The past is never dead; in fact, it’s not even past. – William Faulkner

In an incredible (and true) story, a 19 year-old New York University undergraduate student was recently arrested and charged with committing three felonies, including criminal sale and possession of a controlled substance, and criminal sale of a controlled substance on or near school grounds – each charge carrying a maximum sentence of 25 years in prison. The undergraduate student sold high-grade marijuana, cocaine and hallucinogenic mushrooms to an undercover New York City police officer on eight separate occasions from the lobby of her dormitory.   But that’s not the incredible part.

Despite facing up to 75 years in prison for her offenses, the student, a white female from a wealthy family, will actually never see a prison cell if she satisfies the gracious terms of the deferred prosecution agreement brokered between a Manhattan District Attorney and the defendant’s private attorney.  The sweetheart deal – brace yourself for this one – includes 10 months at a drug rehabilitation center in Idaho followed by 8 months of work or school, and 5 years probation.  Moreover, she will be permitted to plead guilty to lesser charges (perhaps misdemeanors) in 2006, pending successful completion of her “sentence.”  Perhaps most importantly, her case was handled by state, rather than federal, authorities, allowing her to avoid severe federal mandatory minimum laws that would have likely resulted in a lengthy prison sentence. 

What is striking about this story is that the district attorney treated this white offender’s crimes as a public health problem requiring treatment and rehabilitation rather than incarceration – an approach that should be available to all drug using offenders on the same terms.  This story presents a vivid illustration of the fact that the architects of America’s “war on drugs” never contemplated ensnaring wealthy, white, female, college students in their dragnet.   

In America’s inner cities, however, where the “war on drugs” is waged against low-income Black and Brown people, mass incarceration rather than treatment and rehabilitation guides police drug enforcement strategies.  In fact, the criminal justice system harbors a deeply held belief that, unlike many white offenders, Black and Brown offenders are beyond rehabilitation. 

But America’s present obsession with the mass incarceration of Black people is by no means a recent phenomenon.  Indeed, as historian David Oshinsky notes in his compelling book, Worse Than Slavery, America’s endeavor to warehouse Black folks in cages has deep historical roots that can be traced back to the conclusion of the Civil War.

In 1865, the South attempted to rebuild its bankrupt economy after it suffered a humiliating defeat at the hands of the North. Institutions like Mississippi’s Parchman Farm were quite literally transformed from slave plantations into prisons, intended not to rehabilitate offenders, but to produce revenue for a state that had lost its greatest economic resource:  free Black labor.

In an attempt to regenerate the South’s labor supply by incarcerating as many Blacks as possible, Southern legislatures quickly passed acts known as “Black Codes,” which listed specific crimes for free Blacks only, including “mischief” and “insulting gestures.”  Not surprisingly, through enforcement of the Black Codes conviction was almost always imminent for Blacks accused by white men or women of the slightest offense.

As convictions mounted, Southern jails turned Black.  Once incarcerated, the labor of former slaves was  “leased” to private parties, often to perform the same tasks as they did during slavery.  Local sheriffs made profits responding to “crime waves” by arresting Blacks, judges were awarded cash bonuses for convictions, jails profited from charging leasing fees and planters profited from Black labor.  Mass incarceration became the “cash crop” of the South.

Of course, white men rarely sent fellow white men to jail even for serious crimes like murder, and when they did, it was not for long.  Southern culture taught that to deny a white man his liberty was to treat him like a slave.  And to deny a white female her liberty, irrespective of her crime, was virtually unheard of.

Against this historical backdrop, it is not surprising that today, in the era of the “war on drugs,” Black people comprise nearly half of our nation’s swelling incarcerated population of 2.1 million people, notwithstanding the fact that Blacks represent only 13% of the country’s overall population. 

These absolute numbers translate into catastrophic rates of imprisonment for Black men, with 1 in every 21 adult Black men incarcerated on any given day.  For Black men in their late twenties, the figure is 1 in 8.  Given the current trends, The Sentencing Project reports, 1 in every 3 Black males born today can expect to go to prison in his lifetime.

While the incarceration rate is lower for Black women, who represent the fastest growing imprisoned population, the racial disparities are equally dramatic.  Black women comprise nearly half of the nation’s incarcerated female population of about 150,000.  If current trends continue, 1 in every 18 Black females born today can expect to go to prison.

Federal sentencing guidelines contribute to the over-incarceration of the Black community by requiring harsher penalties for drug offenses that Blacks are more likely to be convicted of.  These guidelines treat crack cocaine as being one hundred times worse than powder, despite the fact that each gram of powder produces .89 grams of crack.  Possession of 500 grams of powder cocaine, but only 5 grams of crack, results in a mandatory minimum sentence of 5 years. 

Among all controlled substances, crack is the only one with a federal mandatory minimum sentence for a first offense of simple possession.  As a result, crack users and dealers, who overwhelmingly tend to be Black, receive more severe penalties than users and dealers of powder cocaine, who tend to be white.

As intended, targeted law enforcement techniques have resulted in Blacks constituting more than 80% of crack defendants, despite the fact that approximately two-thirds of drug users in the general population are white.  Consequently, 57% of all drug offenders in state prison, and 41% of federal drug offenders, are Black.

Kemba Smith was a casualty of America’s “war on drugs.”  Like the New York University student, Kemba was a college student in 1995 at Hampton University.  But unlike the New York University student, Kemba never handled or sold drugs but was in an abusive relationship with a drug dealer.  Unlike the New York University student, Kemba is Black, which is a critical distinction. 

Law enforcement spent months trying to make a case against Kemba’s boyfriend, but he was murdered before police could catch him.  Incredibly, Kemba was sentenced under federal sentencing guidelines to nearly 25 years in prison for her “involvement” in the crack cocaine conspiracy.  Although prosecutors admitted that she had never sold drugs, Kemba was held accountable for the crack cocaine distributed by her boyfriend.  It wasn’t until President Clinton granted Kemba’s petition for clemency that she was finally freed after serving 6 ½ years of her sentence. 

The contrast between the stories of these two young women – one white, one Black – and the criminal justice system’s treatment of them is as stark as day and night.  It is the result of policies that wage “war” on one community and treat “epidemics” in another.  Until we expose the color of justice, the color of incarceration, and the harmful racial undercurrent of our criminal justice philosophies, we will continue to be a nation that attacks its people of color, pardons the transgressions of the privileged, and builds an economy that thrives upon caging Black bodies.

Ryan Paul Haygood is an attorney in New York City.

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