Race, Crime and the Pool of Surplus Criminality: Or Why the

Author:Kenneth B. Nunn
Position:Professor of Law, University of Florida, Levin College of Law

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The War on Drugs1 has had a devastating effect on African American communities nationwide. Throughout the drug war, African Americans have been disproportionately investigated, detained, searched, arrested and charged with the use, possession and sale of illegal drugs.2 Vast numbers of African Americans have been jailed and imprisoned pursuant to the nation's tough drug trafficking laws, implemented as part of the War on Drugs.3 Indeed, in some Page 382 jurisdictions, the majority of African American men age thirty-five and under are within the grip of the criminal justice system.4 Nationally, more African American men go to prison than go to college,5 and African American males are incarcerated at a rate that is almost eight times higher than that for white males.6

Indeed, it appears that African Americans-and African American males in particular-are the real targets of the country's drug enforcement efforts.7 In the minds of the criminal justice system's managers, planners and workers, drugs are frequently associated with African American citizens and their communities.8

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The criminal justice system shapes its policies and practices according to this perception.9 Consequently, police expend greater resources and time looking for drug infractions in Black neighborhoods10 than in white neighborhoods and focus the bulk of their energies on Black suspects rather than white ones.

The targeting of the Black11 community by law enforcement agencies has produced enormously harmful, but entirely predictable, results.12 As a consequence of the War on Drugs, large numbers of African American males have been virtually erased from African American communities and incarcerated in prisons and jails. This mass incarceration of African American males has created many endemic problems for African American communities, including:

[T]he loss of male role models and fathers for African American youths; the loss of husbands and male companions for African American women; the loss of earnings and wealth for the African American community; the loss of membership of important African American organizations and institutions; the preclusion of the Page 384 educational and social development of the incarcerated; and the encouragement of the spread of AIDS.13

In addition, the police strategy of concentrating aggressive street-based law enforcement measures on the low income communities where the vast majority of African Americans live has only made drug dealing a more lucrative, if not dangerous, choice for young Black men seeking economic gain.14Consequently, there is increased conflict, violence, and death as new street dealers seek to replace those arrested by the police.15 In waging the War on Drugs, police have detained African American pedestrians and drivers without probable cause or reasonable suspicion, gained consent for searches through coercion, and conducted indiscriminate seizures of property and cash as proceeds of drug trafficking.16 These types of tactics have led to harassment and the curtailment of African American privacy rights.17 Moreover, aggressive law enforcement practices such as these can only contribute to the feelings of distrust that African Americans have toward police, courts, and the government generally.18

What made the War on Drugs become, for all practical purposes, a war on Blacks? In this article, I argue that the drug war's focus on the African American community was neither an accident nor a conspiracy. Rather, the drug war is simply a prominent example of the central role both race and the definition of crime play in the maintenance and legitimization of white supremacy. Race and crime, as two significant social phenomena, are linked in an endless cycle of oppression.19 What is defined as crime determines who is oppressed in American society and simultaneously legitimates that oppression.

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In this way, crime can mask racial oppression by allowing it to be represented as a legitimate response to wrongdoing. At the same time, labeling conduct that is associated with a particular racial group as criminal can create racial animosity toward that group.20

In addition to the role that the definition of crime plays in determining who is oppressed, crime also defines the limits and form of mainstream law-abiding society. The definition of crime, then, is eminently political. Consequently, its manipulation by politicians and citizens' groups alike is a well-known feature of American political life. For its part, race helps establish the boundaries of criminality and imbues it with a sense of political urgency. Race provides the contours of a discourse of threat that supplies the social phenomenon of crime with power and political significance.21

The symbiotic relationship between race and crime can be explained further by reference to a concept I call "the pool of surplus criminality."22 This concept recognizes the cyclical connection of crime-to race-to culture. The concept of surplus criminality holds that African people constitute a pool of surplus, or inchoate criminals in the collective psyche of white America. In times of crisis, when there is a need to reinforce the solidarity of the white community, these inchoate African American criminals can be turned into fully perceived wrongdoers. The pool of surplus criminality concept asserts that African American criminals are needed as scapegoats for problems and threats perceived by the white community, and are thus essential to the constitution of American culture.23

In this article, I use the concept of the pool of surplus criminality to explain the drug war's focus on African Americans. I argue that faced with a perceived drug problem, white Americans naturally identified African people as the source of that threat and targeted them for police harassment and penal control. First, I point out the ways the drug war may be construed as a race war.24 I review the drug war's disproportionate impact on the African American community,25evidence that policy makers anticipated the drug war would disproportionately harm the African American community,26 and the historic connection between drugs and racial stereotyping.27 Next, I explore the connection between race and crime at the theoretical level. I show how race and crime define and reinforce each other and the role they play in construction of American Page 386 culture.28 Finally, I describe the pool of surplus criminality.29 I show how the pool of surplus criminality explains why the drug war targeted African American communities and why, consequently, African Americans will always be treated unfairly by the nation's criminal laws.30

I Drug War As Race War

The War on Drugs that has been a centerpiece of American foreign and domestic policy over the past two decades should not be viewed as a war against a particular collection of inanimate objects. The War on Drugs in this sense is but a convenient, yet inaccurate, metaphor. Instead the War on Drugs should be understood as a special case of what war has always been-the employment of force and violence against certain communities, and/or their institutions, in order to attain certain political objectives.31 Race has played an important role over the years in identifying the communities that became the targets of the drug war, consequently exposing their cultural practices and institutions to military-style attack and police control.32 Although the drug war has certainly sought to eradicate controlled substances and destroy the networks established for their distribution, this is only part of the story. As I shall explain, state efforts to control drugs are also a way for dominant groups to express racial power.33Before addressing the historical and culturally entrenched connection of drug control and race, I first want to explore the origins of the most recent round of American anti-drug policies-the so-called War on Drugs-and examine the impact of these policies on African American communities.

A The War on Drugs
1. Origins of the Drug War

In October of 1982, President Ronald Reagan declared war on drugs.34 Page 387 Speaking to the nation in his weekly radio address, Reagan promised a "planned, concerted campaign" against all drugs-"hard, soft or otherwise."35 Reagan described his campaign in military terms, using words like "battle," "war,"...

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