Racism baked into California’s drug prohibition laws

There are many ways to answer the question of whether the drug wars are racist, and all of them are "yes." In California, specific historical examples of racism are baked into the original purposes of drug prohibition, which is not 50 years old but 150. Racially targeted enforcement certainly followed from the laws' prejudicial intent.

Perhaps worst of all was the law itself and the structures of drug sentencing in particular. As the law grew more complex and terms of incarceration lengthened over the first half of the 20th century, arrays of drug penalties shrouded their cruelty in false precision. They appeared to rationally express the relative culpability of various criminal acts, but in practice they corresponded to race instead.

Chinese immigrants, with their imported smoking opium, were the earliest targets of criminal drug control. Opium den ordinances, such as San Francisco's in 1875 imposing a fine of $50 to $500 or a county jail term of 10 days to six months, tested the boundaries of the police power. (Could simply being in a place be a crime? Need an act occur, or evidence exist? What about smoking in the privacy of one's home?)

More to the point, outlawing opium was just one plank in a whole raft of anti-Chinese laws aiming to drive the immigrants out, an ultimately political platform built in a frenzy of working-class racial hatred during the economic recession after the Civil War. But the immigrants sued for their freedom, and sometimes won, citing U.S. treaties with China and the 14th Amendment.

Opium prohibition withstood constitutional challenges, drawing support from the white Protestants of the temperance movement, who argued that smoking opium would become as pervasive as drunkenness unless it was outlawed. These moral activists, abolitionists all, embraced equality in theory, but they still wanted to guard against foreign racial influences and so-called race mixing -- eugenicists all. The San Francisco ordinance, which served as the basis of a statewide ban in 1881, had passed immediately after leaders concluded that white men and women from the best local families were frequenting the city's opium dens.

Deciding a pair of opium cases, one regarding a Portland ordinance and the other an Oregon statute, District Judge Matthew Deady wrote in 1886 that everyone knew the intent of anti-opium laws was to "vex and annoy" the Chinese, not to cure them of the habit. Although drinking was far more destructive, Deady wrote, it was a familiar American custom; conversely, smoking opium was significant only to a few noncitizens. "Smoking opium is not our vice," Deady pronounced in both decisions.

State-level drug law enforcement began in earnest with 1907's revision of the Poison Act, forbidding the sale of morphine, heroin, opium or cocaine without a medical prescription on pain of a possible fine of $30 or more and a possible jail sentence of 15 days or more. Two years later, legislators added possession as an offense equivalent to sale and created a steeper penalty array for first, second, and third offenders. First and second offenses could be punished by fines, stints in jail, or both; but to be convicted for the third time was a felony requiring "not less than one nor more than five years" in prison, making it perhaps the first mandatory minimum felony drug sentence in the United States.

The Poison Act was enforced by pharmacy board "inspectors" who acted as the nation's first state narcotics squad. During the early 1900s, they developed many methods of drug law enforcement that are familiar today: entrapment by undercover agents, use of paid informants, warrantless raids ending in mass arrests, brutal searches and interrogations, and the seizure and forfeiture of property.

The real target of enforcement was unwanted people, not unwanted drugs. When marijuana was added to the list of drugs prohibited by the Poison Act in 1913, Pharmacy Board inspector and drug-bonfire inventor Fred C. Boden told the Los Angeles press that the new law was necessary to confront increasing use of the drug "as an intoxicant among a large class of Mexican laborers." Accounts of marijuana arrests over the next several years often identified the arrested person, the seized drug, or both as Mexican; the vast majority of all recorded arrestees had Latino surnames.

These ongoing reassurances to white voters that they would not be threatened by drug prohibition enforcement help to explain the remarkable public support for strict laws and harsh penalties. The punishment of opiate use intensified in 1920 after Prohibition went into effect. California immediately passed its own alcohol prohibition statute and significantly raised penalties for state drug law violators, both actions by referendum. To deal with the real or exaggerated threat of rising rates of injectable opiate use, the Legislature for the first time separated the crimes of drug possession and drug sale into two different categories, with much harsher punishment for sale.

The press, particularly the San Francisco Examiner, popularized the idea of the highly culpable seller versus the unfortunate user. Enormous evangelical congregations, civic groups such as the American Legion, women's clubs, and narcotics education groups joined in vilifying the seller of prohibited opiates, a figure framed as a wealthy scoundrel profiting from human misery. The most extreme rhetoric called for capital punishment for selling drugs, a violent and authoritarian solution that has echoed down through the years to the present day. But the two different charges of possession and sale did not in reality correspond to different acts. In San Francisco during the 1920s and 1930s, the 'seller' in any given arrest or hearing scenario was far more likely to be Chinese or Black than white, and many of these defendants were arrested and convicted of the sale of drugs without evidence of any transaction -- sometimes even without evidence of possession.

Formerly charged as a type of vagrancy, drug addiction was codified as a distinct crime in 1939. It remained, like vagrancy, a misdemeanor with a maximum sentence of six months in jail, but a ninety-day minimum was added and the option to punish by a fine was revoked. While this outcome appears to exemplify a reasonable judicial intervention amicably adopted by the legislative branch, law enforcers would soon bend the addict law to a more oppressive purpose. Prosecutions for misdemeanor addiction could succeed even in the absence of drug evidence, and those cases were tried in city courts, unlike possession and sale, which as felonies were tried in superior court. In addition, the addiction law produced a whole class of defendants who could easily be pressed into dangerous service on behalf of police.

The racially determined consequences of the user/seller/addict structure were resilient. In the Southern California suburbs, the conservative movement adopted anti-drug activism as one of its core purposes and made an ideology out of supporting law enforcement generally. These white activists demanded longer sentences for drug offenders, and the Legislature delivered them. In 1953, California adopted first-offense indeterminate sentences with 10-year, 15-year, and lifetime maximums and second-offense minimums of two, five and 10 years. The following year, the maximum sentence for selling was changed to life, and the second-offense minimum for selling was 10 years.

A deeply authoritarian and unconstitutional form of drug control was unleashed on Black and Latino neighborhoods in Los Angeles during the 1950s. Statewide adult narcotic arrests in 1960 numbered around 17,000, almost 12,000 of which occurred in Los Angeles County. Among these county arrests, some 39% arrested were white, 32% were Mexican American, and 27% were Black. Almost 1,300 of these defendants wound up in state prison, and about 5,000 served time in local and county jails. Not only were Mexican American and Black citizens arrested in numbers far greater than their proportions to the population, they were also incarcerated at higher rates for the same drug crimes, while white people were granted probation at the highest rate. In 1961, 84% of people incarcerated in California state prisons for narcotics crimes were from Southern California, and 60% of these were from the minority communities of East Los Angeles.

Brutal and unconstitutional enforcement in selected neighborhoods helped maintain racial segregation in Los Angeles during the civil rights movement. This fact was frequently noted by critics who likened the LAPD and sheriff's department to Southern police forces who were the brawn for massive resistance. These racist results were exactly what white voters expected when they demanded the escalation of drug sentences that were widely and openly applied according to race.