Reconstruction Sentencing: Reimagining Drug Sentencing in the Aftermath of the War on Drugs

RECONSTRUCTION SENTENCING: REIMAGINING DRUG

SENTENCING IN THE AFTERMATH OF THE WAR ON DRUGS

Jelani Jefferson Exum*

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1685

I. THE NEED FOR RECONSTRUCTION: THEN AND NOW. . . . . . . . . . . . . . . . 1687

II. UNDERSTANDING THE WAR ON DRUGS: THE WEAPONS, THE TACTICS, AND

THE CASUALTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1691

III. WHY INTERPRETATION MATTERS: A LESSON FROM THE THIRTEENTH

AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1698

A. The Thirteenth Amendment: Original Interpretation . . . . . . . . 1698

B. Reinterpreting the Thirteenth Amendment: An Opportunity for

Reinvigoration and Promise for the War on Drugs . . . . . . . . . 1702

1. The Thirteenth Amendment Reinvigorated: Protection

Against Racial Prof‌iling . . . . . . . . . . . . . . . . . . . . . . . . . 1704

2. The Thirteenth Amendment Reinvigorated: Challenges to

Drug Sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1707

IV. APPLYING THE LESSON BEYOND THE THIRTEENTH AMENDMENT. . . . . . . . 1712

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1714

INTRODUCTION

The year is 2020, and the world has been consumed by a viral pandemic, social

unrest, increased political activism, and a history-changing presidential election.

In this moment, anti-racism rhetoric has been adopted by many, with individuals

and institutions pledging themselves to the work of dismantling systemic racism.

1

If we are going to be true to that mission, then addressing the carnage of the failed

War on Drugs has to be among the top priorities. The forty years of treating drug

law offenders as enemies of society have left us with decimated communities and

have perpetuated a biased view of individuals in those communities. Of course, the

* Jelani Jefferson Exum is the Philip J. McElroy Professor of Law at the University of Detroit Mercy School

of Law. Her research focuses on sentencing reform, as well as issues of race in the criminal justice system. She

teaches Constitutional Law, Criminal Procedure, Sentencing, and Race and American Law, and is on the

Editorial Board of the Federal Sentencing Reporter. She would like to thank her husband, Lowen Exum, for

helping her to f‌ind the space and time to write this Article while sheltering at home during the COVID-19

pandemic with their three sweet children, Zora (age 7), Xavier (age 5), and Isaiah (age 2). © 2021, Jelani

Jefferson Exum.

1. For an example of the discourse concerning dismantling systemic racism that was sparked in June 2020, see

N’Dea Yancy-Bragg, What is Systemic Racism? Here’s What It Means and How You Can Help Dismantle It,

USA TODAY (June 15, 2020, 9:33 AM), https://www.usatoday.com/story/news/nation/2020/06/15/systemic-

racism-what-does-mean/5343549002/.

1685

bulk of the devastation waged by the War has been borne by Black

2

and brown

families. To begin the work of repairing the damage caused by overly punitive and

racially disproportionate drug law enforcement, we must make commitments to

actually end the War. Moreover, we must commit to reinterpret our Constitution to

protect those who suffered most from Wartime policies and those who are most

vulnerable to post-War retaliation. Dr. Henry Louis Gates, Jr. has written that “few

American historical periods are more relevant to understanding our contemporary

racial politics than Reconstruction.”

3

This Article argues that Reconstruction’s

modern relevance goes beyond politics and is especially applicable to the criminal

sentencing context where law and policy have been used to perpetuate racialized

oppression. With that in mind, this Article uses the promise and pitfalls of the

Reconstruction Era as a model for reimagining drug sentencing in the aftermath of

the War on Drugs.

The War on Drugs off‌icially began in 1971 when President Nixon targeted drug

abuse as “public enemy number one.”

4

The goal of the war rhetoric was clear:

identify drug abuse and the drug offender as dangerous foes to the law-abiding

public and mandate military-like tactics to contain and defeat them. Criminal sen-

tencing would come to be the weapon of choice used in this urgent combat. As a

part of the war efforts, the Anti-Drug Abuse Act of 1986 was passed under

President Reagan, establishing a weight-based, highly-punitive, mandatory-

minimum sentencing approach to drug offenses that has persisted in some form for

the last four decades.

5

When the Act was passed, crack cocaine

6

was publicized as

the greatest drug threat, and crack cocaine offenders—the vast majority of whom

2. I have chosen to capitalize Black when used to refer to African Americans in any manner throughout this

Article. Using the lowercase “black” treats it like an adjective describing a color. Black people are rarely black,

and I believe that using the lowercase “black” as an adjective acknowledges that a descriptor was attached to

African people by white colonists in order to justify their dehumanizing treatment of those Africans. Capitalizing

Black elevates it beyond a mere color adjective that was originally meant to demean and embraces it as a

descriptor of shared history, culture, and struggle. This approach has also now been adopted by AP editors. See

Explaining AP Style on Black and White (July 20, 2020), available at: https://apnews.com/article/9105661462.

For a discussion of capitalizing Black, see Merrill Perlman, Black and White: Why Capitalization Matters,

COLUM. JOURNALISM REV. (June 23, 2015), https://www.cjr.org/analysis/language_corner_1.php; Barrett

Holmes Pitner, The Discussion on Capitalizing ‘B’ in ‘Black’ Continues, HUFFPOST (Nov. 4, 2014, 7:12 PM),

https://www.huffpost.com/entry/thediscussion-on-capitalizing-the-b-in-black-continues_b_6194626. For an

explanation of the growing trend among editors to capitalize Black, see Shirley Carswell, Why News

Organizations’ Move to Capitalize ‘Black’ is a Win, WASH. POST (June 30, 2020, 9:07 AM), https://www.

washingtonpost.com/opinions/2020/06/30/why-news-organizations-move-capitalize-black-is-win/.

3. HENRY LOUIS GATES, JR., STONY THE ROAD: RECONSTRUCTION, WHITE SUPREMACY, AND THE RISE OF JIM

CROW 5 (2019).

4. I explain more about this in my previous article, From Warfare to Welfare: Reconceptualizing Drug

Sentencing During the Opioid Crisis, 67 U. KAN. L. REV. 941 (2019); see also Timeline: America’s War on

Drugs, NAT’L PUB. RADIO (April 2, 2017), https://www.npr.org/templates/story/story.php?storyId=9252490.

5. Anti-Drug Abuse Act of 1986, § 1002, Pub. L. No. 99-570, 100 Stat. 3207, 3207-2 to -4 (codif‌ied as

amended at 21 U.S.C. § 841).

6. “‘Crack’ is the street name for a form of cocaine base, usually prepared by processing cocaine

hydrochloride [powder cocaine] and sodium bicarbonate, and usually appearing in a lumpy, rocklike form.” U.S.

SENT’G COMM’N, U.S. SENT’G GUIDELINES MANUAL, § 2D1.1(c) n.D (2018) [hereinafter SENT’G GUIDELINES].

1686 AMERICAN CRIMINAL LAW REVIEW [Vol. 58:1685