Orlin K. The war on drugs and racial health disparities in incarceration. HPHR. 2021; 30.
The current opioid epidemic, without a doubt, highlights a tragic and preventable loss of life in the United States. What is often left out of the discussion is the differential evaluation and treatment white Americans are given over Black Americans and people of color when it comes to substance use. Largely, we think of the current opioid epidemic as a public health crisis affecting middle-class, white suburban Americans nationwide. In contrast, substance users of the past were disproportionately portrayed as urban Black “addicts” and the national focus was on criminalization and vilification, subsequently putting generations of Black and Brown people behind bars and shunned from society and proper medical care. Today, the focus of substance use treatment is on prevention, treatment, and policy overhaul to help victims of the disease. This cultural shift is long overdue, however without properly addressing how we got here, the generations affected along the way, and how we need to treat those wronged moving forward, we not only fail to take responsibility for the nation’s past actions, but further perpetuate racist systems still in play today.
Policy enacted over the past century has engrained in United States institutions a structurally racist system of incarceration and treatment for people who use drugs. The roots of these discriminatory drug laws can be traced back to their creation which was designed explicitly to target racial minority groups. Prior to the anti-opium laws targeting Chinese immigrants in the late 1800s, there was very little government involvement in personal drug use and its criminalization did not yet exist.
The 1914 Harrison Act brought anti-cocaine and anti-heroin laws which, by design, discriminated against Black Americans. These new narcotics laws required written prescriptions from physicians to obtain both heroin and cocaine, and created criminal sentences for users caught without prescriptions. Heroin addicts, predominantly white women, obtained prescriptions and, when needed, were placed into asylums for treatment (another wrong, but for another paper). Black users often were not able to obtain prescriptions and were sent to jail, or driven further underground in their use habits, creating worsening addictions and repercussions (Kennedy, 2003; Race and the Drug War, n.d.). The differential enforcement of drug laws for Blacks compared to whites can be seen from the law’s earliest days through the treatment of the cultural stars. Harry Anslinger, the inaugural head of the Federal Bureau of Narcotics, and first American drug czar, famously targeted Billie Holiday, largely on racial grounds, for her heroin use. Contrastingly, America’s sweetheart of the day, Judy Garland, was treated by Anslinger and his narcotics bureau with leniency (Hari, 2015).
Similarly, Anslinger targeted Mexican Americans and Black Southerners through anti-marijuana laws and racially sensationalized “reefer madness” portraying those who used marijuana as possessed and demonic. Anslinger believed that outlawing marijuana would help keep Mexican Americans and Blacks, who he saw as the main users, in line, stating “Reefer makes darkies think they’re as good as white men. The primary reason to outlaw marijuana is its effect on the degenerate races” (Papillion, 2020).
In 1971, Nixon infamously began the formal war on drugs, increasing the size and presence of federal drug control agencies, passing mandatory sentencing and no-knock warrant measures. The supposed goals of these laws were to eliminate supply and demand for illicit drugs. In truth, Nixon’s explicit intent was to criminalize the radical left and Black people for marijuana and heroin use, disrupting their communities and generating long-lasting and far-reaching negative outcomes (A Brief History of the Drug War, n.d.). Leading to New York’s Rockefeller Drug laws of the 1970s, these racially discriminatory laws, purportedly meant to target dealers, instead resulted in four times the number of felony charges for small amounts of possession, usually on the scale of personal use (Human Rights Watch, 2016).
The 1980s ushered in the well-crafted era of hysteria over crack cocaine through Regan’s racially stratified zero tolerance drug laws. Though chemically identical, crack was portrayed as exponentially more harmful than cocaine. And, though used at the same rates by both Blacks and whites, crack has been depicted as the urban Black user’s drug; “crackheads” wreaked havoc on innocent (white) individuals, neighborhoods, and communities. Cocaine, on the other hand, was portrayed as the white person’s drug, whose users imposed little harm on the community and often were portrayed as highly successful business men in pop culture (Netherland & Hansen, 2016). Crack continues to carry with it much harsher policing, enforcement, and sentencing than cocaine: in 1986 the possession of five grams of crack cocaine incurred the same five-year minimum sentence as 500 grams of powder cocaine (Mullen et al., 2020). The penalties caused vastly more Black users to be sent away on higher level charges for longer periods of time.
Though many of the specific laws and policies Nixon and his successors enacted have since been mitigated or removed, institutionally racist practices and the stigma left from their implementation are still in use today. Drug laws that are written as race-neutral are still enforced in racially discriminatory ways resulting in disproportionate numbers of Black people behind bars (Cole et al., 2018). Evidence of this abounds, the following are only a handful of examples. Federal sentences for Black men are approximately 20% longer than those of whites convicted of similar crimes (Cole et al., 2018). Although Black Americans are no more likely than whites to use illicit drugs, they are up to six times as likely to be incarcerated for drug-related offenses (Netherland & Hansen, 2016; Human Rights Watch, 2016). A 2017 study found Blacks were convicted of drug related charges significantly fewer times than whites but had significantly more sentences resulting in incarceration and served longer sentences compared to whites. The same study also found Blacks were more likely than whites to have been arrested most recently for drug sales, but no statistical race difference was seen in self-reports of ever having sold drugs (Rosenberg et al., 2017). Gender differences also exist: Black women are twice as likely as white women to be sentenced to prison for drug violations; Black women are 10 times more likely than white women to be reported to child welfare (Women, Prison, and the Drug War, 2018). And, despite evidence showing lower rates of recidivism for those mandated to drug treatment rather than imprisoned, Black users are still less likely to be given this ruling (Cole et al., 2018).
