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Getting Tough
Politics and Society in Modern America
By Julilly Kohler-Hausmann PRINCETON UNIVERSITY PRESS
Copyright © 2017 Princeton University Press
All rights reserved.
ISBN: 978-1-4008-8518-3
CHAPTER 1
Addicts into Citizens
THE TRIBULATIONS OF NEW YORK'S TREATMENT REGIME
When Nelson Rockefeller proposed his draconian drug penalties in 1973, he presented them as a rupture with the recent past — a sharp repudiation of the drug-treatment programs he had championed for almost a decade. Many scholars and commentators have largely echoed this assessment, positioning the Rockefeller Drug Laws as the origins of the modern, punitive War on Drugs. There is no doubt that the political theater of enacting these policies reverberated nationally and dramatically escalated the prescribed penalties for selling illicit drugs. But emphasizing only the radical departure the laws entailed risks obscuring the continuities with the earlier period and impeding our ability to understand the transformation. Carefully locating Rockefeller's dramatic proposal in the longer history of the state's efforts to manage drug use and street crime reveals that the 1973 policy both repudiated and built upon the treatment regime that came before them.
Contemporary political rhetoric also obscured the complexities and continuities. A newspaper at the time captured the tidy narrative in the simple title: "Drug Addiction in NY: Once an Illness, Now a Crime." Though Rockefeller emphasized drug rehabilitation before 1973 and penal sanction afterward, it is imperative analytically to recognize that criminalization and medicalization are concurrent, intertwined, and at times mutually dependent strategies. Rockefeller — and most other participants in these debates — never categorically rejected a role for treatment or law enforcement. They more typically debated the appropriate balance between them. Policymakers endeavored to establish which strategy was appropriate for which groups: what enticements, services, and deterrents were needed to manage different consumers and sellers of illicit drugs. In other words, the architects of New York's drug policy were engaged in a (largely futile) effort to sort the various participants in the drug economy into distinct categories: between victims and perpetrators, addicts and pushers, or the redeemable and incorrigible. As has often been the case throughout the state's frustrated efforts to regulate intoxicating substances, a person's social location — race, ethnicity, neighborhood, gender, and class — had a profound influence over where in the state's taxonomy he or she landed.
While rhetoric in the 1970s presented "addicts" and "pushers" as stable, essential identities, these terms are best understood as artifacts of the ongoing historical struggles over narcotics. Instead of objective divisions within the social body, the distinct categories of drug users were actually constituted through debates over policy. The term "addict" suggested that habitual drug users suffered from a uniform affliction rooted in individual pathology and that there was some consistency in the perils generated by physical or psychological dependence on substances. Although the rhetoric of addiction typically worked to affix an indelible label to a person, the relationship of drug users themselves to the concept of addiction often changed depending on context, policy regime, and time period. The same person might desperately struggle to be certified by the state as an addict in one setting while shunning the label and its stigma in another.
"Pusher" referred to someone who sold drugs at the street level and was typically imagined to be an African American or Latino man. There was considerable slippage between this term and "addict," since many habitual users, particularly with little income, sold and traded drugs to sustain their habit. The term "pushers" implied that drug sellers were involved in aggressively recruiting new customers and creating more addicts, as opposed to responding to consumer demand. The distinctions between "victims," "addicts," "pushers," and "addict-pushers" grew increasingly important as addiction was medicalized and consternation about crime and drugs grew. While these categories were highly fluid, mutable, and contested on the ground, the state's prescribed classification would have profound consequences for the fates of those labeled.
When New York faced escalating drug use after World War II, politicians and their constituents offered a range of interpretations of it and policy responses to it. Doctors, activists, law enforcement, and an emerging cadre of addiction treatment experts — some of whom were themselves "ex-addicts" — also entered the fray to assert their own authority and policy proposals. The result of these deliberations was an evolving set of therapeutic programs and criminal sanctions aimed to manage drug users and mitigate crime and drug use. The state's varied anti-drug programs rested on distinct conceptualizations of addiction, empowered different groups, and produced divergent outcomes. Each presented political problems stretching beyond the considerable difficulties entailed in controlling drug markets and users. Building a substantial network of treatment programs proved to be controversial and expensive. It was dependent on fraught political coalitions, opposed by powerful interests, besieged by critics of all political persuasions, and ostensibly designed to serve some of the most reviled groups in society. Drug users and their allies began using the state's purported commitment to rehabilitation to make demands for very different programs and more profound reforms. And in the midst of these ordeals, other local, national, and international developments intervened in the early 1970s to make the drug use in New York an even more explosive issue. It was this thorny landscape that Rockefeller would endeavor to navigate with his infamous 1973 proposal.
