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Feature: Crack/Powder Cocaine Sentencing Disparity Bill Passes Key House Subcommittee, Heads for Floor Vote

The House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security Wednesday approved a bill designed to end the disparity in sentencing for federal crack and powder cocaine offenses. The bill, the Fairness in Cocaine Sentencing Act of 2009 (H.R. 3245), passed by a vote of 16-9 and now heads for a House floor vote.

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the late Lillie Blevins, served life sentence for a crack cocaine ''conspiracy'' after being convicted on the word of a snitch who received probation in return (courtesy november.org)
Under laws passed in the midst of the crack cocaine panic of the 1980s, it takes 100 times as much powder cocaine as crack to trigger mandatory minimum sentences. For example, five grams of crack earns a five-year mandatory minimum, but it takes 500 grams of powder to garner the same sentence.

A majority of crack users are white, but more than 80% of federal crack prosecutions have been aimed at blacks. When Hispanics are added in, nearly 96% of all federal crack prosecutions have been aimed at non-whites.

The bill, sponsored by Rep. Bobby Scott (D-VA) addresses the disparity by removing all references to crack cocaine in federal sentencing laws and treating the two forms of the drug equally. Under the bill, it would take 500 grams of either crack or powder cocaine to trigger the mandatory minimum sentence. The bill would also eliminate mandatory minimum sentences for possession of any amount of crack.

"We have taken a big step today toward ending the disparity that exists between crack and powder cocaine sentencing," said Judiciary committee chair Rep. John Conyers (D-MI), who cosponsored the bill. "African Americans serve almost as much time in federal prison for a drug offense (58.7 months) as whites do for a violent offense (61.7 months), largely due to sentencing laws such as the 100-to-1 crack-powder cocaine disparity. Since 1980, the number of offenders in federal prisons for drug offenses has skyrocketed from less than 5,000 to almost 100,000 in 2009. Currently, drug offenders represent 52% of all federal prison inmates."

The crack/powder sentencing disparity has been the most glaring example of racially imbalanced drug enforcement in recent years and has been under attack not only by sentencing reform advocates, civil libertarians, and civil rights groups, but also by the US Sentencing Commission, which has for more than a decade called for its elimination. But any moves to address it languished during the Bush administration.

The atmosphere has changed with Democratic control of the White House and the Congress. Both President Obama and Attorney General Holder support ending the disparity, so do congressional Democrats, and even some congressional Republicans.

Remaining Republican hard-line drug warriors in the subcommittee attempted to subvert the spirit of the bill, resorting to time-honored anti-drug political tactics, but failed. Rep. Lamar Smith (R-TX), the ranking Republican on the committee, was concerned about sending messages. "The bill sends the wrong message to drug dealers and those who traffic in ravaging human lives. It sends the message that Congress does not take drug crimes seriously," he complained.

Rep. Darrell Issa (R-CA) introduced an amendment to address the disparity by making the current draconian penalties for crack apply to powder cocaine as well. He said he supported reducing the sentencing disparity, but "let's do it on the side of making sure our streets are safer, not less safe."

But committee Chairman Rep. John Conyers (D-MI) ruled the amendment out of order. It was then tabled on a 14-13 vote.

Rep. Melvin Watt (D-NC) captured the majority sentiment for ending the crack/powder sentencing disparity. "It did not work," he said. "We were wrong."

The vote was welcomed by sentencing reform advocates. "Today's vote is an historic first step in ending a 20-year injustice," said Michael Macleod-Ball, interim director of the ACLU's Washington Legislative Office. "Lawmakers must act now to eliminate the disparity between crack and powder cocaine sentencing by treating both forms of the same drug equally under federal law. Congress alone has the authority to put a stop to the crack-powder disparity and long mandatory minimum sentences."

"Justice won today," said Julie Stewart, president of Families Against Mandatory Minimums (FAMM). "Today's vote represents another step to restoring basic fairness to our sentencing laws and to fulfilling the Constitution's promise of equal justice under the law. We urge the full House to act quickly on this measure."

