Drug Policy and Mass Incarceration in Chicago

Chicago’s status as one of the great American cities is well deserved. This remarkable metropolis is justly celebrated as a hub of music and the arts, as home to some of the world’s most iconic architecture, and for its vibrant public life, anchored in its extensive network of parks and beaches. At the same time, however, Chicago also has the dubious distinction of exemplifying some of the worst aspects of the American city. Teachers of urban geography have long drawn on Chicago for examples of racial segregation and red-lining, white flight and decaying public housing, police violence and the suppression of political dissent, gentrification and ghettoization. To this list we can add what is arguably one of the most pressing social justice issues of the day: mass incarceration and the war on drugs that fuels it.

While the “war on drugs” may no longer be as fashionable a term as it once was—President Obama’s former “drug czar” Gil Kerlikowske distanced the administration from the term in 2009—the policies that characterize it continue to be politically expedient. Policies which purport to be “tough” on crime such as mandatory minimum sentences and stop-and-frisk enforcement tactics still represent the standard approach to the issue of drug crime, and politicians of any stripe question them at their peril, such is their continuing appeal with voters. But the war on drugs, now in its fourth decade, is showing increasing signs of strain as governments at all levels grapple with the financial and social costs of a system that has, at this point, incarcerated more people than at any point in history.

It is difficult today to believe that as late as the 1970s, there were so few people in US prisons—under 350,000 in 1972—that mainstream scholarship could predict the end of prisons within a generation. Instead, the US prison population has quintupled since that time, today topping two million people[1]. This dramatic growth is inseparable from the expansion of imprisonment for drug offences: 1.5 million people were arrested for drug violations in 2012—over 80% for simple possession—and more than half of the people currently in federal prison are incarcerated on drug charges[2].

Scholars often point to deindustrialization as an integral component of the phenomenon of mass incarceration. As the American economy sloughed off its industrial workforce, rendering a huge segment of the population superfluous to the economy, the prison system expanded to incorporate this surplus[3]. Jamie Peck and Nik Theodore note that in the starkly racialized West Side of Chicago—an area emblematic of both deindustrialization and mass incarceration—some 59,000 people worked in the area’s factories in 1972, a number that fell to 10,600 by 2006; meanwhile, retail jobs that depended on this sector dropped from 35,000 to 5,200[4]. In these communities, where the official unemployment rate among African-American men exceeds 30%, and where one in seven adult men is incarcerated and fully 70% are burdened with criminal records limiting their employment opportunities, it is easy to see how critical scholars refer to mass incarceration and the war on drugs as nothing less than a system of racial control, or in Michelle Alexander’s formulation: a “new Jim Crow.”

Illinois’ prison system has echoed trends in incarceration nationwide. The state prison population quadrupled from 1973-1991 and increased a further 55% by 2000, overwhelming the system’s capacity despite 21 new prisons being built during that time[5]. As elsewhere, this new prison population comes in significant part from the war on drugs. Nationwide, Illinois incarcerates the greatest proportion of people for marijuana possession compared to higher-level trafficking charges (tied with Texas), and the state boasts the third highest disparity between Blacks and whites in terms of those incarcerated for possession[6].

At the same time, there are voices calling for change, from activists protesting racial disparities in the policing of drug laws and the expansion of stop-and-frisk tactics, to harm reductionists working to mitigate the harms associated with illegal drug use and the criminalization of users, and even fiscal pragmatists concerned with runaway prison budgets. Documentaries such as Eugene Jarecki’s The House I Live In and Michelle Alexander’s popular book The New Jim Crow have raised the profile of these debates. Neverthelessthe current state of drug law reform appears profoundly ambivalent. From Colorado to Alaska to Washington, DC, states are easing penalties, decriminalizing, and even legalizing marijuana. Cities such as Chicago and New York have moved in the direction of marijuana decriminalization, making it a ticketable offense in most cases, and over the past decade, New York State has revised some of the most egregious of its mandatory sentencing laws. New models of substance-abuse treatment prisons are being developed, such as the Sheridan Correctional Center in Illinois. And the Obama administration’s Fair Sentencing Act lowered the sentencing guidelines for crack cocaine in 2010, which had long sentenced (largely African-American) defendants to prison terms 100 times longer than those (largely white) sentenced for powder cocaine. At the same time, however, the federal government continues its ban on federal funding for basic harm reduction measures such as needle exchange programs, and critics have pointed out that many of these progressive developments fail to address the root problems created by mass incarceration and prohibitionist drug policy.

One illustration of how seemingly progressive shifts in policy can reproduce or conceal underlying problems can be seen in Chicago’s recent move toward marijuana decriminalization. In late 2011, a small number of city aldermen called on police to stop arresting people for the possession of small amounts of marijuana, because of the grossly disproportionate effect that enforcement was having on Black and Latino communities. Shortly afterwards, Alderman Danny Solis, a close ally of Mayor Rahm Emmanuel, announced his intention to table an ordinance making low-level possession punishable by fines and community service rather than arrest and jail time. The ordinance passed in 2012 and Chicago now has two years of experience with decriminalized marijuana.

