If we tinker with the rules to benefit members of one group in the criminal justice system—say, for instance, white opioid addicts—can we count on the rising tide to lift other groups as well? And if we can, should we adopt a strategy that deliberately trains public attention on the privileged group rather than on other groups that are less attractive to policymakers and opinion makers? The reasoning is seductive: If we focus on everyone, we fear that no one will get anything; but if we focus on some, we hope that everyone will get something.
The question is not merely academic. Close observers have long known that drug laws in this country vary with the race and class of the user. When the prototypical user is white, and particularly white and middle-class, possession and use will be decriminalized, either de facto or de jure, and addiction will be viewed sympathetically. But when the prototypical user is poor, and especially a poor person of color, attitudes toward the drug will be decidedly more punitive. Possession and use will be criminalized, and addiction will be viewed as evidence of personal moral failure. That, at least, is the lesson of history, repeated again and again, as Doris Provine and many others have shown.
Today, the question arises anew. As I have described previously, the opioid crisis has hit whites far more severely than people of color, and is now so severe and so widespread that it reaches deep into the white middle class. Nearly ninety percent of heroin users who began taking the drug in the past decade were white, and whites abuse (and die from) opioids at much higher rates than blacks or Latinos. From this, some advocates may perceive an opportunity. Strategies that benefit white opioid addicts could be the rising tide that lifts all addicts—and certainly all opioid addicts—out of the carceral state, or so they hope. In the most buoyant version of this thinking, some advocates might think the opioid crisis could be a tipping point, creating an opportunity to reconceive the very idea of addiction as a public health challenge rather than a problem for the criminal law.
The rising tide strategy is deeply misguided. Fundamentally, it overlooks the almost unlimited capacity for the human mind to conjure (and for society to construct) irrelevant distinctions, and to translate them into different policies. For the strategy to work, policies developed for the privileged group must be applied generally, for the benefit of all other groups similarly situated. But those last words—“similarly situated”—open the loophole that allows discretion to work its insidious, destructive power. In the end, the rising tide strategy is doomed to fail.
Nothing illustrates this better than drug policy. By now, all are presumably familiar with the different constructions of the (white) user of powder cocaine and the (black) user of crack—a difference deployed to justify the 100:1 disparity between crack and powder sentencing at the federal level. But the same phenomenon is taking place less visibly in the opioid crisis. Though opioids affect far more whites than blacks, there are a substantial number of black opioid addicts in the inner cities. The rising tide strategy implies that a sympathetic construction of the white addict would carry over to her black counterpart.
Alas, it seems not to be. The most recent research on this issue shows that the increasingly sympathetic portrayals of suburban and rural (white) opioid addicts, of which there are many, do not extend to their urban (black) counterparts. Black addicts are portrayed with none of the nuance and complexity of white addicts—none of the sense that they are “one of us.” When a black man or woman dies of a heroin overdose in the inner city, the papers do not lament their lost potential as they so often do with whites. In the same way, black addicts are much more likely to be shown embroiled in the criminal justice system and engaged in or associated with violence than white addicts—an outcome presented as natural and unremarkable.
If drug policy reveals the nearly infinite capacity to create and justify different social constructions, other examples in this vein illustrate the importance of differences in political power. As regular readers know, I wear two hats—criminal justice theoretician and post-9/11 practitioner. I was lead counsel in Rasul v. Bush, the case that first established the right of judicial review for prisoners at Guantanamo. After the decision in Rasul, the Bush Administration began to release prisoners in earnest, eventually returning more than 500 prisoners to their home countries. But it was surely not accidental that, as a group, the first to be released were European, even though close observers recognized full well that many prisoners from Africa and the Middle East were no less entitled to their freedom. Prisoners from a European state had political backing that other prisoners simply could not claim.
There is at least one setting in which the rising tide strategy could work. When the law establishes a right, it is at least formally available to everyone, and the State has no discretion to extend it to some but not others. When the Court established a right to counsel in all felony prosecutions, for example, the State could no longer argue that any particular case was so simple, and guilt so obvious, that counsel was not necessary. As applied to drug policy, this is the attraction of legalization. If possession of marijuana is no longer a crime, neither white nor black users risk arrest or a fine every time they light up.
Yet few believe widespread legalization is at hand. To date, only four states have legalized marijuana, and though 20 others have eliminated the possibility of jail time, possession and use can still be the basis of an investigatory stop and a civil fine or penalty. Even where it has been decriminalized, in other words, it remains part of the state’s carceral toolkit, giving police the power to monitor, stop, and fine people at their discretion. And so long as discretion may operate, it is subject to abuse. As the Drug Policy Alliance has shown, minorities are arrested for marijuana violations at far higher rates than whites, though both groups use and sell the drug at similar rates.
And even if all drugs were legalized tomorrow, that would not solve the problem of discretion in the legal system. Virtually no one in the public sphere believes that drug use relieves the addict of legal responsibility for her actions, including conduct attributable to her addiction (unless it rises to the level of legal insanity). This aligns with the well-settled law in the United States. In a pair of cases decided half a century ago, the Supreme Court held that the State may not punish a person for the status of being an addict, but it most certainly can and does punish them for conduct related to or caused by their addiction. Thus, even if we made it legal to use or possess heroin, it would still be illegal to steal a television to pay for the next hit, which means that the State will still have the discretion to decide how to deal with an addict who breaks the law.
In the end, there is a powerful temptation to seek justice for some in the hope that it would mean (at least some) justice for all. But the impulse, however well-intended, must be resisted. There can be no separate justice.