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Latinas/os and the War on Drugs

Current drug policy relies on an “enforcement” or “penal” model,

emphasizing interdiction, arrest, prosecution and incarceration of

both distributors and users of controlled substances as its primary

“weapons” in what has often been characterized as a war on drugs.

—New York County Lawyers Association, Drug Policy Task Force, 1996

The war on drugs highlights the role that Latinas/os in the United States and Latin American nations play in the production, traffick- ing, and consumption of “illicit drugs” such as marijuana, heroin, and cocaine.¹ At the same time, it masks the roles that U.S. government agencies, law enforcement officers, middle- and upper-class whites, and private corporations have played in the development of the drug industry and the “multinational drug trade” (Joyce and Malamud 1998: 195).² It downplays the demand for such drugs among whites in the United States and Europe (Reuter 1998).

Internationally, such stereotyping criminalizes entire nations by di- viding the world into producer/aggressor countries, generally in Latin America and the Third World, and consumer/victim countries in Europe and the United States (Dorado 1998). Within this context, indi- viduals such as Latin American women drug couriers, or mulas, are ar- bitrarily transformed from “‘courier’ (poor, foreign, visible and vulner- able) into trafficker ‘aggressor’ (wealthy, powerful, manipulative, and dangerous)” (Green 1996: 3). Portraying all who transport drugs as dan- gerous is then justified by labeling them “narco-traffickers.” The impo- sition of severe sentences for drug crimes, in turn, proves how danger- ous they are.

In the United States, the war on drugs scapegoats groups that have historically been criminalized in various ways and are therefore easy targets for governmental repression (Churchill and Vander Wall 1988, 1989, 1992). These include Latinas/os and other people of color, immi-

Díaz-Cotto, Juanita. Chicana Lives and Criminal Justice : Voices from El Barrio, University of Texas Press, 2006. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/cunygc/detail.action?docID=3571874. Created from cunygc on 2019-01-09 14:59:51.

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12 Pre-incarceration Experiences

grants, undocumented workers, non–English speakers, the poor, and those seeking social justice. In the mainstream media these groups are portrayed as wetbacks, junkies, knife-wielding Puerto Ricans, promis- cuous Latinas, revolutionaries, terrorists, and Mexican thieves like the popular “Frito Bandito” commercials of the past. Latest among these images is the Latina gang member living her vida loca and the Latin American mula transporting drugs into the United States and Europe. Combined, these images depict Latinos, and increasingly Latinas, as immoral, criminal, and violent.

Drug-war rhetoric also justifies the manner in which law enforce- ment agencies have allowed informants, some of them drug kingpins themselves, to remain free while at the same time imprisoning vast numbers of people who play peripheral roles in drug trafficking.³

The war on drugs was initiated by Richard Nixon in 1968 on the heels of the racially charged “law and order” discourse of the “war on crime” of the late 1950s and 1960s. It was Nixon who shifted the focus from education and treatment options as ways of reducing the demand for illegal drugs to law enforcement options. He argued that it was addicts seeking to support their habits who perpetrated most street crimes and that only more convictions and imprisonment would deter them (Beckett and Sasson 2000). To achieve those goals, in 1973 he cre- ated the Drug Enforcement Administration (DEA). The war on drugs was also a response to the growing use of drugs among middle- and upper-class whites, particularly the young.

The drug war was intensified under subsequent presidential ad- ministrations with the creation of new civilian positions to enforce it, notably the “drug czar,” and a redefinition of the roles of existing fed- eral agencies now given major responsibility for drug law enforcement, including the FBI, Department of Defense (DOD), and INS (Beckett and Sasson 2000; Call 1993).

Domestically, the war on drugs was about reestablishing “order” in the wake of the various civil rights movements of the 1960s and 1970s. It allowed the federal government to save face amidst the dis- illusionment brought about by the disclosure that the United States played a major role in supporting and frequently establishing oppres- sive regimes throughout the world, but particularly in Latin America and Asia. Ultimately, the drug war sought to divert attention from the criminal actions of the U.S. government at home and abroad by scape-

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Latinas/os and the War on Drugs 13

goating the people and movements that demanded to be heard: people of color; women; welfare rights and anti-war activists; anti-capitalists; lesbians and gays; and national liberation struggles.

