Black lives won’t matter without major drug law reform

The death of African-American man George Floyd in Minnesota has been a seismic global event. Sparking widespread protests in the United States and other countries, including Australia, Floyd’s death has prompted a renewed focus on various aspects of the criminal justice system, including police brutality and racial profiling. It’s renewed calls for major structural reforms, including calls to “defund the police”.

A growing chorus is calling for another kind of big structural change, too. Advocates want to see the decades-long prohibition on drugs overturned. Some have argued that black liberation is not possible without such reforms. Put simply, so the argument goes, we cannot make black lives matter until we end the war on drugs.

This isn’t a new call. It is, nevertheless, important to explain how the Black Lives Matter and drug law reform movements intersect, and to explain the relevance of this for Australia.

The racist history of drug prohibition

Policies to regulate and prohibit certain substances have a long – and complicated – history. As I’ve explained elsewhere, although the reason for prohibiting consumption of specific substances (such as cannabis or heroin) may seem self-evident and based on drug harms, drug prohibition is, in fact, far more complex than this.

For instance, the effects of drugs aren’t as straightforward, predictable or commonplace as we might assume. Forms of harm associated with drugs are complex, and shaped by a range of factors, including prohibition itself.

Importantly, the decision to prohibit certain drugs is bound up with racist ideas and ideals. Substances such as cannabis and opium were once legal and commonly used, for instance, but gradually became illegal because of racist ideas about consumption, sex and racial purity. Such ideas included fears about the use of opium by the Chinese, and about what might happen if African-American men were to consume substances in (or with) white women.

For instance, a leading bureaucrat in the prohibition movement once said: “There are 100,000 total marijuana smokers in the US, and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing result from marijuana use. This marijuana causes white women to seek sexual relations with Negroes, entertainers and any others.”

There’s clear and compelling evidence – in Australia and elsewhere – that the war on drugs is shaped by racism, and that it helps to reinforce racial disadvantage. 

It’s now more than 50 years since President Richard Nixon famously declared a “war on drugs”. Since that declaration, the terminology has entered popular and political vernacular. Many countries determined to win the “war”, including Australia, have expended significant resources in trying to deter drug supply and demand.

In 2016, one of Richard Nixon’s closest aides admitted that the decision to declare a “war on drugs’ was grounded in anti-left and anti-black sentiment, explaining that: “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the anti-war left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalising both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

Australia’s legal framework hasn’t been immune from these race-based logics. Professor Des Manderson’s landmark history of Australian drug law shows that both racism and sexism informed Australia’s earliest drug laws. For instance, South Australia’s Opium Act of 1895 was the first act of parliament anywhere in the world to prohibit the non-medical use of a particular drug.

Crucially, however, it applied only to Aboriginals. The rationale was that Aboriginal women needed to be “protected” from Chinese men, who may “lure” them through opium. Such race-based “paternalism” was mirrored in other Australian policies at the time, and thereafter.

Various laws prohibiting other drugs were passed in the decades that followed. Although these were extended to the rest of the population, descriptions of drugs, the people who consumed them, and the “threats” they posed to apparently “mainstream” white Australian life continued. In all of these ways, Manderson argues, our fear of drugs was predicated on our fear of “Otherness”. It became impossible to untangle drugs from race.

Racial disparities in law enforcement

There are also well-documented racial disparities in drug law enforcement, in both America and Australia. For instance, although black and white Americans reportedly use drugs at about the same rate, black Americans are four times as likely to be arrested for drug offences.

People of colour are more likely to be stopped, searched, arrested and convicted than white people. Mass incarceration of people of colour is also a significant problem in the United States. Nearly 80% of those who are in federal prison for drug offences are black or Latino.

The practices of police play a major role in these outcomes. But so, too, does the role of prosecutors. Research suggests that American prosecutors are twice as likely to pursue a mandatory minimum sentence for a black person charged with the same offence as a white person. In turn, these criminal sentences have lifelong consequences for people of colour, including by limiting their voting, employment and other rights.