In New York City where possession of marijuana is no longer illegal, police issue citations and arrests in Black and Brown neighborhoods at higher rates than white neighborhoods (Race and the Drug War, n.d.). Black Americans today are still more likely to be incarcerated on crack related charged than white Americans (Mullen et al., 2020). And, although better than the 100 to 1 sentencing disparity between offenses for crack and powder cocaine of the past, the current ratio remains at 18 to 1 (Cole et al., 2018). As written so well about in Michelle Alexander’s The New Jim Crow, the war on drugs acts as a contemporary racial control system, redesigning the racial caste in America (Alexander, 2010).
A fair amount of research exists examining a connection between incarcerated populations and inferior mental and physical health compared to non-incarcerated populations. It is known that disproportionately higher rates of HIV, hepatitis C, and tuberculosis are seen in people who have been incarcerated; people who are incarcerated have a higher likelihood of experiencing hypertension, asthma, arthrosis, and cervical cancer than those not incarcerated (Brinkley-Rubinstein, 2013). However, there is little research that specifically looks at racial health disparities of individuals both during and after incarceration. Of the research that does exist, few take into consideration the racial disparities which existed prior to incarceration as factors affecting unequal health statuses of those imprisoned. And, to the best of my abilities, I was unable to find any research or data related to differential experiences of those incarcerated for drug-related charges compared to other charges.
For example, Borysova et al. (2012) discuss socio-behavioral aspects such as economics, health care utilization and quality, diet, exercise, exposure to toxins, and physical environment, along with biological conditions like skin color, genes, and birth weight leading to racial and ethnic health disparities in imprisoned populations, yet fail to critically evaluate the context which play into these factors. As the nation begins to reckon with this past, more research is needed in order to properly address it.
With the deficiency of research and data directly linking racial health disparities to incarceration, evaluating proxies for direct health outcomes can provide some insight into the racial health disparities of people incarcerated on drug related charges. Imprisonment for drug-related charges has a range of long-term consequences including exclusion from federal welfare and financial aid programs, public housing evictions, denial of public assistance, disqualification from a range of occupational licenses and business loans, and a potential loss of voting rights (The Drug War, Mass Incarceration, and Race, 2018). Formerly incarcerated people returning to the community with pre-existing health needs face increased barriers to employment, limited economic mobility, and increased health care costs due to their health conditions (Bui et al., 2019). In addition, formerly incarcerated people are more likely to engage in risky health behaviors (Porter, 2014). Because of these conditions, one’s sentence is effectively extended well beyond their period of incarceration, placing added barriers on formerly incarcerated individuals to regain stability outside of prison, often worsening their socioeconomic, physical, and mental health conditions.
For people of color who often already faced barriers related to housing, healthy foods, education, income equality, and affordable and comprehensive health care prior to imprisonment, it can be expected that these remaining penalties create higher burdens than those felt by their white counterparts’ post-incarceration. As Blacks are more often incarcerated on drug-related charges than whites and with harsher sentences, the connection can be made that incarceration itself is a racially stratified social determinant of health.
Healthy People 2030 lists incarceration as a key issue in the social and community context domain, yet fails to mention the role racially enforced drug laws has played in the booming prison population (Healthy People 2030, n.d.). Mass incarceration reflects systemic and institutional racism put in place by laws driven by incentives to disadvantage minority populations. There is plenty of work yet to be done to address these health disparities.
Blanket evaluations of prison populations fail to take into account the disproportionate number of Blacks who are incarcerated, nor antecedent factors in place prior to imprisonment. It is evident that to truly evaluate the impacts of incarceration and racial health disparities, more research in the area is needed.
The Health Parity and Addiction Equity Act of 2008 and provisions included in the Affordable Care Act increased access and integration of mental health and substance use treatment greatly. Legislation outcomes, though still in their infancy, provide little proof that racial health disparities have been significantly improved since their implementation (Buchmueller & Levy, 2020). The 2016 Comprehensive Addiction and Recovery Act and 21st Century Cures Act supports decriminalization of substance abuse, encourages court sentences to drug treatment programs rather than incarceration, increases the number of and access to treatment programs, and provides funding and training for law enforcement around responding to people with mental illness and substance use disorders (Cole et al., 2018).
Much of the success of these policy interventions depends on the political will of those in power, yet their outcomes remain outside the control of those who are impacted. Still, public health workers can continue to move the needle on race-related incarceration health disparities. Continued research into existing disparities driving policy change in the right direction is imperative. Public health practitioners must also implement and continually evaluate evidence-based interventions to people of color with substance use disorders. Crucially, including those with existing substance use disorders in conversations and actions must be paramount.
Kate Orlin RN, CARN is a student at the Harvard School of Public Health, in Social and Behavioral Sciences. She is a harm reduction nurse focused on creating change through public health practice.