In April, former Attorney General Eric Holder told Frontline that the drug war “is over.” Over the last part of his final term, President Obama has echoed that refrain, granting clemency to hundreds of people incarcerated for drug offenses and emphasizing that the US has relied too much on the criminal punishment system to address drug-related problems.
The rhetoric of many lawmakers across the country has also swung toward a more “rehabilitation”-oriented approach, particularly in response to the recent rise in opiate overdose deaths. Even many conservative politicians are arguing for treatment-based solutions. This is at least partly because most of those who’ve died in the recent spate of opiate deaths have been white.
However, the war on drugs is not over; it has simply shifted. And when it comes to opiates — the political arena’s main drug focus right now — the shift is from prosecuting anyone who touches the drugs to a focus on aggressively prosecuting those accused of selling them. As one Ohio lawmaker put it, increasingly, “Jail is for the traffickers, treatment is for the addicts.” Of course, such statements ignore the fact that those two categories often overlap, and that even people only convicted of possession still sometimes end up in prison. Still, it’s those accused of selling drugs who are experiencing the brunt of the ramped-up penalties.
Decades of hyper-punitive drug policies have not decreased the use of drugs. The US leads the world in illicit drug use, and the drug war has been widely condemned for failing to stem drug misuse and perpetuating racist practices. However, these facts haven’t impeded the latest escalation in criminalization, which is reaching a fever pitch this fall. At the end of September, a New York congressman proposed a bill that would allow the death penalty to be imposed on a person who has sold heroin laced with fentanyl (an opioid pain medication that can more easily lead to overdose when combined with heroin) to someone who subsequently died of an overdose. The bill would also permit a sentence of life in prison (in other words, a sentence to die behind bars) for this charge. The congressman who proposed it, Rep. Tom Reed, explained that the legislation — bizarrely dubbed the Help Ensure Lives are Protected (HELP) Act — would provide “another tool for law enforcement, for our prosecutors, to go after, essentially, the worst of the worst.”
It may be comforting to think that drug overdose could be effectively eliminated by targeting a few “worst of the worst” evildoers, but the fact is, this is not a problem generated by individuals. The increase in overdoses has underlying social, economic and structural roots — and it’s also a product of criminalization itself. As The Lancet reported earlier this year, when drugs are criminalized, people are a whole lot less likely to use them in safer, healthier ways, and less likely to seek care when they need it. Overdoses are also more common among people who’ve recently been released from prison or jail. The ramping up of criminal penalties will only entrench the poverty, stigma, mental health issues and physical circumstances driving drug misuse.
Yet the blame-it-on-the-evildoers momentum is gaining steam. West Virginia lawmakers are currently discussing the prospect of permitting life imprisonment sentences to be imposed for heroin sales. States like Wisconsin, New Jersey, Louisiana and North Carolina are dusting off and utilizing existing laws that allow murder charges to be sought for selling drugs that result in overdose. In other states, like Pennsylvania, federal prosecutors have begun beefing up charges for those who’ve sold drugs that result in physical harm or death. Some of those being charged with murder in these cases are the deceased person’s friends and loved ones — oftentimes people who were also using the drug when the overdose occurred.
Of course, these laws aren’t applied equally: The systematic targeting of people of color by police and prosecutors means that many drug arrests are a result of racialized criminalization. In August, Maine’s notorious Gov. Paul LePage, who has deployed overtly racist myths to advance his state’s drug war, announced that the vast majority of dealers arrested in his state are Black and Latino. This isn’t surprising, but not for the reasons that LePage is implying. Most people who sell drugs are actually white — but Black and Brown people are disproportionately arrested for it.
Meanwhile, rural and suburban districts (often largely white) have been cracking down on drug offenses of all shapes and sizes. Small-time dealers are serving long sentences: Selling a few oxycodone pills to an undercover officer could net you more than a decade in prison in some counties.
Those who sell drugs have been classified as the “bad guys,” and when you end up in that category, the current public distaste for the drug war will hardly save you. Much of the enthusiasm for prison reform involves classifying a relatively small number of incarcerated people as victims who “shouldn’t be there” — and everyone else as a “criminal” who deserves it. Obama exemplified this tendency during his much-publicized visit to a federal prison last year, saying, “There are people who need to be in prison, and I don’t have tolerance for violent criminals.”
In other words, many of those advocating for reform retain the mindset that we must always deem some group of people irredeemable, and therefore disposable.
Scholar and activist Ruth Wilson Gilmore points out that, in fact, campaigns to reduce incarceration by releasing more people convicted of “low-level” offenses often entrench the mythology that there is a group of “dangerous people” who “need to be in prison.”
“Most campaigns to decrease sentences for nonviolent convictions simultaneously decrease pressure to revise — indeed often explicitly promise never to change — sentences for serious, violent, or sexual felonies,” Gilmore writes. “Such advocacy adds to the legitimation of mass incarceration…. It helps to obscure the fact that categories, such as ‘serious’ or ‘violent’ felonies, are not natural or self-evident, and more important, that their use is part of a racial apparatus for determining ‘dangerousness.'”
When Governor LePage described the opiate problem to the people of Maine in January, he framed it in terms of two distinct, seemingly self-evident categories — dealers and users — with the dealers being Black and users being white.
“These are guys with the name D-Money, Smoothie, Shifty — these types of guys — they come from Connecticut and New York, they come up here, they sell their heroin, they go back home,” LePage said. “Incidentally, half the time they impregnate a young white girl before they leave.”
The racialization of “crime” is not a new phenomenon, clearly; as Mariame Kaba, founder of Project NIA and other anti-prison projects, writes in The New Inquiry, “A persistent and seemingly endemic feature of U.S. society is the conflation of Blackness and criminality.” The effort to portray heroin dealers as Black is simply another manifestation of this ongoing conflation, in which the criminal punishment system is rooted.
In actuality, both opiate dealers and users are overwhelmingly white, and the “dealer” and “user” line is always blurry. LePage’s remarks are emblematic of the fact that the narratives used to promote heightened criminalization are often wholly fictional.
Of course, the proposed “solutions” are also fictional, in that they won’t actually solve anything. New York’s death-penalty-for-dealers bill is an extreme example of a pervasive issue: Within the criminal legal system, death is proffered as a solution to death; pain is proffered as a solution to pain.
It’s worth mentioning that even the supposedly benevolent “treatment” sentences being dispensed to those who use drugs are often punitive, sometimes involving mandatory and even locked-down confinement in rehabs that can resemble prisons. Moreover, despite the “jail the dealers, treat the users” rhetoric, plenty of people are still being jailed for possession.
Punishment is the lifeblood of the criminal legal system. It can’t be surgically extracted. And no matter who is labeled “criminal,” this system’s prescriptions will never produce justice — let alone health.
Death will not foster life. Caging will not foster healing. Isolation will not foster strong communities. Instead, these strategies will continue to reproduce the structures on which the system was built: ongoing legitimized racist, classist and ableist oppression.
Despite the proclamations of politicians, the drug war will not end until we stop blaming drug-related problems on “criminals.” We need to ask ourselves: If no one were “criminal,” what would we do to build a society that fostered health and life? Instead of thinking about who or what we must destroy (or kill, or cage, or control), we need to be thinking: What can we create?