The Constitution of the War on Black People

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Paul Butler

Like most users of illegal drugs, I have never been caught.  I have lots of company, David Pozen reminds me, in The Constitution of the War on Drugs, his prodigiously researched take down of said war but not said constitution.  He references a 2007 National Survey on Drug Use and Health that revealed that more than 100 million Americans had used marijuana (during a time when it was illegal in all US jurisdictions), 36 million had tried cocaine and 34 million hallucinogens like LSD and Ecstasy (p. 151-152).  These are my peeps, the great majority of us gloriously unpunished for our criminal transgressions.  In that sense, the phrase “war on drugs” suffers from the same imprecision as the phrase “mass incarceration.”  Scholars have observed that it’s not actually the masses that are being incarcerated at obscene levels but rather Black people.  Likewise, the war on drugs has been principally waged not so much on drugs but on people of color, especially Black people. 

Calling it a war on Black people might sound histrionic and conspiratorial but that’s not the main problem.  Lots of things happen to Black people that sound histrionic and conspiratorial, but they still happen.  The main problem with calling the war on drugs a war on Black people is that it sounds overinclusive.  I am Black and I have never been caught using illegal drugs the many times I have used them.  My experience as a prosecutor, which included a year locking up drug “offenders” in Washington D.C. taught me that the people who get caught are sometimes foolhardy – for example, getting high in public places in one of the most policed cities in the world, or unlucky.   Most Black users, like users of other races, have the good sense to indulge in private spaces, usually far from the prying eyes of law enforcement.  That’s how, playing the mind games familiar to Black prosecutors whose work mainly consists of locking up Black people, I justified prosecuting people for weed crimes when I had committed them myself.   My defendants, I told myself, were stupid to get caught.  In contrast, I stopped smoking weed when I began enforcing anti- drug laws, not based on any abstract concern about hypocrisy but because my employer, the United States Department of Justice, required random drug testing of its staff.

I resumed my acquaintance with recreational drugs when I started law teaching, which some people would say explains a lot.    At that point the relationship became professional as well as personal.  My first legal scholarship, which Pozen’s book references, argued in favor of nullification, by Black jurors for Black defendants who were guilty of non-violent offenses, particularly drug crimes.  I wrote other articles that positioned drug users as the choir boys and girls of criminal justice reform, in opposition to violent offenders, some of whom, I said, needed to be “under the jail.” I actually wrote something that dumb, which you could say is evidence of brain damage from long term cannabis consumption, although I feel like alcohol should get some of the blame.   Now I understand that many of my academic critiques of the war on drugs apply as well to using the carceral system to deal with people who have caused harm, including that treatment is a more productive response than punishment, and that even if punishment is appropriate, US sentences are way too long.  Rachel Barkow, in her fine review in this series, makes a related comparison – that the Supreme Court’s reluctance to reign in the excesses of the war on drugs is a subset of its unwillingness to reign in the legal apparatus that has produced mass incarceration, including excessive sentencing.  I would add another denominator: the Court’s race jurisprudence.

Much of my academic writing has focused on race, including a debate I entered into with the law professor Randall Kennedy in the Harvard Law Review.   Kennedy’s book “Race, Crime, and the Law” contained a chapter pushing back against the common assertion that the draconian penalties for crack cocaine, compared to powder cocaine, are “racist.”  Kennedy argued that a racist law would burden most members of a race, and the crack laws only penalized users and sellers, a minority of Black people.   I find Pozen’s analysis on the role of anti-Black racism in the war on drugs more illuminating than Kennedy’s, but still not satisfying.   For most of  the remainder of this riff on Pozen’s  engrossing and occasionally maddening book, I’ll explain why.

But first a note about why I used drugs.  It’s because they can be quite fun.  I’m excited to make this point because it’s one I haven’t made before in a professional setting. My work on the massive social and legal costs of prohibition has been reluctant to reckon with pleasure. Pozen makes the same observation about the modern Supreme Court’s jurisprudence. 