"It makes no more sense to punish crack cocaine offenders more harshly than powder cocaine offenders than it does to punish wine drinkers more harshly than beer drinkers. Crack and powder cocaine are two forms of the same drug," said Jasmine Tyler, deputy director of national affairs for the Drug Policy Alliance. "When all is said and done people will look back at this as a watershed moment -- the day that Congress began rolling back some of the drug war's worst excesses."

The bill still has to pass the House. On the Senate side, Majority Whip Richard Durbin (D-IL) is preparing to introduce his own measure to eliminate the sentencing disparity. It is expected to win bipartisan support from his fellow Judiciary Committee members.

Sentencing: House Subcommittee Approves Reducing Federal Crack Cocaine Penalties

An end to the notorious sentencing disparity between crack and powder cocaine may be in sight. After more than a decade of congressional dawdling since the US Sentencing Commission called for the disparity to be ended because of its racially disproportionate impact, a bill that would do so is finally moving in the Congress.

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DEA crack cocaine photo
Under current federal law, it takes 500 grams of powder cocaine to garner a five-year mandatory minimum prison sentence, but only five grams of crack to earn the same time. The 100:1 sentencing disparity has been widely criticized for years, especially because about nine out of 10 federal crack prosecutions are aimed at African-Americans. (Most crack users are white, despite popular belief.)

On Wednesday, the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security passed H.R. 3245, the Fairness in Cocaine Sentencing Act of 2009. They did so unanimously, making the vote a striking moment of bipartisanship on a once controversial issue. The bill removes all references to "cocaine base" -- federalese for crack -- from the US criminal code, effectively treating all forms of cocaine the same for sentencing purposes.

The bill is sponsored by Rep. Bobby Scott (D-VA) and has 20 cosponsors, including every Democrat on the subcommittee. It now heads to the full House Judiciary Committee, which is headed by Rep. John Conyers (D-MI), also an ardent supporter of ending the sentencing disparity.

Sentencing reform advocates cheered the bill's progress. "I knew it was coming," said Julie Stewart, president of Families Against Mandatory Minimums. " There has been so much attention paid to sentencing policies in the past six months that it was only a matter of time before one of the half-dozen sentencing bills in Congress would start moving. Today it did."

Repealing the crack/powder cocaine sentencing disparity is a much needed step in restoring trust and enacting smarter policies , said Stewart. "If Congress eliminates the sentencing disparity between crack and powder cocaine, it would not only restore some faith in the justice system among the communities most affected by the law, it would reduce prison overcrowding and free up funding for more effective rehabilitation efforts. A minimum of $26 million would be saved in the first year of the reforms and nearly $530 million over the next 15 years," she said. "FAMM strongly urges Congress to make the changes retroactive so that people currently serving unjust sentences for crack cocaine can benefit and taxpayers will see even greater savings."

Ethan Nadelmann Challenges NAACP to Oppose the Drug War




It's a fascinating speech and I would have liked to see the audience's reaction for myself. It's an unfortunate reality that the case for drug policy reform has yet to be widely embraced in the African-American community and Ethan faced the unique challenge of presenting our argument to NAACP leaders in only 7 minutes.

Bonus: Here's some subsequent discussion from the same event, in which an audience member asks the panelists what they think about marijuana legalization.

Sentencing: Obama Administration Tells Congress to End Crack/Powder Cocaine Disparity

In a break with the Bush administration, Justice Department officials called Wednesday for the first time for Congress to pass legislation that would undo the vast disparities in sentences for those convicted of crack and powder cocaine possession offenses. For years, drug reformers, civil rights groups, and even the US Sentencing Commission have called for the disparities to be undone, saying they have had a racially disproportionate impact on poor and minority communities.

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Senator Richard Durbin (D-IL) opens the hearing
Under federal sentencing laws adopted in the midst of the crack hysteria of the 1980s, it takes 500 grams of powder cocaine to generate a mandatory minimum five-year federal prison sentence, but only five grams of crack to generate the same sentence. Historically, blacks have accounted for more than 80% of all federal crack convictions, with whites accounting for less than 10%.

