By 2021, the costs and pain arising from the propagation of the American racial hierarchy reached such heights that calls for anti-racism and criminal justice reform dramatically expanded. The brutal murder of George Floyd by the Minneapolis police vividly proved that the social construction of race in America directly conflicted with supposed American values of equal protection under law and notions of basic justice. The racially-driven War on Drugs (WOD) fuels much of the dissonance between American legal mythology—such as the non-discrimination principle and the impartial administration of the rule of law—and the reality of race in the United States. Mass incarceration of people of color pursuant to the War on Drugs betrays any semblance of equal protection under law. Yet, the Supreme Court stubbornly clings to notions of equal protection and animus that operate primarily to protect powerful white Americans, and to leave laws such as the Controlled Substances Act intact and fully operational, notwithstanding the fact that under that Act people of color suffer grossly disproportionate incarceration relative to whites who are more frequent users of illicit drugs.
This Article shows that the War on Drugs originated with animus against people of color: specifically, with the intent to demonize people of color and to propagate fear within the entire American body politic while assuring disproportionate punishment towards communities of color. The WOD continues to this day to consume human potential and inflict disproportionate suffering on communities of color despite wide-ranging evidence of its racist origins and racist impact. As such, the Fifth Amendment’s equal protection guarantee should operate to invalidate the Controlled Substances Act and liberate all victims of the racist WOD. Only then will the promise of the rule of law and equal protection under law achieve vindication as uniquely American innovations for genuine social justice and human development under law.
andré douglas pond cummings and Stephen A. Ramirez,
The Racist Roots of the War on Drugs and the Myth of Equal Protection for People of Color,
44 U. Ark. Little Rock L. Rev. 453
Available at: https://lawrepository.ualr.edu/lawreview/vol44/iss4/1