Legacy of Racial Subjugation: Denying the Right to Vote

By Ira Glasser

Those opposed to discrimination, separation and subjugation based on skin color celebrated, as their like had celebrated after the passage of the 13th, 14th and 15th Amendments approximately a century earlier. But just as the passage of those Amendments were quickly followed by a replacement system designed to maintain skin-color subjugation, so now, swiftly following the legal civil rights revolution of the 1960s, a new strategy of subjugation emerged. And once again, as was the case in the late 19th century, the criminal law was a key mechanism. Only this time, it wasn't explicitly racial, or didn't seem to be. And like water coming very slowly to a boil, for a long time few saw what was happening, or understood why. But consider:

1. 1968 marks the culmination of the civil rights movement; Jim Crow as a replacement system for slavery, by law in the South and by custom in the North, is destroyed legally, and a legal infrastructure of civil rights is established instead.

2. At that time, there are fewer than 200,000 people in federal and state prisons combined, for all crimes.

3. That number begins to grow, and keeps growing, first slowly, then more rapidly, then explosively, until by the end of the 20th century and the early years of this century, there are over 1.6 million people in state and federal prisons, and more than another 700,000 in local jails, making about 2.4 million people behind bars -- one of the highest incarceration rates in the world. (In the past few years, that number decreased slightly, but not materially; however in the past year it began to creep up again.)

4. During this time of explosive growth in the prison population, the proportion of blacks in prison compared to whites doubles. Doubles!

5. What caused this explosive growth of incarceration, and the doubling of the proportion of blacks who were imprisoned?

During these years, the single most frequent reason for the explosion of incarceration was not rape, or assault, or homicide or kidnapping or robbery or burglary but rather non-violent drug offenses, mostly possession or small-time buying and selling. By the end of the 20th century, these constituted 39% of all the crimes for which people were imprisoned -- close to two-fifths! Few big time drug marketers were among these numbers; modern-day Al Capones were rare among the exploding prison population.

Rather, it was mostly small people, caught up in the government's drug war and trapped by the epidemic of brutal mandatory sentences that began in 1973 with the Rockefeller drug law in New York, and quickly spread to many, perhaps most, other states. And although about 80% of those who used prohibited drugs were white, blacks and Latinos constituted about 80% of those incarcerated for non-violent drug offenses. According to government statistics, only about 13% of monthly drug users were black -- just about their proportion of the population -- but 35% of those arrested for it were black, 55% of those convicted for it were black, and between two-thirds and three-quarters of those imprisoned for it were black.

6. The electoral consequences of this explosion of race-targeted felony convictions and imprisonment has been startling. Before 1968, when fewer than 200,000 people were in state and federal prisons for all crimes, the number of people barred from voting by felony disenfranchisement laws was modest. But by the end of the 20th century, skyrocketing felony convictions, driven primarily by non-violent drug offenses disproportionately targeting blacks and Latinos, led directly to similarly skyrocketing numbers of people barred from voting. Today, the number of people barred from voting by felony disenfranchisement laws is 5.85 million. And the proportion of African-Americans among those millions barred from voting has similarly skyrocketed, because they have been the ones targeted, arrested, convicted and imprisoned for non-violent drug offenses. Today, one of every 13 black Americans is barred from voting as a result of felony disenfranchisement laws.

This has been especially, although not uniquely, true in the states of the old Confederacy, where felony disenfranchisement laws were born and nurtured after the Civil War as one way among many to avoid the commands of the then-new 15th Amendment that guaranteed the right to vote regardless of race or color. And it is the only one of those 19th-century inventions that survived the civil rights movement and its transformative laws in the mid-1960s. To this day, the highest proportions of African-American citizens so barred from voting are in Southern states -- 23.3% in Florida, 22.3% in Kentucky, 20.4% in Virginia, 18.9% in Tennessee, 15% in Alabama, and 13.9% in Mississippi. When you consider that blacks who vote vote overwhelmingly for Democrats, and when you consider how close recent elections for the Senate and for Governor have been in these states, it is no wonder that these states have remained solidly in the column that the media have dubbed "red states."