Competing bills have been introduced to eliminate or reduce the disparity between crack and powder cocaine sentences, but in previous years they have not gotten far. With the administration now behind eliminating the disparity, this year could be different.

Justice Department Criminal Division Chief Lanny Breuer told a Senate Judiciary Committee subcommittee Wednesday that the administration supported bills that would equalize punishments for crack and powder cocaine offenses. The disparity should be "completely eliminated," he said.

"Now is the time for us to reexamine federal cocaine sentencing policy, from the perspective of both fundamental fairness and safety," Breuer told the Judiciary subcommittee on crime and drugs. He added that a Justice Department panel is reviewing a broad range of criminal justice topics, including sentencing reforms.

It's about time, said Sen. Richard Durbin (D-IL), the Senate majority whip, citing the racially disproportionate crack conviction figures. "These racial disparities profoundly undermine trust in our criminal justice system and have a deeply corrosive effect on the relationship between law enforcement and minority communities," Durbin said.

US District Judge Reggie Walton, representing the Judicial Conference, also addressed the committee. The crack/powder cocaine sentencing disparity is "one of the most important issues confronting the criminal justice system today," he said. "No one can appreciate the agony of having to enforce a law that one believes to be fundamentally unfair to individuals who look like me," said the judge, who is black.

Sentencing reform advocacy groups were also on hand for the hearing. Mary Price, vice president and general counsel for Families Against Mandatory Minimums (FAMM) told the subcommittee the sentencing disparity has a discriminatory impact on blacks, including people like FAMM client Eugenia Jennings, now serving a 20-year prison sentence for twice trading small amounts of crack for designer clothes.

"This hearing gives new hope to thousands who have loved ones serving harsh sentences for low-level, nonviolent drug offenses," Price said.

Even former DEA head and enthusiastic drug warrior Asa Hutchinson had little good to say about the crack/powder cocaine sentencing disparity. "When significant numbers of African Americans on the street question the fairness of our criminal justice system, then it becomes more difficult for the officer on the street to do his or her duty under the law," Hutchinson said.

A number of bills have been filed in both the House and the Senate to address the crack/powder cocaine sentencing disparity. Now, the fight will be to ensure that eliminating the disparity means reducing crack sentences, not increasing powder ones.

Click here to view archived video of the hearing.

The Movies: "American Violet" Film Opens Tonight, Tells the Story of the Hearne, Texas, Injustice

announcement from Samuel Goldwyn Films

On April 17, Samuel Goldwyn Films will release American Violet, a new film based on true events that occurred in the small Texas town of Hearne. The film examines how drug laws and enforcement practices target African-Americans, and, how the justice system uses threats and intimidation to steer them towards guilty pleas, regardless of their innocence or the evidence against them. As the film points out, more than 95% of criminal convictions in this country are the result of plea-bargains, not jury trials. While the film is based on a specific case, the story it represents is hardly unique or isolated, and, the film's release presents an exceptional opportunity to explore how the drug war has become the new Jim Crow.

American Violet is inspired by the real life story of Regina Kelly, an African-American, single mother of four girls who was arrested in 2000 in a military-style drug raid. The raid resulted in the arrest of nearly 15% of the town's young black male population for felony cocaine distribution.

Kelly was innocent. Her name, along with the names of many others arrested (nearly all African-American), were given to police by a single, highly unreliable informant with personal reasons to antagonize her. Despite Kelly's innocence, she was urged to plead guilty by her family and even her public defender so that she could return to her children and receive a minimal sentence. A felony conviction, however, would have resulted in the loss of her right to vote and the public assistance programs on which her family depended, not to mention the tainting of her personal reputation and her ability to obtain employment. She chose to maintain her plea of not guilty. The ACLU Drug Law Reform Project came on board to represent her.

In American Violet, Kelly's on-screen character is named Dee Roberts (played by newcomer Nicole Beharie) and the ACLU lawyer in the film is played by Tim Blake Nelson. Alfre Woodard, Charles Dutton, Will Patton, Michael O'Keefe and Xzibit also star. The town of Melody and certain other characters and events are fictitious.