This move, however, has failed to precipitate a sea change in the city’s drug policing. To begin with, the new law still grants police the power to arrest people for possession—the only difference is that it gives them the discretionary authority to opt for ticketing instead. For a variety of reasons, police have been less than eager to forgo arrests in favour of ticketing. While arrest rates have dropped somewhat, they remain troublingly high at 2.3 times the national average[7]. From August 2012 through February 2014, only 1,725 of the new tickets were issued, while 20,844 arrests were made for possession[8]. Researchers at Chicago’s Roosevelt University calculate that 93% of possession violations have resulted in arrest since the passing of the new law, with only 7% leading to a ticket[9]. Worse, these arrests appear to conform to the same racist patterns that initially spawned calls for reform. Prior to the new laws coming into effect, Mick Dumke and Ben Joravsky noted in the Chicago Reader that “African-Americans account for 78% of those arrested, 89% of those convicted, and 92% of those jailed for low-level possession in Chicago”[10]. Put another way, African-Americans were 15 times more likely to be arrested for simple possession than whites—this, despite clear evidence that these groups use marijuana at essentially the same rates[11]. These glaring disparities have not changed appreciably in the wake of the city’s experiment with decriminalization, and some evidence suggests they may have worsened. Since the passing of the law, the Reader reports that 78% of those arrested for possession were Black, 17% were Hispanic and only 4% white[12].

The failure of police to shift from arresting marijuana users to issuing citations may be related in part to administrative and bureaucratic pressures. Officers report that citations require as much police time as arrests do, negating the savings of time and money that were touted as one of the rationales for the shift. However, such considerations do not explain the stark geographical disparities in rates of arrest versus citation across different communities and municipalities. While 93% of possession violations in Chicago resulted in arrest, in suburban Evanston, the majority (69%) of those same violations ended with the issuance of tickets[13]. Within the City of Chicago, disparities in arrest rates between neighborhoods actually increased following the implementation of the new laws, with poor, racialized neighborhoods like Garfield Park having arrest rates seven times higher than the city average and 150 times higher than Edison Park, the overwhelmingly white neighborhood with the lowest rates[14]. In Chicago, such geographical disparities mean racial disparities. The majority of arrests continue to take place in neighborhoods that are more than 90% non-white and the 25 neighborhoods with the highest arrest rates are almost all over 90% African-American[15]. As the authors of the Roosevelt University study pointedly remark, “Geography, not justice, determines whether marijuana possession results in a fine or an arrest.”[16]

It is this racially uneven geographical pattern of arrests that gives us our clearest sense of why the new ticketing ordinance has been so little adopted by police. Scholars critical of domestic drug policy have long argued that the war on drugs has never been about drugs. Rather, drug law enforcement has provided a pretext for intensified policing of racialized communities—communities like those on the West Side of Chicago, described above[17]. Under the aegis of enforcing drug laws, police are given remarkable latitude to stop, search, and arrest (predominantly) young men of color. These police powers have been steadily expanded over the past four decades of the war on drugs, from limitations to the Fourth Amendment such as stop-and-frisk and other warrantless searches, to financial incentives such as drug forfeiture laws and federal policies like the Byrne program which provided military hardware to police departments. Given such a trajectory, and considering the effects that this transformation has had on contemporary policing, it was always unlikely that police in Chicago would suddenly switch to issuing tickets. Possession arrests are a tactic with broader utility than simply controlling substance use—they serve as one of the principle means by which police physically regulate the bodies of young men contained in racialized neighborhoods.

Change to this situation is likely to come only with considerable political will—something conspicuously absent in the Rahm administration, which has seemingly introduced this legislation only to back away from actually implementing it[18]. Beyond the administration, a host of different voices compete to influence the debate. Cook County board president Toni Preckwinkle continues to advance (moderately) progressive legislation around mass incarceration and drugs. Activist groups such as Critical Resistance have established chapters in Illinois, pushing for more radical changes to the “prison industrial complex,” while local organizations like Chicagotorture.org publicize the abuses suffered by people at the hands of the Chicago Police Department. And Chicago police superintendent Garry McCarthy himself recently declared the entire war on drugs to be a “failure” (albeit in the context of calling for tougher sentences for gun crimes—a proposal which would inevitably further criminalize many of same people targeted by drug laws).

In the matter of drug policy, then, as with so many social issues before, Chicago is marked by contradiction, reminding us that even apparently progressive change often retains the most problematic features of that which it replaces. In such a political landscape, it remains to be seen whether—and how—Chicago’s policing of the racialized poor might be transformed for the better. If we are committed to change that is genuinely progressive, we will need confront the fact that the war on drugs and mass incarceration have always been projects of racial and class control, not public safety or public health. Changing the status quo will require not just reform to existing laws, but also a profound reconfiguration of the city’s relationship to so many of the citizens who make Chicago a great American city.

–Jesse Proudfoot

DOI: 10.14433/2014.0024