Taking a page from Richard Nixon’s playbook, the Biden-Harris Administration once again revs up the War on Drugs by targeting Black people.
The Biden-Harris administration recently announced that it will be expanding the War on Drugs by criminalizing menthol cigarettes, which are disproportionately enjoyed by Black people. (https://www.politico.com/news/2021/04/28/fda-menthol-cigarette-nationwide-ban-484899). Black and white people smoke cigarettes at similar rates – 16.8% of Black people smoke cigarettes, and 16.6% of white people smoke cigarettes – but Black smokers are more than three times as likely as white smokes to smoke menthol cigarettes (77.4% of Black smokers versus 23.0% of white smokers). (https://www.lung.org/quit-smoking/smoking-facts/impact-of-tobacco-use/tobacco-use-racial-and-ethnic)
According to President Nixon’s domestic policy chief John Ehrichman, Nixon’s declaration of a “war on drugs” in 1971 was designed specifically to target Black people (and hippies). “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 criminalizing 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.” (https://harpers.org/archive/2016/04/legalize-it-all/). Nixon’s War on Drugs has progressed over the decades, and has continued to be used to target and disproportionately punish nonviolent Black people. For example, white and Black people smoke marijuana at similar rates, but Black people are arrested for violating marijuana possession laws at four times the rate of white people. (https://norml.org/marijuana/fact-sheets/racial-disparity-in-marijuana-arrests/).
Joe Biden and Kamala Harris are both long-time supporters of the War on Drugs and mass incarceration. Harris worked for many years as a prosecutor in California, and as the Attorney General in charge of all the state’s prosecutors, during which time she imprisoned thousands of Californians for nonviolent drug offenses, opposed efforts to legalize marijuana, and declined to support Proposition 47, which reduced certain drug possession offenses from felonies to misdemeanors. Biden wrote many of the laws that ramped up the War on Drugs in the 1980’s and 1990’s, working tirelessly to enact more prisons, more incarceration, and tougher prison sentences for drug offenses, especially crack cocaine. When President George H.W. Bush proposed escalating the drug war in 1989, Biden went on national television and criticized the President for not cracking down even harder on drug sellers and users, stating “Quite frankly, the president’s plan is not tough enough, bold enough, or imaginative enough to meet the crisis at hand.” According to Biden, we needed both harsher punishments for drug dealers and to “hold every drug user accountable,” and President Bush’s plan “doesn’t include enough police officers to catch the violent thugs, not enough prosecutors to convict them, not enough judges to sentence them, and not enough prison cells to put them away for a long time.” (https://www.c-span.org/video/?8997-1/democratic-response-drug-policy-address)
Biden’s focus on targeting crack cocaine was notable in that crack cocaine was disproportionately used by Black people, while white people tended to prefer powder cocaine. An early crime bill crafted by Biden in 1989 created the sentencing disparity for crack and cocaine trafficking, and became known as one of the most racially slanted sentencing policies ever created. (https://www.washingtonpost.com/politics/how-an-early-biden-crime-bill-created-the-sentencing-disparity-for-crack-and-cocaine-trafficking/2019/07/28/5cbb4c98-9dcf-11e9-85d6-5211733f92c7_story.html). The law provided that distribution of just 5 grams of crack cocaine would carry a minimum 5-year federal prison sentence, while distribution of powder cocaine would trigger the same 5-year sentence only if the weight was at least 500 grams – a 100-1 sentencing disparity. The result was that many lower-level crack sellers were sent to prison, often shattering their families and ruining their lives, while equivalent powder cocaine sellers escaped the harsh punishment. According to Senator Cory Booker, Biden’s law “inflicted immeasurable harm on black, brown, and low-income communities.” (https://www.washingtonpost.com/politics/how-an-early-biden-crime-bill-created-the-sentencing-disparity-for-crack-and-cocaine-trafficking/2019/07/28/5cbb4c98-9dcf-11e9-85d6-5211733f92c7_story.html). Biden continued his quest to impose draconian punishments on Black people in the 1990’s. During a debate over a law that would eventually become Biden’s 1994 crime bill, Biden bragged that his plan was “much tougher than the president’s” and “provides for more penalties for death for more offenses than the [president’s] bill,” and that “we do everything but hang people for jaywalking.” (https://books.google.com/books?id=b6_DAwAAQBAJ&pg=PA140&lpg=PA140&dq=%22more+penalties+for+death+for+more+offenses%22&source=bl&ots=wdYdFuSeIh&sig=ACfU3U1jsv53PLI_PpdUUgT669hkSaR_FA&hl=en&sa=X&ved=2ahUKEwjllvLCg6PhAhXkUN8KHZw0CcYQ6AEwA3oECAYQAQ#v=onepage&q=%22more%20penalties%20for%20death%20for%20more%20offenses%22&f=false). According to Washington Post opinion writer Radley Balko, the “martial/incarceral state has had no greater friend in Washington over the last 35 years than Joe Biden.” (https://twitter.com/radleybalko/status/636170341275041792?lang=en)