7. The final outrage about all this is that such people, though barred from voting, are counted for the purpose of determining the state's electoral votes and numbers of representatives in Congress and state legislatures. Thus, like the infamous three-fifths compromise during the days of slavery, which counted slaves for the purposes of representation while denying them citizenship, voters not allowed to vote by felony disenfranchisement laws enhance the political representation of the states banning them. How this can be tolerated by anyone claiming we are a representative democracy has always escaped me.

So why did this happen, and what does it mean? The origins of drug prohibition have long been known to have been racially inspired. Laudanum was a wildly popular pain medication containing 10% opium dissolved in alcohol at the turn of the 20th century, and heroin, another opiate derivative was originally marketed, like its cousin aspirin, by the Bayer company. Most users were white. But when Chinese immigrants grew in number, helping to build the railroads that opened up the west, lurid tales of opium dens where Chinese men used opium to prey sexually on helpless white women, led to the first bans on opiates. And although the active ingredient in Coca-Cola was cocaine, lurid tales of cocaine-crazed Negroes sexually exploiting white women and being rendered invulnerable to bullets by the drug led to bans and to the cocaine in Coca-Cola being replaced by caffeine. And the first bans of marijuana were driven by prejudicial fears of Mexicans.

But despite these origins, and drug prohibition existing since 1915, as late as 1968 relatively few people were imprisoned for possessing such drugs. But something happened in 1968. What happened was the culmination of the civil rights movement, as reflected in the civil rights legislation of the mid-60’s, and especially the Voting Rights Act of 1965. This was very similar to the era after the passage of the 13th, 14th and 15th Amendments, when it appeared as if a new dawn of equal citizenship rights for African-Americans had arisen. But just as the Black Codes and Jim Crow laws arose shortly after the post-Civil War Amendments as a replacement system after slavery for the continued separation and subjugation of African-Americans, so the War on Drugs, initially announced by President Nixon shortly after his election in 1968, and kick-started again in 1980 by President Reagan, and tolerated and continued by a succession of Democratic presidents, became, and was perhaps intended, as a replacement system of separation and subjugation of African-Americans in the wake of the destruction of the legal infrastructure of Jim Crow by the civil rights laws of 1964, 1965 and 1968.

Certainly that has been the effect of the War on Drugs. But something revealed in 1994 suggests it may have been intended, just as felon disenfranchisement laws were intended in the late 19th and early 20th centuries to subjugate blacks and frustrate new civil rights laws. In 1994, the diaries and tapes of H.R. Haldeman, Nixon's chief of staff, were published. In them, there appears the following entry:
Referring to the president as "P," Haldeman writes:
"P emphasized that you have to face the fact that the whole problem is really the blacks. The key is to devise a system that recognizes this without appearing to."

Shortly thereafter, Nixon declared the War on Drugs.
For anyone who doubts that the War on Drugs is and has always been a civil rights issue, one need look no further than the explosion of arrests and incarceration it spawned; the doubling of the proportion of blacks among those arrested and incarcerated (despite blacks using drugs no more frequently per capita than whites); and the vast numbers of blacks excluded from the right to vote by felony disenfranchisement laws, originally invented to circumvent the 15th Amendment and hibernating like a dormant virus in our body politic until the War on Drugs provided fertile ground for it to become a way around the Voting Rights Act of 1965.

Slavery was America's original sin; it poisoned the blood and infected the bones of our polity, and that poison remains, still doing its sinful work. If we believe what we were taught in school about America as the land of freedom and equal opportunity, about all of us -- all of us -- being equally endowed with inalienable rights, about the purpose of government, as declared in the Declaration of Independence, being to secure those rights, then we have a lot of work still to do. We remain very far from a post-racial country.

Ira Glasser is the Executive Director of the American Civil Liberties Union


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