An Interview with Professor Doris Marie Provine, Author of Unequal Under Law: Race in the War on Drugs

Professor Doris Marie Provine of Arizona State University's School of Justice & Social Inquiry is the author of a really interesting and challenging new book called Unequal Under Law: Race in the War on Drugs. I keep coming back to this book as a reference point for talking about some of the thorniest issues related to the intersection of race with American action -- and inaction -- on drug policy. These are issues that are so big and obvious that they're almost hard to recognize as issues. Unequal Under Law, however, does a really nice job of emphasizing that we are, in fact, making racial choices in drug policy -- both consciously and unconsciously -- that profoundly affect the lives of our fellow citizens.

Last week I talked with Professor Provine about the book. This was a fun interview and it was also a little technology breakthrough for me because we did the whole thing over Skype. Transcript starts below and continues on the jump.

In the book you talk about how the victories of the civil rights movement actually played into the evolution of the drug war. I thought you were suggesting that the evolution of stricter drug laws and more draconian approaches to drug policing came as a dialectical response to the increase of African American participation in civil society and perhaps  was not a conscious sort of racism but played on people’s unconscious fears and anxieties.

I do think that there was a hardening in reaction to Black empowerment in the 60s and so many other changes that came at the same time, including the youth movement in general, and specifically reaction to the Vietnam War.  This was when I was in college. It was an incredible thing. All that was happening kind of one on top of another – civil rights activism, anti-war demonstrations, the women’s liberation movement.  This created a lot of resentment among older and more conservative people.  Richard Nixon, was a turning point figure because he realized, “Wow, if I can pick up on the anxiety these kids have created and that the new vocalization of African Americans has created, then I’ve really got something. I can get the whites in the South that used to vote Democratic to vote Republican.” So you see this turning, despite Nixon’s earlier “soft” position on drugs. I think that on the part of the leadership, it was pretty intentional to cultivate those anxieties which are tied up with racism, but they’re sort of a second order racism, in my estimation.

It was different in my father’s era.  My father was from Montgomery, Alabama. And he was what I would call a real old fashioned racist. My mother was from the north and anti-racist, and so the family split over this issue.. My father didn’t want to mix with black people any more than he had to, and he had some fixed opinions that were ridiculous. Well, I think that type of racism underwent a huge change in the late ‘60s and in the ‘70s among white people. That kind of racism became passé, and more of a regional thing with an older generation. What you have in its place is a kind of anxiety about racial change and about values that are connected with race. And a profound disregard for historical inequalities.  So it’s still racism, it’s just got a really different flavor to it, and it’s much more diffuse and much less easy to recognize and acknowledge in oneself.

There was a time in the ‘60s and ‘70s when white people were more ready to talk about their own racism, and about their own part in maintaining systems of inequality.  People would ask, “Why do I react this way? Why don’t I have friends who are Black or brown or culturally different?” All of that questioning kept racial equality more connected with people’s lives. And then it got replaced by this denial that there is any racism, and by the perverse concept of political correctness, which shut down the dialogue.

(More)

Talking about the more subtle form of racism, you use the term “aversive racism,” from the field of psychology.  My sense toward the end of your book is that you’re suggesting perhaps there needs to be a jurisprudential strategy that takes aversive racism into account.

Yes, that’s right.  I realize, of course, that what judges do does not automatically translate into social change.  In the law and society movement, we’re always talking about the gap between “law in books” and “law in action,” and certainly you can make that same connection between what courts say and what courts are able to do, and that gap has been explored. Nevertheless, I think it’s also true that courts give people ideas, and they reinforce ideas that are already in civil society. For example, with regards to something like gay marriage, the more there is a judicial recognition of some kind of civil union, the more it becomes part of the civic discourse.

I’m saying that one place to begin a more realistic discussion about racial disadvantage and racism would be through judicial decisions like the [Edward James] Clary case that really push the issue of unconscious racism. Because the only way you deal with unconscious racism is to confront it. It doesn’t go away any other way, and so it disturbs me that we’re in this period of denial about what’s going on. It is a shame that the Clary case got very short shrift on appeal.

What we have now is an impoverished dialogue in places of power. You almost can’t help but notice that when you read the language the Sentencing Commission and others use in talking about the mandatory minimums and other harsh things Congress did as they confronted crack in the mid-1980s, and in describing how they have refused to change the law significantly.    These officials carefully stick to the script that “it could be perceived to be” racist that we have this crack-powder disparity. Not that it is racist to maintain these laws, but that “it could be perceived” to be so by some unnamed and possibly over-sensitive people. This charade persists because the prevailing idea defines racism in terms of intention.  It is fighting words to call anyone an intentional racist.  So we avoid this term, then, presto, racism almost doesn’t exist. But of course we have these impacts that “some people perceive” to be about race. You know, it’s crazy.  We ought to be saying, “Well wait a minute. Let’s dig into this. There’s got to be some unconscious emotional stuff going on here that led us to intolerable results. We can blame people a generation ago for setting this up, so we can talk about this more openly. They drastically over-reacted to the crack phenomenon in part because it was perceived as a Black drug. We need to change the law.” I’d like to see that kind of dialogue get going in criminal law reform.