Biden’s new plan to criminalize menthol cigarettes while allowing non-mentol cigarettes to be freely sold is reminiscent of his plan to target Black people with the 100-1 sentencing disparity between crack and powder cocaine. According to the CDC, menthol cigarettes are “just as dangerous” as non-menthol cigarettes. (https://www.cdc.gov/tobacco/basic_information/tobacco_industry/menthol-cigarettes/index.html). Accordingly, just as like with crack versus powder cocaine, Biden is choosing to crack down with harsh punishment on products disproportionately enjoyed by Black consumers that are no more dangerous than equivalent products disproportionately used by white consumers. And just like with crack cocaine, buyers and sellers of menthol cigarettes (disproportionately Black) will be forced into more violent confrontations with police and incarceration, while buyers and sellers of non-menthol cigarettes (disproportionately white) will be free to go about their regular business.
Once menthol cigarettes are prohibited, demand for them will not magically disappear. Instead, as we have seen in countless other attempts at drug prohibition, sales will just shift to the unregulated, untaxed, illicit market – which will then be controlled by gangs and criminal elements instead of regulated businesses. Because menthol cigarettes are overwhelmingly purchased and smoked by Black people, Black people will be disproportionately harmed by the new criminal punishments. As with other elements of the drug war, the new war on menthol cigarettes will inevitably lead to more police brutality, militarized police, no-knock raids, and prison sentences for peaceful, productive members of society. We have already seen how criminalizing cigarette sales can end up killing Black people. In 2014, Eric Garner was killed by New York police officers when they placed him in a prohibited chokehold while arresting him for selling loose, untaxed cigarettes. Biden’t proposed ban of menthol cigarettes will likely lead to many similar incidents.
Senator Cory Booker warned us that as the “architect” of the current criminal justice system, Biden is “not the right person to fix it.” (https://www.politico.com/story/2019/07/23/cory-booker-biden-criminal-justice-reform-1427064). As we now see with Biden’s proposed criminalization of menthol cigarettes, as well as his continued support for cannabis prohibition, both of which disproportionately harm Black people, it does not appear as if he has learned any lessons from his past failed policies. Perhaps an old dog can occasionally learn new tricks, but there is little evidence that Biden has changed his philosophy on a drug war that targets Black people for mass incarceration.
If Biden’s new War on Menthol Cigarettes is not the right answer then what alternatives are there to improve public health in this area? Many smokers end up substituting vaping products for cigarettes when given the option. Nicotine itself is not particularly harmful, and it is clear that vaping is much safer and healthier than smoking tobacco. By making menthol-flavored vaping products more readily accessible, many current smokers would likely be persuaded to completely switch from smoking to vaping, or to smoke less and supplement with vaping. This concept is knows as harm reduction, and applies equally to opiates and other potentially harmful drugs. California, however, recently ramped up the war on vaping by attempting to ban all flavored vaping products, including menthol flavors. (https://filtermag.org/california-vaping-flavor-ban/). This wrongheaded approach is likely to increase smoking and death rates, by making it more difficult for consumers to obtain safer alternative products. Thankfully, California’s flavored vaping ban was put on hold, as hundreds of thousands of registered voters signed a referendum to reverse the ban. (https://www.latimes.com/california/story/2021-01-22/california-flavored-tobacco-ban-blocked-2022-ballot-referendum-qualifies).
If enough concerned voters speak out against Biden’s proposed new racist ban on menthol cigarettes, there may still be time to stop the backwards plan.
Author: Raza Lawrence ESQ. (Dark Matters)