the minor-
ity population directly ensnared in the legally constructed racial hierarchy.
232
The Court’s narrow and indulgent doctrine regarding race harms every
American and risks every value our nation holds dear—national security,
democracy, constitutional government, and any semblance of capitalistic
meritocracy.
226
. E.g., Kermit Roosevelt III, I Spent 7 Months Studying Supreme Court Reform. We
Need to Pack the Court Now, T
IME, https://time.com/6127193/supreme-court-reform-
expansion/ (Dec. 10, 2021) (“Court expansion may be the only thing that will save our de-
mocracy for the next generation.”); Nancy Gertner & Laurence H. Tribe, Opinion: The Su-
preme Court Isn’t Well. The Only Hope for a Cure is More Justices., W
ASH. POST (Dec. 9,
2021), https://www.washingtonpost.com/opinions/2021/12/09/expand-supreme-court-
laurence-tribe-nancy-gertner/ (identifying three major problems with the current Court: 1)
“the dubious legitimacy of the way some justices were appointed;” 2) “the ‘stench’ of politics
hovering over this court’s deliberations about the most contentious issues;” and, 3) “the anti-
democratic, anti-egalitarian direction of this court’s decisions about matters such as voting
rights, gerrymandering and the corrupting effects of dark money.”).
227. See The Attack, WASH. POST, www.washingtonpost.com/politics/interactive/2021/
jan-6-insurrection-capitol/ (detailing the bloodshed and violence of the January 6, 2021 insur-
rection).
228. P
ROVINE, supra note 33, at 16768.
229
. See generally Jack Stubbs, Russian Operation Masqueraded as Right-Wing News
Site to Target U.S. Voters, R
EUTERS (OCT. 2, 2020), https://www.reuters.com/article/usa-
election-russia-disinformation/exclusive-russian-operation-masqueraded-as-right-wing-news-
site-to-target-u-s-voters-sources-idUSKBN26M5OP; Zach Dorfman, How the Far Right
Made Itself a Russian Intel Target, A
XIOS (Jan. 20, 2021), https://www.axios.com/how-the-
far-right-made-itself-a-russian-intel-target-8767ac92-8d68-420d-85d3-2382694c861f.html.
230. See PROVINE, supra note 33, at 16768.
231. See Ramirez, supra note 211, at 257.
232. Id.
490 UA LITTLE ROCK LAW REVIEW [Vol. 44
As described, the Supreme Court indulges white litigants claiming an-
imus, even while refusing the searching inquiry that it requires for black and
brown litigants claiming animus. This position makes it nigh impossible for
communities of color to challenge the WOD as racially discriminatory and a
violation of the Equal Protection clause of the United States Constitution.
While we have provided ample evidence above that the very purpose of the
WOD, the root, was intentionally designed to harm, disempower, and disen-
franchise black and brown voters and citizens, the Supreme Court has staked
its claim: “Your Injuries, Though Intentionally Inflicted by the Government,
Shall Not Be Resolved Here.”
CONCLUSION
The War on Drugs produces massive suffering, pain and misery on an
almost unimaginable scale—suffering that, as intended, falls disproportion-
ately upon people of color. The animus motivating the WOD continues to-
day, making a mockery of equal protection under law for Americans of col-
or. Indeed, rarely has any public policy initiative been marked by such bra-
zen political and racial animus, as demonstrated above,
233
and yet like a
bone-crushing bulldozer it simply continues grinding up human lives, par-
ticularly devastating communities of color.
The Supreme Court of the United States as presently constituted simply
can no longer maintain any veneer of legitimacy if it continues to silently
allow the WOD to destroy the lives of millions of our people. The Supreme
Court acts with naked political partisanship and the continuation of the
WOD proves its divorce from reality and political accountability. The Court
cluelessly hobbles us economically and compromises our national security
by failing to even consider building national cohesion, unity, and human
development. It instead foments division and mass incarceration, alienating
an ever-growing proportion of our population from its government. The
Court must end the self-destructive and evil War on Drugs—or it must be
institutionally overhauled and restructured. As presently structured, the
Court transmogrifies the Constitution into a national suicide pact.
233. See supra Part III.
