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The perception of a drug’s users, more so than the characteristics of the drug itself, have long determined the public’s and the legal system’s response to it. In Reefer Madness, Eric Schlosser details how public officials criminalized and stigmatized cannabis by associating it with black and Latinx populations (hence the popular usage of its Spanish name, marijuana or marihuana) (1). In Utah, the perception of cannabis users shifted over time from middle-class teens who were experimenting with a mostly harmless drug to criminal, Mexican, gang-affiliated drug couriers. Federal law enforcement drove this narrative, which local law enforcement agencies adopted and embellished upon.

By 2019, perceptions of the threat and effectiveness of marijuana prohibition have begun to shift yet again, even as the drug itself remains the same. A 2018 editorial in the conservative, Church-owned Deseret News calls for “peace in the war on drugs.” The editorial cites a U.N. report that found that harsh punishments actually fueled violence and unnecessary incarceration. The editors call for “evidence-based policy responses” that take into account drug users’ mental health and other circumstances (2).

In a sense, this position is a return to an earlier public perception of imprisonment for non-violent drug offenders in Utah. In 1969 Utah became the third state in the country to reduce penalties for first-offense marijuana possession, changing the crime’s classification from felony to misdemeanor. By the early 2000s, Utahns’ sentiment toward drug offenses had shifted toward a more punitive stance, in parallel with the rest of the country. An examination of the profile of the assumed possessor of marijuana reveals that this perception is crucial to public support of incarceration of non-violent drug offenders. Studying Utah’s somewhat anomalous position in the late 1960s and early 1970s reveals the importance of the “drug courier” profile in national law enforcement in the subsequent decades.

In 1969 and again in 1971, Utah reduced maximum penalties for possession of marijuana, cocaine, and barbiturates. This was partly due to a keener focus on preventing the usage of LSD, for which first-offense possession still carried a felony charge. A study by sociologists John F. Galliher and Linda Basilick, published in the journal Social Problems in 1979, investigated the incongruity between the state’s religious, anti-drug culture and the lenient legislation. Utah’s reduction of penalties for drug possession in 1971, the same year that President Nixon declared drugs to be “public enemy number one,” seems surprising. The article, “Utah’s Liberal Drug Laws: Structural Foundations and Triggering Events,” concludes that without the visible presence of a threatening minority—either in terms of race or anti-war politics—Utahns favored lenient drug enforcement. White, largely Mormon communities saw their own children as the primary offenders of anti-cannabis laws (3).

The committee chairman of the Utah Bar Association favored the reduced penalty for cannabis possession. He stated, “We merely asked the senators if they really wanted to sentence people who are really not criminals—kids and so on. ‘These are your kids after all,’ we told them.” (291). Another attorney noted, “We also pointed out that the courts would be reluctant to convict in marihuana [sic] possession cases since the marihuana problem was hitting middle-class families and Mormon youth… A prominent Utah banker’s son was arrested for possession of large quantities of marihuana.” (291). Former Utah governor Calvin Rampton even observed, “Marihuana is not worse than alcohol so a jury would not convict what they saw as misguided kids.” (292). During this period, the general impression was that marijuana was a harmless way for teenagers and young adults to experiment.

Since the realities of incarceration affected the dominant community in Utah, the state lessened the punishment for drug possession. The sentiments recorded in Galliher and Basilick’s article reveal that Utahns of the time saw incarceration as punitive and harmful. An attorney complained that “this would only put kids in the state prison at a youthful age and hurt them.” Another attorney said that anti-cannabis law enforcement was “taking our high school kids and putting them with men who were rapists and big drug dealers. These criminals were treated the same as our sons and daughters” (292). The Utah Bar Association committee advised that, “It didn’t make a lot of sense to throw 18 and 19-year-old kids who are merely experimenting in prison for terms where they may come out hardened criminals” (292). The Deseret News said about the 1969 bills that they were “modified to give the courts more discretion in sentencing so that drug users could be rehabilitated rather than hardened” (290). These statements show that influential people in the state at the time showed concern about the potential for prison to create, rather than rehabilitate, criminals. When it came to “their” kids, Utahns did not want to incarcerate non-violent drug offenders for long sentences, if at all.

