The movement to restore civil liberties and resolve systemic racial injustices in the criminal justice system scored a major victory on Thursday. And no, this time we’re not talking about ending the war on drugs. Or at least not yet.
Washington became the 20th state to abolish the death penalty, with the state Supreme Court ruling that capital punishment is unconstitutional because “it is imposed in an arbitrary and racially biased manner.”
If you’re already seeing parallels to arguments for ending drug prohibition, you’re not alone.
Many of the same points the court made in their ruling against the death penalty ring true for the war on drugs, too. For example, the court argued that death sentences have been disproportionately carried out against black defendants, at a rate more than four times higher than it is for white defendants.
There were three main factors the justices cited as justification for abolishing capital punishment.
- “There is significant county-by-county variation in decisions to seek or impose the death penalty, and a portion of that variation is a function of the size of the black population but does not stem from differences in population density, political orientation or fiscal capacity of the county.
- Case characteristics as documented in the trial reports explain a small portion of variance in decisions to seek or impose the death penalty.
- Black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants.
“The most important consideration is whether the evidence shows that race has a meaningful impact on imposition of the death penalty,” the justices wrote in their opinion. “We make this determination by way of legal analysis, not pure science.”
“Given the evidence before this court and our judicial notice of implicit and overt racial bias against black defendants in this state, we are confident that the association between race and the death penalty is not attributed to random chance. We need not go on a fishing expedition to find evidence external to Beckett’s study as a means of validating the results. Our case law and history of racial discrimination provide ample support.”
Similarly, drug reform advocates have long maintained that prohibition is racially discriminatory given disproportionate rates of enforcement and arrests for drug-related offenses. Black Americans are nearly three times as likely to be arrested for a drug-related crime, compared to white Americans. That’s in spite of the fact that rates of consumption are roughly equal among both groups.
What’s more, a 2012 report from the U.S. Sentencing Commission found that black men serve drug sentences that are about 13 percent longer than those applied to white men.
The Washington court said another factor that contributed to their decision concerned “contemporary standards and experience in other states.”
“We recognize local, national, and international trends that disfavor capital punishment more broadly. When the death penalty is imposed in an arbitrary and racially biased manner, society’s standards of decency are even more offended.”
The parallel here couldn’t be more clear. If such trends demonstrate a need to review and reform an existing law, the same rationale could theoretically apply to drug prohibition. A majority of states have legalized cannabis for medical or adult-use, and national interest in changing federal marijuana laws has steadily grown in recent years. Beyond marijuana, a broader drug reform push has included calls to abolish mandatory minimum sentences for non-violent drug offenses.
Of course, marijuana is already legal in Washington, and no other states have yet legalized drugs, so this part of the ruling’s applicability to a potential case seeking to strike down broad drug prohibition in the state might not be quite ripe yet.
While it’s unclear whether the constitutionality of prohibition could be reasonably challenged on similar legal grounds, the similarities are striking. The justification for capital punishment was another point of interest for the justices, who noted that the system failed to achieve its “penological goals” of “retribution and deterrence.”
For all intents and purposes, drug prohibition too has failed to achieve similar goals. Decades of drug war have not appreciably deterred consumption. From 2001 to 2013, the rate of marijuana use among American adults almost doubled, for instance.
The Cato Institute analyzed the impact of the drug war in a 2017 report. It concluded that prohibitionist policies “fail on practically every margin.”
“Economic thinking illustrates that these failures are not only understandable, but entirely predictable. As a result of prohibition and the changes it induces in the market for drugs, increased disease, death, violence, and cartels are all expectable outcomes. Moreover, economics can help us link together these policies with other issues, such as race relations and police militarization.”
A last note from the Washington Supreme Court justices:
“Under article I, section 14, we hold that Washington’s death penalty is unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner,” the justices wrote. “Given the manner in which it is imposed, the death penalty also fails to serve any legitimate penological goals.”
Now swap “death penalty” with “drug prohibition” in that last quote… Fits like a glove.