Eventually, the charges against Kelly were dropped (as were the charges against most of the others arrested in the same drug raid due to the same informant's lack of credibility). Yet, she was separated from her children while she was incarcerated, shamed in her small community by being labeled a drug dealer, fired from her job, and had difficulty obtaining employment thereafter; in short, her life was torn apart due to her arrest and her time in jail. Graham Boyd, Director of the ACLU Drug Law Reform Project represented her in a lawsuit against the county and the District Attorney (among other parties), for damages, which resulted in a settlement.

More importantly, the case resulted in a change in Texas law, whereby now, cases cannot be prosecuted based solely on the claims of a single informant.

Visit http://schedule.samuelgoldwynfilms.com/films/american+violet/ for a list of cities where the movie is opening.

Sentencing: Number of African Americans in Prison for Drugs Falling, Whites Increasing

The number of African Americans behind bars for drug offenses dropped dramatically from 1999 to 2005, while the number of white drug war prisoners has increased, according to a report released Tuesday. That is a "potentially significant change" in the outcomes of drug policies, said the report's author.

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still too many people in prison notwithstanding
The report, The Changing Racial Dynamics of the War on Drugs, was written by Sentencing Project executive director Marc Mauer. It relied on official numbers from the Justice Department's Bureau of Justice Statistics.

According to the report, in 1999, 145,000 blacks were doing time in state prisons for drug offenses; by 2005, that number had declined by 22% to 113,500. At the same time, the number of white drug war prisoners jumped 43%, from 50,000 in 1999 to more than 72,000 in 2005. The number of Hispanics doing time for drugs in state prisons remained constant at about 51,000.

The decline in the number and percentage of black drug war prisoners is the first since the crackdown on crack during the lock-'em-up Reagan years of the mid-1980s. But while the decline is significant, blacks remain imprisoned on drug charges at a disproportionate rate. They made up 45% of state drug prisoners in 2005, down from 58% in 1999, but still far in excess of their percentage of the overall and drug-using populations, about 12%.

The report examined the reasons behind the decrease in black drug prisoners and the increase in white drug prisoners and arrived at some tentative conclusions. It found that blacks made up a declining percentage of all non-marijuana drug arrests and accounted for a declining number of drug convictions during the period in question.

The reasons for the declines in black drug arrests, convictions, and imprisonment lie in the rise and fall of crack cocaine and the increasing resort to drug courts and other diversionary programs, the report suggested. With crack use falling off after its harms became apparent, and with crack sellers shifting from open air markets to indoor sales, the number of African-Americans arrested for crack offenses is declining. Similarly, the report suggests that the increase in whites imprisoned on drug charges may be partially attributable to the rise of methamphetamine in the past decade.

American Violet

An Announcement from Samuel Goldwyn Films On April 17, Samuel Goldwyn Films will release AMERICAN VIOLET (http://www.americanviolet.com), a new film based on true events that occurred in the small Texas town of Tulia (see: http://stopthedrugwar.org/chronicle-old/284/colemanindicted.shtml). The film examines how drug laws and enforcement practices target African-Americans, and, how the justice system uses threats and intimidation to steer them towards guilty pleas, regardless of their innocence or the evidence against them. As the film points out, more than 95% of criminal convictions in this country are the result of plea-bargains, not jury trials. While the film is based on a specific case, the story it represents is hardly unique or isolated, and, the film's release presents an exceptional opportunity to explore how the drug war has become the new Jim Crow. AMERICAN VIOLET is inspired by the real life story of Regina Kelly, an African-American, single mother of four girls who was arrested in 2000 in a military-style drug raid. The raid resulted in the arrest of nearly 15% of the town's young black male population for felony cocaine distribution. Kelly was innocent. Her name, along with the names of many others arrested (nearly all African-American), were given to police by a single, highly unreliable informant with personal reasons to antagonize her. Despite Kelly's innocence, she was urged to plead guilty by her family and even her public defender so that she could return to her children and receive a minimal sentence. A felony conviction, however, would have resulted in the loss of her right to vote and the public assistance programs on which her family depended, not to mention the tainting of her personal reputation and her ability to obtain employment. She chose to maintain her plea of not guilty. The ACLU Drug Law Reform Project came on board to represent her. In AMERICAN VIOLET, Kelly's on-screen character is named Dee Roberts (played by newcomer Nicole Beharie) and the ACLU lawyer in the film is played by Tim Blake Nelson. Alfre Woodard, Charles Dutton, Will Patton, Michael O'Keefe and Xzibit also star. The town of Melody and certain other characters and events are fictitious. Eventually, the charges against Kelly were dropped (as were the charges against most of the others arrested in the same drug raid due to the same informant's lack of credibility). Yet, she was separated from her children while she was incarcerated, shamed in her small community by being labeled a drug dealer, fired from her job, and had difficulty obtaining employment thereafter; in short, her life was torn apart due to her arrest and her time in jail. Graham Boyd, Director of the ACLU Drug Law Reform Project represented her in a lawsuit against the county and the District Attorney (among other parties), for damages, which resulted in a settlement. More importantly, the case resulted in a change in Texas law, whereby now, cases cannot be prosecuted based solely on the claims of a single informant. Visit http://schedule.samuelgoldwynfilms.com/films/american+violet/ for a list of cities where the movie is opening.