The Menace of Heroin
World War II interrupted heroin supply routes, but the drug reappeared as trade reopened after 1945 and it soon presented a host of new challenges for the state. The estimated number of heroin users increased tenfold during the 1960s, from fifty thousand nationally in 1960 to approximately a half million in 1970. A number of forces contributed to this rising use. Between 1960 and 1970, the gross national product doubled, increasing consumer demand for all types of commodities, legal and illegal, at the same time that a large cohort of baby boomers reached the ages most prone to initiate drug use.
New York City's heroin markets were primarily concentrated in the densely populated African American and Latino communities created by mass internal migration and discriminatory housing practices. Just as international conflicts and the escalating Cold War shaped the global supply and circulation of heroin, the profound political economic transformations and dislocations in the decades after World War II shaped the domestic heroin markets. Decline in the industrial and manufacturing sectors started early in New York City, driven in part by relatively high production costs, corporate migrations, and changes in technology and infrastructure. At the same time, substantial groups of Puerto Ricans and African Americans migrated to the city, searching for jobs that were increasingly unavailable or simply nonexistent. Many of them encountered instead extreme residential segregation that concentrated the poor and people of color into ghettos systematically underserved by state programs. This spatially structured economic and racial inequality was the product of market forces and state action (and inaction). "Urban renewal" and highway and bridge developments displaced and disrupted many working-class neighborhoods. These infrastructure projects, coupled with discriminatory lending and real estate practices, facilitated rapid suburban development and the mass migration (of the predominantly white middle class) to hitherto less accessible areas, such as Long Island and Staten Island. The unemployment rate for teenage African American men was consistently higher than that of other groups and doubled between 1960 and 1970 to 35 percent.
Declining licit economic opportunities propelled more and more young men into drug markets, which in turn increased access to and use of heroin. Police neglect and corruption also served to corral drug markets into urban communities of color, further multiplying the number of people exposed to drugs and the drug trade. Accurate or consistent measurements of drug users and addicts were notoriously elusive. At one point, government officials estimated that the number of addicts increased from 25,000 in 1966 to 200,000 in 1973. The New York State Narcotic Control Commission, however, claimed that there were 60,000 heroin users living in New York City in 1967, three-quarters of whom were African American or Puerto Rican.
This mounting drug use became an increasingly politically urgent issue through its connection to the era's rising crime rates. Although many researchers rejected a direct link between addicts and violent crime, politicians and popular media alleged that heroin users who needed money to purchase drugs were responsible for street crime, particularly mugging and robbery. The vexed political rhetoric of the period often inflated the amount of theft committed by heroin users. For example, in assessing the extent of crime heroin addicts committed, the Rockefeller administration would multiply the estimated number of addicts by the amount of money it cost to maintain a daily heroin habit; thus addicts were said to have stolen $1,095,000,000 worth of goods in 1970. Since there was never more than $100 million of property reported stolen in all of New York during this period, the billion-dollar figure was clearly inaccurate.
This association between crime and drugs was especially salient in an era when dramatic rises in crime rates were widely reported and highly politicized. Since crime statistics are imprecise and malleable, debates raged at the time (and continue today) over the actual extent of the "crime wave" during this period. They are affected by factors such as changes in police departments' reporting practices or police discretion in arrests and crime classification. They were inflated to some degree in this period by demographic factors. Since the large cohort of babies born after World War II began reaching early adulthood — the age bracket most prone to commit crime — in the late 1950s, some increases in crime were predictable. Between 1960 and 1968, burglary in New York City increased 480 percent and the number of reported robberies grew by 825 percent. Some of this growth reflected the more diligent crime reporting initiated by New York City mayor John Lindsay. Despite these factors, crime rates were not wholly statistical artifacts. The murder rate — one of the more reliable crime measurements — also increased significantly when compared to that of preceding decades. There were 390 murders in the city in 1960 and 1,117 in 1970. While it was still lower than it was at many points in the first half of the twentieth century, the national murder rate escalated from 5.5 per 100,000 in 1965 to 7.3 per 100,000 in 1968.
Regardless of their imprecision, crime and drug figures had very real consequences for policy and public perception. A 1968 New York Times article explained that "the public does not weigh the unseen forces behind statistics. Their ears and eyes are exposed daily to television and radio accounts of the most sensational aspects of crime. Newspapers tend to group isolated crimes into 'waves.' Dinner conversations and office chatter are filled with personal knowledge of crime." New Yorkers' daily experience and individual fears were contextualized and given meaning by the persistent media reports about broader crime patterns.