You talked about this tendency to treat really gross racial disparities as if they could “potentially” be racist or “potentially” have racial impacts, but what I was kind of amazed by recently was this report from the Justice Policy Institute. It’s called “The Vortex,” and it’s all about different arrest rates of African Americans versus whites in cities across the United States for drug crime. They’re literally showing arrest rates for blacks dozens of times as high or in some cities more than a hundred times as high, despite comparable levels of criminality. I guess what I wonder is, when something like that comes out, why isn’t there more of a sense of “Aha. Here is the hard proof of racial disparity,” and why isn’t that really troubling to more people?

You have to say to yourself, “where are the constituencies for equality and for justice and a de-racialization of criminal justice?” And the problem with drugs is that people are  so thoroughly saturated with the idea that anybody who uses or sells drugs is destroying society that you don’t have among the black leadership a particular interest in really pushing this issue hard. There’s some. But it is a much more difficult issue than environmental racism, for example, or racial inequalities in health care.  It’s a lack of concern and caring about our fellow citizens that I find astounding and very upsetting. It’s a kind of “Okay, we’re not actively racist, but we don’t really care about those people. We’d just as soon they went away.  They have brought their suffering on themselves and we don’t want to know any more about it. We just don’t care.”  And I think that’s very pervasive in our society among non-African Americans.  For many African Americans drug policy, in a way, is almost too hot and too troubling an issue to handle.  .

As a practical matter, what would it mean for courts to adopt something like the approach you’re talking about, and how would courts sort out the effects of what we’re talking about as “aversive racism” versus engaging in social engineering and just trying to create a “perfect society” where everybody’s distributed equally or some sort of other utopian scheme?

I think they have to get interested in empirical research. I do agree that at some level it’s a slippery slope, and I think courts have experience with discrimination under the Civil Rights Act that make them worry about line drawing. But where the differences are really gross – for example in terms of arrests, as you just mentioned – to ignore drastic racial impact is  clearly not right either as a constitutional matter. And where there is smoke, there is usually fire.  There is no lack of evidence that in the case of crack that Congress was influenced by racial fears.  So here at least we should be talking about “equal protection” of the laws  Maybe it’s a difficult to pool to swim in, but the courts have an obligation to connect with reality.  It’s not about creating a perfect society.  It’s a question of dealing competently with a legal legacy of racial injustice.

Look at the 14th Amendment equal protection clause cases before McCleskey v. Kemp. The court was discovering how to create a doctrine to deal with facially neutral but substantively discriminatory laws in the southern United States, such as jury exclusion laws and qualifications for jobs. They came close to saying “If the impact really can’t be explained in credible non-racially-connected terms, then we should be involved as an equal protection issue.” But then that morphed into “There has to be evidence of intentional race-based acts.” And I think in our day and age, we should be able to say that when there’s a gross impact, and when he have a history of problems in this area – and there’s no way of doubting that there have historically been huge problems with race in criminal justice – then it’s our duty to find some way to examine at least some of these issues and get this discussion started.  And in the case of crack, it is clear that the fears of the drug were racialized, as so often has been the case in criminalizing drugs.  Just to get in maybe knee high in this “pool” would be an advance because it would be a break from this notion that all racism is intentional. And that’s really where I would like the courts to go. I would like for them to begin to consider the overwhelming evidence that contemporary racism is largely unconscious. It’s kind of pre-conscious.

There’s no reason that they can’t read some of those studies in social psychology and related fields. This research has been going on for a long time. It’s well founded and rigorous. It’s not like they’re dealing with anything that’s on the cutting edge of research where you really don’t know which way it’s going to go. And it makes a lot of sense when you look around and see the patterns of behavior.

An example of the problem of a stunted racial discourse is what happened to [University of Washington Sociology Professor] Katherine Beckett in studying drug arrests. She told me recently that after careful research with the Seattle police, with the researchers riding along, her team discovered that the police seemingly didn’t even see drug transactions when the dealer was white. But they were much more alert when the dealer was nonwhite. She noted this in her research and she documented it. But this finding so angered the police that they will no longer have anything to do with her.  Again, this is a conflation of intentional racism – which we’ve rejected as a society as one of the great evils of mankind – and unintentional racism, which is part of American society and is something we need to deal with. It’s like a lot of other basic emotional things. We might not like it about ourselves but we have to deal with it. But if you conflate the two, and then you get the Seattle police totally bent out of shape It becomes “what, are you calling me a racist?”

I think that’s really sad, and  clearly counterproductive for the kinds of advances we need to make in criminal justice. I mean, the problem is all over the place, not just in drugs, obviously.

It seems like it’s a difficult area to tread in – or to swim around in, to use your pool metaphor – just because it’s so emotionally challenging to make the distinction you’re talking about.