By the 1980s, the federal government ramped up Nixon’s War on Drugs. Of particular concern to President Ronald Reagan and Vice President George H.W. Bush was the transportation of drugs. The Reagan administration established the Task Force on Crime in South Florida in order to intercept drug smugglers, and soon the Florida Highway Patrol intensified their efforts in apprehending drugs. In 1985, the “drug courier” profile that Florida law enforcement used listed “ethnic groups associated with the drug trade.” This explicit racial profiling did not withstand legal challenges for long, but the courts did rule that highway patrol officers could apply the criteria for supposed drug couriers once stopped for any traffic violation.

Racial profiling continued to occur in a way that reinforced stereotypes about minority drug couriers, according to law professor David A. Harris in a special report for the ACLU. In 1986, the federal government began a program called Operation Pipeline, intended to interrupt drug trafficking along interstates. This program provided training—including the use of implicitly racially biased criteria in stopping cars—and funds to state law enforcement agencies. Officers stopped and searched people of color for drugs in their vehicles at much higher rates than they did white people. As a result, officers found more people of color with drugs, who do not use drugs at rates any higher than do white people.

In 1996 the ACLU sought legal action against the Maryland State Police for their use of racial profiling in “pretext stops”—traffic stops based not on race but on traffic violations. A study found that the race of the drivers could be identified in nearly all cases, and nearly all (ninety-three percent) drivers violated traffic laws and were eligible to be stopped. Despite white motorists representing about three-quarters of all drivers, eighty percent of drivers stopped were “black, Hispanic, or other racial minorities.” Studies in other states have demonstrated that this is not an isolated practice. A study of stops in Illinois found that Latinx drivers were stopped at higher rates than white motorists, even though officers found contraband in lower proportions in Latinx-driven vehicles (4). A Task Force study of California Highway Patrol practices found that it was typical for an officer to only find drugs in seven percent of stops, and these were usually small amounts of drugs. Around ten percent of stops were of white drivers (5). Law enforcement across the country have used pretext traffic stops as a way to disproportionately target people of color, who then become suspected of higher-than-normal drug usage.

In the 1990s and 2000s, Utah participated in this system as well. A Deseret News article from 1997 reports the “good news” that state law enforcement agencies would receive $1.4 million a year for the next five years from the federal government in order to combat drug trade in the Rocky Mountain High Intensity Drug Trafficking Area (HIDTA). Even though only five Utah counties were included in the HIDTA, Salt Lake Police Chief Ruben Ortega reported that he would spread the funds throughout the state, a decision that the federal Drug Enforcement Agency supported. This money would help fund access to a national database of suspects. In marked contrast to the attitudes of Utahns in the late 1960s, a police lieutenant in the Deseret News article stated that long prison sentences were an indicator that the police were “winning” the war on drugs (6).

While attorneys and officials did not want to prosecute or imprison non-violent drug users during that period, by the late 1990s, the desire to imprison these offenders had much to do with the perception of who in the state was being arrested for possession. Law enforcement, both national and state agencies, portrayed the drug threat as stemming from Mexican criminal gangs. Police Chief Ortega stated in the Deseret News article, “Much of the drug trade finding its way into Utah and other Western states can be traced to a notorious band of illegal immigrants from Sinoloa, Mexico.” A 2003 federal report about the state of Utah stressed the efforts of Operation Pipeline and Operation Jetway, a companion program that targeted drug smugglers at air travel and bus ports. According to the report, “Mexican criminal groups dominate the transportation and wholesale distribution of methamphetamine, heroin, cocaine, and marijuana throughout Utah.” The exact phrase “Mexican criminal groups” was used fifty-eight times in forty-two pages even though the report acknowledges the prevalence of Utah-derived cannabis and meth. The hold of these Mexican groups on the drug trade was supposedly so powerful that even white supremacist gangs would work with them to engage in the retail-level drug trade (7).