The Sentencing Project -- New Findings: Decline in Black Incarceration for Drug Offenses

Dear Friend,

For the first time in 25 years, since the inception of the "war on drugs," the number of African Americans incarcerated in state prisons for drug offenses has declined substantially, according to a study released today by The Sentencing Project. It finds a 21.6% drop in the number of blacks incarcerated for a drug offense, a decline of 31,000 people during the period 1999-2005.

The study, The Changing Racial Dynamics of the War on Drugs, also documents a corresponding rise in the number of whites in state prison for a drug offense, an increase of 42.6% during this time frame, or more than 21,000 people. The number of Latinos incarcerated for state drug offenses was virtually unchanged.

The study notes that the black declines in incarceration represent "the end result of 50 state law enforcement and sentencing systems" which need to be examined individually. But overall, the decline in blacks incarcerated for a drug offense follows upon declining arrest and conviction rates for blacks as well. The study suggests much of the disparity resulting from the drug war has been a function of police targeting of open-air drug markets. As crack use and sales have declined, or moved indoors in some cases, law enforcement activity may have been reduced correspondingly.

Because of the rising number of whites in prison for a drug offense, the overall number of persons serving state prison time for a drug offense remained at a record 250,000 during the study period. The white increase may be related in part to more aggressive enforcement of methamphetamine laws, according to the study. While methamphetamine is only used at significant levels in a relative handful of states, data from states such as Iowa and Minnesota show a substantial influx of these cases during this time period.

The analysis by The Sentencing Project also documented a sharp contrast between state and federal prison populations. While the number of persons in state prisons for a drug offense rose by less than 1% during the study period, the increase in federal prisons was more than 32%. These latter changes are attributed to ongoing aggressive enforcement of drug laws, including application of harsh mandatory sentencing policies. Despite declines in the use of crack cocaine, federal prosecution and incarceration levels for crack offenses remain high and have a stark racially disparate impact.

In reviewing the study's findings, Mauer noted that despite the new trend, African Americans are still imprisoned at more than six times the rate of whites for all offenses. Moreover, high incarceration rates for low-level drug offenses remain a function of the largely punitive approach to drug abuse that has proven expensive and ineffective.

Today's study is based on an analysis of government data from the Bureau of Justice Statistics, FBI, and the Department of Health and Human Services. Click here to read The Sentencing Project's report, The Changing Racial Dynamics of the War on Drugs.

-The Sentencing Project

Sentencing: US Jail, Prison Population Hits Another Record High, Well Over Half a Million Drug Offenders Behind Bars

In its latest survey of US jails and prisons, the Justice Department's Bureau of Justice Statistics (BJS) reported at the end of March that the number of people behind bars in the US had set yet another all-time record. According to the BJS, there were nearly 2.4 million people imprisoned in the US on June 30 of last year, or one out of every 131 US residents.

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prison dorm
More than 1.4 million people were locked up in state prisons and another 200,000 in the federal prison system. Additionally, almost 800,000 found themselves in jail at the end of last June.

