bulk of the devastation waged by the War has been borne by Black
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.”
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.”
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.
When the Act was passed, crack cocaine
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.
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].
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