Overdose deaths in the US and Canada have reached such a point that both nations have declared public health emergencies. The numbers are also on the rise in Australia.

Earlier this year, I hosted a thought leadership event through the Monash Law School, focusing on the specific role of the criminal law in the midst of this crisis. Keynote speaker Professor Leo Beletsky, from Northeastern University in Massachusetts, explained that in America, public authorities were increasingly turning to the criminal law to address the overdose crisis, treating overdose deaths as “homicides”, and prosecuting friends, family members and acquaintances.

In essence, these laws give prosecutors the power to prosecute people when drug overdoses occur, including those who sold or supplied drugs to the deceased. Beletsky argued that these prosecutions were flawed on numerous grounds, including because they undermine public health efforts to prevent drug overdoses.

Moreover, Beletksy explained that a “near majority” of these prosecutions involve a white “victim” and a person of colour as “dealer”. In this sense, Beletsky argued, the use of prosecutorial discretion continues to “ tell a racist tale”.

The Australian experience

Racial disparities are also at play in Australia. Many of our drug laws allow for the exercise of discretion. Policies in every Australian state and territory give police the power to “divert” people away from the criminal justice system for minor drug use and possession offences. People who are diverted may instead receive a small fine, some drug education or counselling. They will not be criminally sanctioned or receive a conviction. The specifics of these diversions policies differ, and each has slightly different eligibility criteria.

Recently, new data from NSW was released, suggesting significant race-based differences regarding diversion. Between 2013 and 2017, 82.55% of all Indigenous people found with smaller quantities of cannabis were pursued through courts, whereas only 52.29% of non-Indigenous people were.

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Read more: Drug decriminalisation: Time is right for action on UN commitment

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Last year, colleagues and I undertook a major national study on the use of diversion for drug offences. Interviewing police across the country, we sought to better understand the barriers and enablers to police offering diversion. We heard that race is a factor. For instance, some states and territories require people to admit a drug offence before they can be offered diversion. This is a special problem for Indigenous people; many are unwilling to admit crimes to police, for reasons including a lack of trust in police.

We also heard that diversion programs may not be well-suited to Aboriginal and Torres Strait Islander people. All of these barriers can be readily and easily addressed through minor policy reforms, and would likely lead to Indigenous people being diverted away from the courts more often.

Recently, further released data shows that Indigenous people are also significantly over-represented in the number of strip searches conducted by NSW police. This data shows that within a two-year period, 12% of all strip-searches were conducted on Indigenous people, despite them making up only 3.4% of the state’s population. The use of punitive policing measures such as strip-searches and drug detection dogs have been heavily criticised by experts in recent years, were the subject of critique by a NSW coroner last year, and may be the subject of a forthcoming class action.

These findings raise very important questions about potential racial profiling by police, and require urgent attention.

The history of public drunkenness offences in Australia is also tied to race, disproportionately affecting Aboriginal and Torres Strait Islander people. The recent inquest into the death of Aboriginal woman Tanya Day, while in police custody, underscores this point. Coroner Caitlin English found that the decision of a train conductor to call police on Ms Day was influenced by her Aboriginality and unconscious bias.

In a welcome but long overdue move, the Victorian government has committed to abolishing public drunkenness. It will replace it with a health-based response. As colleagues and I argue in forthcoming research, it’s vital that a replacement model does not introduce new, adverse consequences. The Victorian government appears to understand these risks and is keen to avoid them. The details of its new proposal are thus keenly anticipated.

We need drug law reform

As I’ve recently explained, there’s a growing global push for drug law reform. Although those who are advocating for change do so for diverse reasons, concerns about race and racism are at the heart of many of these calls.

There’s clear and compelling evidence – in Australia and elsewhere – that the war on drugs is shaped by racism, and that it helps to reinforce racial disadvantage. We simply cannot address race-based inequalities until we acknowledge this past and these links.

Black lives cannot truly matter without major drug law reform.