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Profiling and the Drug War

Documents in the New Jersey archive show that one of the major villains in the New Jersey racial profiling scandal is the US Drug Enforcement Administration (DEA). As part of its "Operation Pipeline," DEA agents have trained local and state law enforcement personnel around the country to explicitly use race as a basis for highway stops. This was discussed in an article by Gary Webb in the April 1999 issue of Esquire, and reported this month in the New York Times. Though racially-biased law enforcement certainly pre-dated the DEA and is part of a centuries-long tradition of mistreatment of members of racial minority groups in this country, DEA's efforts have undoubtedly elevated the problem to a greater level. We hope that the next President will issue and Executive Order putting DEA's racial profiling training to a stop.

Racial profiling, and profiling in general, is an inevitable consequence of the "war on drugs." Unlike crimes against persons, which have a complaining victim, drug crimes involve consenting parties who wish very much to keep their transactions private. In order to find drugs, police adopt highly intrusive tactics -- stop and frisks, vehicle searches, no knock warrants, etc. -- and in order to decide where and when to intrude, they've adopted the use of profiles, racial and other. In the drug war's martial atmosphere, many police officers come to believe that "anything goes," and set aside ethical or even legal concerns in order to fight the war and catch drugs at any cost.

Yet despite soaring arrest and incarceration rates and record drug seizures, the availability of drugs -- as measured by youth surveys and declining street prices -- is greater than ever before. In other words, decades of experience teaches us that the war on drugs, in its criminal justice and international interdiction aspects, has failed. Racially based drug law enforcement would be unacceptable, even if the drug policy of which it is a part were succeeding. How much more tragic, then, are racial profiling and its attendant indignities and injustices, when the drug war of which they are a part is itself in vain?

Worse, the drug war itself inflicts deep harms on our society, harms which racial profiling intensifies upon the most targeted groups. One of those harms is the spread of HIV, hepatitis and other blood-borne epidemic diseases. Drug war laws in most states that criminalize the possession and sale of syringes to addicts and which ban needle exchange programs encourage sharing of used syringes, spreading disease through the injecting population and through them to society at large. The Dogwood Center has found that African American injection drug users are five times more likely than white injection drugs users to be HIV positive, and Latino injection drug users at least 1 1/2 times more likely than white users.

This disparity is believed to be caused by racial profiling:  A white drug user can possess unused syringes for a period of time with relatively less fear of being caught and prosecuted because of it; whereas a black user stands a strong possibility of being stopped and frisked, in which case syringe possession can get him or her sent to prison or jail. Hence, black injection drug users are more likely to obtain, use and discard needles in short order upon obtaining them, increasing not only the risk of needle sharing, but also the problem of discarded needles endangering passersby.

The state of New Jersey criminalizes both syringe possession for the purpose of illegal drug use and the selling of syringes without a prescription. This is one of the reasons that New Jersey has the fifth highest rate of injection-related AIDS, 198 people per million, according to the Dogwood Center. In 1996, former New Jersey Attorney General Deborah Poritz targeted New Brunswick's Chai Project, New Jersey's only needle exchange program, for arrest and closure. We believe that more New Jerseyans are now living and dying with AIDS and hepatitis because of Attorney General Poritz's actions.

Another consequence that we predict is the disparate denial of access to higher education. Under a new law enacted in the fall of 1998, students convicted of misdemeanor or felony drug offenses lose some or all of their federal financial aid, temporarily or permanently. Because financial aid is mainly needed by the poor and middle classes, the law by its very definition discriminates on the basis of economic class. Because of racial profiling and disparate drug law enforcement, however, and because of our nation's racially disparate economic situation, the law will also indirectly discriminate by race. Our organization is coordinating a student based campaign to overturn this law, and more more than 30 student governments at campuses around the country have adopted resolutions calling for its repeal. (Further information on this issue is available online at http://www.RaiseYourVoice.com.)

Perhaps the worst consequence of racial profiling and the drug war is the incarceration rate. At two million and growing, the US boasts the highest incarceration rate in the world, beyond that of Russia or South Africa. A 1995 study by the Sentencing Project found that nearly one in three African American males in the age group 20-29, 827,440 people at the time, was under criminal justice supervision on any given day -- in prison, jail, probation or parole. The Sentencing Project also reported the following sobering statistics, which we excerpt from their report:

  • African American women have experienced the greatest increase in their rate of criminal justice control of all demographic groups in recent years, increasing by 78% from 1989 to 1994.
  • The proportion of Hispanics in the state and federal prisons doubled from 1980 to 1993, rising from 7.7% of all inmates to 14.3%.
  • Drug offenders represented the largest proportional growth of inmates nationally in recent years, increasing by 510% from an estimated 57,975 in 1983 to 353,564 in 1993.
  • While African Americans constitute 13% of all monthly drug users, they represent 35% of arrests for drug possession, 55% of convictions and 74% of prison sentences.
  • The number of black (non-Hispanic) women incarcerated for drug offenses in state prisons increased by 828% from 1986 to 1991.
Profiling also exacerbates the problem of felony disenfranchisement, state laws denying ex-felons the right to vote. According to a report by The Sentencing Project and Human Rights Watch, 13% of African American men have lost the right to vote, in some states much more. In April 1999, Congressional Black Caucus Chairman James Clyburn (D-SC) cited felony disenfranchisement and mandatory minimum sentencing as among the most serious civil rights issues facing our nation today.

As noted above, racial profiling is not the only form of profiling in use. In order to avoid 4th Amendment constraints against unreasonable search and seizure, drug enforcers have adoped a dizzying array of justifications -- contradictory, and accepted uncritically by the courts, in many cases -- in order to be able to stop and search anyone at anytime in the war on drugs. In No Equal Justice, professor David Cole of the Georgetown University School of Law, listed some of the reasons brought by police officers to justify searches made in drug cases:

On pages 48-49, Cole lists drug courier "profiles" that drug enforcement agents have presented as "probable cause" for conducting searches:
 

  • arrived late at night
  • arrived early in the morning
  • arrived in afternoon
  • one of first to deplane
  • one of last to deplane
  • deplaned in the middle
  • purchased ticket at airport
  • made reservation on short notice
  • bought coach ticket
  • bought first-class ticket
  • used one-way ticket
  • used round-trip ticket
  • paid for ticket with cash
  • paid for ticket with small denomination currency
  • paid for ticket with large denomination currency
  • made local telephone call after deplaning
  • made long-distance telephone call after deplaning
  • pretended to make telephone call
  • traveled from New York to Los Angeles
  • traveled to Houston
  • carried no luggage
  • carried brand-new luggage
  • carried a small bag
  • carried a medium-sized bag
  • carried two bulky garment bags
  • carried two heavy suitcases
  • carried four pieces of luggage
  • overly protective of luggage
  • disassociated self from luggage
  • traveled alone
  • traveled with a companion
  • acted too nervous
  • acted too calm
  • made eye contact with officer
  • avoided making eye contact with officer
  • wore expensive clothing and gold jewelry
  • dressed casually
  • went to restroom after deplaning
  • walked quickly through airport
  • walked slowly through airport
  • walked aimlessly through airport
  • left airport by taxi
  • left airport by limousine
  • left airport by private car
  • left airport by hotel courtesy van
  • suspect was Hispanic
  • suspect was black female

It is our hope that the attention given to the problem of racial profiling will be accompanied by a larger rethinking of the war on drugs, and that more just, effective and compassionate drug policies will be put in place as the new century unfolds.

David Borden, Executive Director
Drug Reform Coordination Network
http://www.stopthedrugwar.org

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