This BJS report does not break down the numbers by offense categories. In state prison systems, drug offenders typically account for between 20% and 25% of all prisoners, and they account for well over half of all federal prisoners. Assuming the lowball figure of 20% and applying it to jail populations as well, the number of drug war POWs was somewhere in the neighborhood of 550,000.

While the prison population continued to increase, the rate of increase is slowing. During the first six months of 2008, it increased by 0.8%, compared to an increase of 1.6% during the same period the previous year. The rate of growth in jail populations was 0.7%, the lowest rate of increase since Ronald Reagan assumed the presidency in 1981.

Some 16 states, led by the sentencing reform states of California and Kentucky, actually saw decreases in prison populations. In 18 of the states reporting prison population growth, the average rate of growth (1.6%) was nearly half as low as the rate the previous year (3.1%) But in the 16 remaining states it was full-steam ahead, led by Minnesota (up 5.2%), Maine (up 4.6%), and Rhode Island and South Carolina (up 4.3%).

And even though the federal prison population passed the 200,000 mark, that may be running out of steam too. The growth rate of 0.8% was the lowest for any six-period since BJS began collecting the data in 1993, the year Bill Clinton assumed the presidency.

Still, since 2000, when US imprisonment levels were already at historic highs, the US prison and jail population has increased by a whopping 19%, or more than 373,000 prisoners. That is the equivalent of an entire medium-sized city, such as Wichita (pop. 360,000), Honolulu (pop. 375,000), or Raleigh (pop. 376,000) vanishing behind bars in less than a decade.

Of the 800,000 people in jails last June 30, 52% were housed in the nation's 180 largest jails, all with average daily populations exceeding 1,000 inmates. Nearly two-thirds (63%) were jailed awaiting court action or had not been convicted. More than a million people were jailed every month in the year ending last June 30, for a total of 13.6 million.

African-Americans continue to figure prominently and disproportionately in the inmate population. Black male prisoners accounted for 37% of the male prison population, and while that figure was down from 41% the previous year, it still shows black males being incarcerated at a rate 6.6 times that of white males.

Crack the Disparity's National Month of Advocacy Special Pre-Opening Screening of "American Violet"

Seating is limited, so please RSVP asap to Anjuli Verma with the ACLU’s Drug Law Reform Project at averma@aclu.org, or Beverly Miller at beverly@aclu-nca.org or 202-457-0800. This is an excellent and moving Hollywood blockbuster film, starring Alfre Woodard and Charles Dutton, which poignantly explores issues of drug policy, fairness and criminal justice reform. The movie opens in theaters April 17, and tells the real life story of a young waitress wrongfully rounded up with others in a Tulia-style crack cocaine drug raid in Hearne, Texas nearly ten years ago. Her refusal to accept a plea helped expose that the massive drug sweep was a sham, based almost entirely on the word of an informant who was threatened with jail time and prison rape if he refused to implicate residents of a Hearne housing project. The ACLU’s Drug Policy Reform Project filed a civil suit on her behalf. Like the series of wrongful drug arrests in Tulia, Texas, the Hearne scandal was largely attributable to the federal Byrne Gant program, which not only creates the unaccountable, multi-jurisdictional drug task forces like those responsible for the abuses in Hearne and Tulia, but then also sets artificial, improper incentives by tying future funding to the number of arrests and drug seizures a task force makes. The Hearne tragedy would never have come to light without the massive media attention that was focused on Tulia. View the trailer at http://www.americanviolet.com/. A discussion will follow with American Violet filmmakers Bill Haney and Tim Disney, ACLU attorney Graham Boyd, and others. The event is brought to us by the American Civil Liberties Union of the National Capital Area and Samuel Goldwyn Films, with the ACLU of Maryland and the ACLU of Virginia. The Justice Roundtable’s “Crack the Disparity” Working Group is happy to support this screening and we invite you to join us!
Date: 
Tue, 04/07/2009 - 7:00pm - 9:00pm
Location: 
555 11th Street, N.W.
Washington, DC
United States

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