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.
[1] https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1147&context=faculty_articles
[2] William J.
Sabol et al., Trends in Correctional Control by Race and Sex, Council on
Criminal Justice, Dec. 2019, 8.
https://counciloncj.org/wp-content/uploads/2021/09/Trends-in-Correctional-Control-FINAL.pdf
[3] The Pew
Charitable Trusts, Drug Arrests Stayed High Even as Imprisonment Fell From
2009 to 2019, Feb. 2022.
https://www.pewtrusts.org/-/media/assets/2022/02/drug-arrests-stayed-high-even-as-imprisonment-fell-from-2009-to-2019.pdf
[4] Id at 5.
[5]Congressional
Budget Office, The Opioid Crisis and Recent Federal Policy Responses,
Set. 2022. https://www.cbo.gov/system/files/2022-09/58221-opioid-crisis.pdf
[6] Danielle R.
Fine et al., Societal Biases, Institutional Discrimination, and Trends in
Opioid Use in the USA, J Gen Intern Med, (2021), 36(3).
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7947135/
[7] Id. at 799.
[8] Hansen, supra
note 7.
[9] Id.
[10] Nick Gass, Trump
tries to comfort man who lost son to heroin, Politico, Jan. 2016.
https://www.politico.com/story/2016/01/trump-heroin-epidemic-217853
[11] Id.