One of Pozen’s “motivating assumptions” is that there is no “real dispute that illicit drugs ‘provide great pleasure to many, including many who are not in any serious sense addicted.” [p. 15]. This launches his book’s righteous fight for our – at least us pleasure seeking cool kids -right to party. 

The phrase “pursuit of happiness,” Pozen observes, appears in the Declaration of Independence but not in the text of the Constitution.  One of the “constitutional failures” he uncovers is the Court’s failure to find a right to drug use based on the same substantive due process analysis that determined cases like Roe v. Wade,  Griswold v. Connecticut and Lawrence v. Texas.   The series of state and federal cases prohibiting punishment of some private consensual actions has never been extended by the US Supreme Court to drugs, for interpretative and political reasons that Pozen mainly convincingly explains and convincingly rebuts.  

Although Pozen uses Lawrence v. Texas as an example of the Court’s willingness to find a right to be left alone in some spheres, I want to argue that Justice Kennedy’s opinion illustrates some of the same discomfort with pleasure, and same “legal conservatives’ skepticism of freedom as libertinism” that Pozen  locates in the Court’s pro-prohibition canon.   The Texas statue invalidated in Lawrence was all about sex.  It prohibited, among people of the same gender,  “Any contact between any part of the genitals of one person and the mouth or anus of another person; or the penetration of the genitals or the anus of another person with an object."   Justice Kennedy’s opinion, in contrast, did not have much to say about sex.  As Justice Scalia’s dissent pointed out, Kennedy seemed unwilling to state a fundamental right to oral and anal sex.  Instead, he waxed eloquent about liberty “in its spatial and more transcendent dimension.”

Pozen’s pithy description of the Court’s lust for drug prohibition is also true of Justice’s Kennedy’s reluctance to embrace the joy of sex: “It didn’t have to be this way.”

The first draft of Kennedy’s opinion stated “The sexual instinct is of endless fascination for the human. Its beauty and power are best respected when the individual has substantial freedom to explore it to attain a better understanding of the concept of self and the place he or she has in a larger universe.”

This language is essentially a judicial endorsement of the eros of what Texas lawmakers termed “deviate sexual intercourse.”  It’s also kind of hot.  If you have never had sex so good that it caused you “to attain a better understanding of the concept of self” and the place you have “in a larger universe,” Justice Kennedy thought that you need “substantial freedom” to explore until you reach that peak of “beauty” and “power.”   The justice’s dicta would have been powerful support for Pozen’s lawyerly arguments against prohibition because I have definitely done drugs that created that effect. 

Even though the criminal law at issue only applied to same gender sexual contacts – Texas legislators apparently were cool with heterosexual mouth to anal-Justice Kennedy’s fantasy was inclusive.  He embraced all us sexy beings, gay straight, whatever.

Alas, Kennedy appears to have changed his mind.  Here’s the revision that made it to the Supreme Court Reporter:   “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”

The devolution of Kennedy’s sex talk, from shouting out the “beauty and power” of the “sexual instinct” and the necessity of “substantial freedom to explore it” to discounting gay sex as “but one element” that lets “homosexual persons” fashion “enduring” relationships is an example of the dynamic of fear of pleasure that Pozen offers as one way of understanding the Court’s support for the War on Drugs.  The irony is that even as the Court advanced privacy rights in Lawrence, it separated those rights from the pursuit of happiness.  If, as Justice Brennan’s dissent in McCleskey suggested, the Court was worried about “too much justice,” in Lawrence Justice Kennedy seemed worried about too much joy.

A second irony of Justice Kennedy’s opinion is that the petitioners, John Lawrence and Tyrone Garner, were not trying to fashion an “enduring” “personal bond.”  They simply hooked up.   Kennedy does not share that fact in his opinion, and he says nothing about race.  Is everything race?  In the United States, yes.  I’ll use the story of the arrest of Lawrence and Garner as an illustration, and then end this review with a lamentation of Pozen’s failure to fully appreciate that significance of race in his book.