But crime alone cannot account for the timing and fervency of the popular sentiment that "law and order" had eroded during the 1960s. The high-profile unrest and movements of the time exacerbated anxieties about social stability. These upheavals were not a news story from far away; New Yorkers directly participated in or witnessed the high-profile resistance. In 1963, housing activist Jesse Gray helped organize widespread rent strikes of 4,500 tenants in Harlem to redress degraded living conditions. The next year, the shooting of a fifteen-year-old African American boy by a white police officer triggered the "Harlem Riots." Many white citizens resisted the fundamental renegotiation of rights and privileges that such movements demanded. In political rhetoric and media portrayals, activism, especially African American civil rights organizing, was increasingly portrayed as crime. Street crime, urban rebellions, and protests blurred together, and the "drug epidemic" offered one explanation for the ills that seemed to threaten the nation. In many instances, it also became a racially sanitized way to blame urban problems on pathological individual criminals and drug users instead of on the factors identified by movement participants, such as moneyed elites, racial subordination, and gross economic disparities.
The anxiety about drug use in the 1960s was not historically unprecedented. The United States has experienced cycles of intense public consternation about intoxicating substances, usually influenced as much by who was publicly associated with the drug as the dangers posed by the substance itself. Efforts to control drug use have typically been connected to state-building projects and efforts to manage suspect populations and enforce societal norms. These long struggles over the appropriate societal, governmental, and personal responses to drug use resulted in the uneven yet steady development of two seemingly contradictory phenomena: the increasing medicalization of drug abuse and criminalization of drugs and their users. On one hand, the twentieth century witnessed an escalating prohibition of drugs (along with the prohibition and subsequent legalization of alcohol), coupled with the development of various state institutions and programs, such as the Federal Bureau of Narcotics, designed to prosecute their use and trade. On the other hand, the growing number of adherents to the "disease concept of addiction" enabled the development of new specialists, bodies of knowledge, and institutions dedicated to curing individuals of the compulsion to consume alcohol or drugs. Despite political rhetoric that consistently positioned medicalization and criminalization as oppositional strategies, the disease concept of addiction was not the antithesis of criminalization. Both law enforcement and addiction scientists approached illicit drug use as an aberrant behavior that was a threat to public order. Both saw addiction as an individual pathology, located in a person's biology or personality. Both assumed that public institutions beyond the family or social network should be enlisted in encouraging sobriety and abstinence.
As the notion that compulsive drug or alcohol use was a medical problem gained currency in many circles, the federal government established two narcotic farms in Lexington, Kentucky, and Fort Worth, Texas, in the mid-1930s. Addicts could be committed to these hybrid prison-hospitals by court order or "voluntarily" (although they were also often under duress from family or threat of prosecution). When drug use increased in the postwar period, policymakers intensified both treatment efforts and criminal penalties. Panic about juvenile delinquency, particularly the fear that white middle-class teens were becoming addicted to drugs through contact with urban pushers, helped inspire Congress to enact the 1951 Boggs Act. The law dramatically increased penalties and introduced harsh mandatory minimum sentences for drug distribution and possession. Five years later, Congress doubled the penalties for selling heroin and marijuana and limited the availability of parole and probation. For the first time in U.S. history, the law allowed juries to sentence those convicted of distributing drugs to life in prison and those selling drugs to minors to death. These harsh penalties failed to curtail drug use and, for many, the dramatic spread of heroin in the late 1950s and early 1960s strengthened the case for treating addiction as a disease. It emboldened groups such as the American Medical Association and the American Bar Association to advocate for reevaluation of punitive law enforcement strategies.
The courts also registered the broadening acceptance of the disease concept of addiction. In the 1962 case Robinson v. California, the Supreme Court ruled unconstitutional a California law that sentenced people to ninety days in prison for being an addict. Writing for the majority, Justice Potter Stewart explained, "It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal
disease. ... We cannot but consider the statute before us as of the same category." The Court declared imprisonment for being an addict cruel and unusual punishment and a violation of the Eighth and Fourteenth amendments: "To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold." This ruling opened the possibility that illness relieved addicts of legal responsibility. It was another decade before courts settled the legal questions raised in Robinson by narrowly interpreting the decision to simply prohibit criminalizing the status of addiction if accompanied by no other illegal act. The exact same ruling that decriminalized addiction also enabled the civic subordination of addicts by affirming the states' power to confine them indefinitely. Robinson v. California explicitly allowed for coerced, involuntary institutionalization, as long as it was to treat and not penalize: "A State might determine that the general health and welfare require that the victims of these and other human afflictions be dealt with by compulsory treatment, involving quarantine, confinement, or sequestration." Therefore, this foundational case forbid civic diminishment and containment for punitive ends but sanctioned restricting the liberty and rights of drug users for therapeutic purposes or when deemed necessary to protect the general welfare.
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Excerpted from Getting Tough by Julilly Kohler-Hausmann. Copyright © 2017 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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