We need to find a way to normalize the discussion about racism so that people don’t become deeply insulted and upset when they are called to task. It’s hard. I’m a teacher, and I struggle with this in trying to open my students to thinking about these possibilities without getting into something that’s not going to be productive. And it’s difficult. But I think it’s worthwhile and what I notice in teaching is that the students of color really appreciate it if you open up this discussion. It may not always get as far as you want it to get, and you may not change a lot of minds. But it does offer some support and reassurance for kids who know that this is going on and who are trying to figure out a way to talk about it among themselves. Whites may not want to get into it, but others are kind of happy that someone is seeing it a little bit their way.  And it is time for courts to acknowledge the unconscious mind as a force in normal life.

I’m thinking – and this is maybe a counterexample – of the moment you note in your book when Rep. Barney Frank was talking about the crack-powder sentencing disparity. He was being very explicit and saying it was “overwhelmingly, objectively racist,” and he inspired all these outraged responses from other representatives who just thought that was ludicrous and that it couldn’t possibly be.

You can’t go that route and create policy change. I think Marc Mauer [the director of the Sentencing Project] is brilliant in the way that he is approaching change. If we talked with Marc, I think his analysis of that disparity would be very similar. But his approach when he’s dealing with people who aren’t of this persuasion is to address the issue in terms of “efficiency,” “cost,” all these utilitarian concepts. That’s good, because it’s more neutral territory and people can go there and not get so aroused. But I don’t have Marc’s job. I have a different job.  My focus in this book was on how race amplifies the fears that mind altering drugs provoke.   

Comments

[dmac]

Excellent interview. I'm going to pick up this book finally.

[dp]

I think the author makes some excellent points, but a few of her own statements reek of a sort of racism similar to what she's trying to expose.

"And I think that’s very pervasive in our society among non-African Americans."

I've seen the views she's talking about expressed just as often in blacks as I have in whites. A lot of white people are slow to show remorse when something happens to a black man, because they seem to think that all black men are troublemakers and thus deserved it. I'm privileged to hear it because I'm white and people don't expect me to take offense; however, when the roles are reversed and a group of black people don't know I'm there, I hear them express the same feelings for different reasons.

Sometimes I wish I could say, "You're not all murders and rapists, and not all of us want to screw you over," but I don't for fear of starting a fight.

I know I'm a bit racist in some ways, but it's really a very hard thing to avoid. We live out our lives based on generalities we observe in the world around us. Bears will eat us, grey skies mean we may need to cancel the game. We may not know each individual bear, or be able to forecast the weather of every day, but based on our past experiences we make a judgement and live by it. I think it's foolish to try to abolish this sort of thinking, and that we would be much better off spending our time learning to accept it as part of being human. Only by being honest with ourselves, realizing that we all have that same flaw (to varying degrees), will we be able to bridge the gaps that keep our people apart.

That's just my two cents.

[JB]

"They’re literally showing arrest rates for blacks dozens of times as high or in some cities more than a hundred times as high, despite comparable levels of criminality."
I don't know what part of the JPI report you found that information. If that statement were true, then it is evidence of real bias in the system (as opposed to disproportionate convictions, which simply reflect disproportionate offences). What you are saying is that for crimes that blacks and whites commit in equal proportion, "arrest rates for blacks" are "dozens of times as high or in some cities more than a hundred times as high." How would we know that? You are saying that for a certain crime, blacks and whites commit it in equal proportion. For example, 1 out of every 10 black and white person does X. Blacks are arrested at a rate of 12x. Stats for the crime would have to come from victim reports or arrest reports. Stats on the criminal acts themselves would have to come from victim reports, or criminal self-reports. I have never heard of a crime that is commited at the same rate per population by blacks and whites, yet black arrest rates are 12x that of whites. I don't know where you found that in the report, or anywhere else for that matter.

[Alex]

From the JPI report, page 2: "African Americans are disproportionately incarcerated for drug offenses in the U.S., though they use and sell drugs at similar rates to whites."
From page 3: "Survey research shows that whites and
African Americans report illicit drug use and illicit drug sales at similar rates. However, at the local level, African Americans are admitted to prison for drug offenses at much higher rates than whites. In 2002, African Americans were admitted to prison for drug offenses at 10 times the rate of whites in the 198 largest population counties in the country. Ninetyseven percent (193 out of 198) of large-population
counties have racial disparities in drug admission rates. In Appendix A, JPI reports drug admission rates, by race, for each of the 198 large-population counties that are the focus of this study." When you look at arrest rates rather than incarceration rates, as the JPI report shows in great detail, the statistical disparities by race are even more dramatic.

I would also point you to the reports by Human Rights Watch and the Sentencing Project released this month that document essentially the same thing. The reports are Targeting Blacks: Drug Law Enforcment and Race in the United States" and "Disparity by Geography: The War on Drugs in America's Cities." You can get them at http://tinyurl.com/5lqre7 .

I grant you that the statistical claims made by these reports are really, really dramatic. However, I think that is a reason to engage with them and try to understand them, not simply to dismiss them as implausible without actually looking at the evidence they advance.