In Justice Kennedy’s version of the facts,  “In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, resided.” 

Here’s what actually went down. On the evening of  September 17, 1998 Garner, an African American man, and his white boyfriend Robert Eubanks were visiting Lawrence, a white man who was a friend of Eubanks.   Eubanks got mad that Lawrence was making moves on Garner and announced that he was leaving the apartment to purchase a soda.  Instead, he called the police with the lie that  “a Black male was going crazy in the apartment and he was armed with a gun.”.  Four cops responded and entered the apartment with their firearms drawn.  Two of the officers reported seeing Lawrence and Garner having sex and arrested them for deviate sexual intercourse.

In other words, Eubanks, a 1980’s version of who we would now call a “Karen,” exploited the ability of people in the United States to summon an armed response from the state to address their real or made-up anxiety about Black people.  This invocation of anti-Black racism led to an important advancement in the rights of LGBTQ people.  That part of the story is usually left out of analysis of Lawrence.[1] 

Pozen certainly understands the impact of racism on the Court’s jurisprudence on drugs. He devotes a chapter to “Racial Equality,” which includes statements like “[I]t is almost impossible to see how a claim of racial discrimination in drug policy could succeed in court today. Unless the plaintiff is white.”  The chapter is compelling on the racial motivations involved in lawmaker’s choices about which drugs to criminalize.  Anti-Chinese bias inspired the nation’s first prohibition – of opium, then prejudice against Blacks caused cocaine to be criminalized, and  then racism directed at Mexican immigrants led to punishing marijuana users and sellers.  Pozen also acknowledges that some successful decriminalization campaigns have been “aided by the ‘whitening’ of certain drugs popular image.”   

Nonetheless, Pozen sets forth a lengthy disclaimer about the “complexity” of drug policymaking and enforcement to make the point that the war on drugs should not be “reduced to race.”   He asserts that there are important non-racial explanations, including concerns about public health, “class and religion, as well as more specific material and ideological formations such as the pharmaceutical industry, the medical establishment, Cold War geostrategy, and state and state and federal law enforcement lobbies.”  He quotes, with apparent approval, the historian Kathleen Frydl’s claim that “ ‘a perspective informed by historical materialism, giving primary attention to economic interests, has more to offer in clarifying causality’ than does race per se.”

Of course non-racial factors have contributed to the war on drugs.  I don’t know of any scholar or activist who would dispute this claim.  My concern is that Pozen’s caution about relying too much on race, his laundry list of other factors, and  his reference to Frydl’s argument about “economic interests” being more important than race as a way of understanding the war on drugs is, itself, reductive.  It caricaturizes the scholarship and activism that has animated the emerging public, non-elite critique of the war on drugs.  It also discounts the unique role of white supremacy as a determinant of the US law and society and thus, the lived experiences of people of color.  It is virtually impossible to “reduce” to race any feature of life in the United States, and certainly any feature of criminal law.

The data tells a stark story.  In 2000, black people were incarcerated for drug crimes at 15 times the rate of whites[2].  Black adults made up 27 percent of drug arrests in 2019.   This was an improvement compared to 35 percent in 2009.[3] But the 2019 figure is more than twice the Black share of the US adult population which is 12 percent.[4]    There is no evidence that Blacks use or sell drugs more than other groups.  There is also no consensus among criminologists about the reason for the decline in disparities, but it must be observed that it occurred during a time of activism against the war on drugs, activism that was largely focused on racial justice.  