In addition to the tradition of racism, via the drug courier profile, used in pretext traffic stops, there is reason to question the reports from law enforcement recommending the identification and sentencing of drug offenders. The ready supply of federal funds provided an incentive for local law enforcement to overstate the threat of drugs to Utahns. In the 1997 article, Ortega claims that the Salt Lake International Airport is a weak link in the drug-control system. But the 2003 report notes that few drug seizures take place at airports, even with the existence of Operation Jetway. Without noting any deaths from cannabis usage, the report points to the violence associated with the production and distribution of cannabis in Utah. Marijuana growers “sometimes employ armed Mexican immigrants to protect their sites.” The report seized seventeen weapons from cannabis growing sites in 1999, but no weapons in 2000. Presumably, this “violence” could be completely eliminated by the decriminalization of recreational cannabis. The report also gins up the dubious fear of “trancemission” parties, a version of raves where attendees do club drugs such as MDMA and have sex in rooms equipped with video cameras. My google search for “trancemission party” only turned up an early 1990s German DJ.

By the 2000s, states began to be concerned about the War on Drugs’ effect on prison populations, as mandatory federal sentencing requirements filled prisons with non-violent drug offenders. In 2006, California was the first of a wave of states to reduce penalties for possession. Utah followed suit in 2015. This appears to, and may in fact, mark a long overdue scaling down of the War of Drugs. But a 2015 report from the Department of Justice points out that 99.5% of drug offenders in federal prison were serving sentences for drug trafficking (8). Considering the racism of anti-trafficking initiatives such as Operation Pipeline, this seems to indicate that the carceral state continues to target people of color in enforcing drug laws by massaging the definitions of “possession” and “trafficking.” While Utah’s attitudes toward the incarceration of drug offenders has changed over time, there could also be continuity in who the dominant Utahn community considers to be dangerous. When “our kids” are experimenting with drugs, it is a bit of harmless fun; possession in that case should carry lenient penalties. But when a “Mexican criminal gang” is engaged in trafficking, we see incarceration as a necessary punishment to keep them off the streets. Because of the history of racism in the War of Drugs, we should maintain a healthy skepticism toward the ways in which law enforcement tries to characterize drug users.

Nate Housley is a labor historian and writer with an MA from the University of Utah. twitter: @nate_housley

References

  1. Eric Schlosser. Reefer Madness Sex, Drugs, and Cheap Labor in the American Black Market. Boston: Houghton Mifflin, 2004.
  2. “In our opinion: Time for peace in the war on drugs.” Deseret News, October 25, 2018. https://www.deseret.com/2018/10/25/20656892/in-our-opinion-time-for-peace-in-the-war-on-drugs
  3. John F. Galliher and Linda Basilick. “Utah’s Liberal Drug Laws: Structural Foundations and Triggering Events.” Social Problems. 26, no. 3 (1979): 284-297.
  4. David A. Harris. “Driving While Black: Racial Profiling Highways.” An American Civil Liberties Union Special Report, June 1999. https://www.aclu.org/report/driving-while-black-racial-profiling-our-nations-highways
  5. California State Task Force on Government Oversight. “Operation Pipeline.” September 29, 1999. http://www.aclunc.org/discrimination/webb-report.html
  6. Mark L. Reece. “Utah intensifies war on drug trafficking.” Deseret News, February 23, 1997. https://www.deseretnews.com/article/545003/UTAH-INTENSIFIES-WAR-ON-DRUG-TRAFFICKING.html
  7. United States Department of Justice. “Utah Drug Threat Assessment.” Product No. 2003-S0389UT-001. March 2003. https://www.justice.gov/archive/ndic/pubs3/3619/3619p.pdf
  8. Sam Taxy, Julie Samuels, and William Adams. “Drug Offenders in Federal Prison: Estimates of Characteristics Based on Linked Data.” United States Department of Justice Special Report. October 2015. https://www.bjs.gov/content/pub/pdf/dofp12.pdf