It's weird that, in a chapter about drugs and racial equality, Pozen never discusses the opioid epidemic and the different policy and legal responses to it than to other drug crisis. Although many Blacks suffer from addiction to opiates, the public face of an opiate user is white.   Not coincidentally, Congress has  adopted a public health approach to this epidemic. It has channeled billions of dollars to increasing access to care and treatment. According to estimates cited by the Congressional Budget Office, total federal appropriations to address the opioid crises rose from $2.1 billion to $6.1 billion between 2017 and 2020.[5]

Increased attention by the Executive branch to the crisis has been mostly non-carceral.[6] Instead of criminalizing the issue by increasing arrests and jail sentencing there has been an “unusually consistent focus on reigning in provider opioid prescribing.”[7] Examples of such efforts include prescription monitoring programs and take-back programs for unused medication.[8] Other non-carceral efforts include increased dissemination of the opioid overdose reversal medication naloxone, and the passage of Good Samaritan laws which shield those who call for emergency assistance during an overdose, from drug charges.[9]

Even Donald Trump.  Responding to a grieving father who had lost his son to a heroin overdose, he acknowledged that “once you get hooked, it’s really tough.”[10] “In all fairness to your son, it’s a tough thing. Some very, very strong people have not been able to get off it.”  (Trump had a solution to the crisis: “we’re going to build a wall, number one, we’re going to build a wall, and it’s going to be a real wall.”[11]).

In another chapter, Pozen makes the bizarre claim that “If there was an interest convergence between white and Black elites on drug doctrine…It proved more jurispathic than jurisgenerative, as both groups saw little to gain from new constitutional rights relative to their potential loss in security and status.”  There’s no footnote to support this and it’s hard to see what historical evidence would.  The reality, as scholars like Devon Carbado have noted, is that even when Black elites have sought the status of being considered “law abiding” to avoid violent interactions with the police, that status has eluded them, not because they are criminals but because they are Black.

Pozen may be thinking of books by James Forman Jr and Michael Javen Fortner, which he references in the race chapter, but it’s a challenge to read those books as augmenting Pozen’s claim.  Neither book discusses “new constitutional rights.”  Forman’s book actually suggests a divergence rather than convergence between white and Black elites, with white elites in the District of Columbia more likely to support marijuana decriminalization than Blacks. Fortner’s book, “Black Silent Majority: The Rockefeller Drug Laws and the Politics of Punishment” emphasizes, as its title suggests,  that it was working class Blacks in Harlem, rather than “elites” who supported tough punishment for heroin users. 

My concern about Pozen’s failure to fully account for the role of race in the war on drugs is not semantic, but I don’t think it undermines his book’s important contribution to constitutional law and criminal justice policy.  But deeper engagement with race might have yielded even more profound insights. For example, as I have noted, Pozen presents Lawrence and Obergefell as constitutional success stories, and wonders why the Court has not engaged the same creative jurisprudence to expand privacy and liberty rights with regard to drugs.  The law professor Russell Robinson might suggest that – you know where this is going – the reason is race.  Comparing the contemporary Supreme Court’s sexual orientation jurisprudence to its race jurisprudence, he finds it far more receptive to claims from relief from LGBTQ  folks than from people of color.

I appreciate that Pozen, unlike many white scholars, cites critical race theorists in his work, including Michelle Alexander and Derrick Bell.  Returning to his observation that the Court’s drug jurisprudence “didn’t have to be this way” I suspect that many crits would disagree, citing the same equal protection and other race cases as Pozen.  Indeed a book titled The Constitution of the War on Black People could make many of the same points about the Constitution and the Supreme Court as Pozen, including that the contemporary Court’s race jurisprudence defaults to anti-originalist interpretations, that it fails to incorporate methods that would make its holdings more consistent with the country’s professed values, and that its "controlling legal tests developed in ways that blunted their capacity to reckon with the damage done by" racial subordination.

I am not presumptuous enough to suggest that that might  be Pozen’s next book, although I would love to see him take his prodigious scholarly talents more explicitly to race, the great American dilemma, constitutionally and otherwise.  Still, on its own, The Constitution of the War on Drugs is a major achievement in legal scholarship.  I’m not as optimistic, even in the counterfactual way that Pozern posits, things could have been different on drugs with this Constitution and any Supreme Court, but much respect to Pozen for providing the justices with a more humane and liberatory jurisprudence, if only they wanted it.

Paul Butler is Albert Brick Professor in Law at Georgetown University Law Center. You can reach him by e-mail at Paul.Butler@law.georgetown.edu.