At the international level, the U.S. exportation of the war on drugs sought to achieve a consensus that a common enemy threatened na- tional, hemispheric, and international security. This enemy, so the argument went, combined drug trafficking, terrorist violence, and guerrilla warfare to produce a situation in which “narco-trafficking,” spearheaded by “narco-terrorists” and “narco-guerrillas,” threatened the security of the Western Hemisphere and, ultimately, of the “free world” (i.e., capitalist countries). Because of its transnational nature, this common enemy required common responses as outlined in the 1988 U.N. Vienna Convention (UN 1991). These responses included: the passage of mandatory and drug-related sentencing laws; increased arrests and imprisonment for drug crimes; the eradication of illicit crops; the militarization of enforcement efforts; and coordination of military, police, and civilian law enforcement operations under the di- rection of U.S. agencies (e.g., Pentagon, CIA, DEA, U.S. Customs Ser- vice).⁴ Ultimately, the war on drugs became a means by which to jus- tify the exportation to Latin America of U.S. advisors, weapons, and funding both to curb illicit drug trade and to quash revolutionary move- ments (Alonso 1997).

The United States’ insistence that other countries implement drug- war policies according to U.S. government priorities and its disre- gard for human rights abroad led to its expulsion from both the U.N. Human Rights Commission and the U.N. International Narcotics Control Board⁵ in May 2001 (Australian Financial Review 2001; Wil- liams 2001).

In the United States, war-on-drugs policies were implemented de- spite the fact that what makes international drug trafficking viable is the demand for drugs, primarily from Anglo-Europeans. The demand for drugs, however, as several studies have shown, can be most effec- tively reduced through educational campaigns and treatment pro- grams including “therapeutic communities, pharmacotherapies, out- patient drug-free programs, inpatient hospitalization, therapy-based (or psychiatric inpatient) programs, twelve-step programs, and multi- modality programs” (EOP 1997: 47). One of the advantages of treatment is that all types of treatment reduce drug use, drug-related illness, and

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14 Pre-incarceration Experiences

“criminal” activity (CSAT 1996; Gerstein et al. 1994). Equally impor- tant, “treatment can be effective for all” regardless of age, class, sex, race, or nationality (EOP 1997, 47–48).

Furthermore, drug-war policies were pursued even though it was known as early as 1977 that they were ineffective in reducing drug- related crime (ABCNY 1977). The Drug Policy Task Force of the New York County Lawyers Association (NYCLA) has argued that the drug war has been unable to significantly reduce the importation, distri- bution, and consumption of drugs, drug-related violent crime, or the profits generated by the illegal drug market (NYCLA 1996). The drug war has also been characterized by the “failure to provide meaningful treatment and other assistance to substance abusers and their families; and failure to provide meaningful economic opportunities to those at- tracted to the drug trade for the lack of other available avenues for fi- nancial advancement” (NYCLA 1996: 6).

The imprisonment rate for drug-related crimes also continued to in- crease despite evidence that severe sentences and imprisonment do not significantly affect the incidence of drug use or drug trafficking (Tonry 1995). During the late 1990s some states moved to make corrections and sentencing reforms that diverted low-level nonviolent drug offend- ers into alternatives-to-incarceration programs (King and Mauer 2002),⁶ yet local, state, and federal agencies as well as politicians and the mass media have continued to exploit public fears concerning the threat posed by urban gangs, drug-related violence, and drug trafficking. Such fears have led to public demands for harsher sentences and more prison construction (Beckett and Sasson 2000), although much of the violence that takes place in the United States is neither drug- nor gang-related. Moreover, as NYCLA has argued, a significant amount of violence that is drug-related is the result of alcohol-induced violent behavior and the nature of the war on drugs itself. That is, the prohibition of controlled substances, as opposed to their decriminalization or legalization, has led to increased competition for drug markets among drug distributors, growth in the illegal weapons trade, and violent encounters between law enforcement officers and drug dealers (NYCLA 1996).

Shifting the focus from drug enforcement and prison construction to education and drug treatment programs has been strongly resisted by law enforcement unions (Dunn 1996; EOP 1990; Idelson 1995). A change in priorities would mean a cut in revenues for law enforce- ment agencies that, unable to secure increased funding for other anti-

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Latinas/os and the War on Drugs 15

crime initiatives, have become increasingly dependent on funding des- ignated for drug-related anti-crime initiatives. Two examples of these are “block grants earmarked for drug law enforcement” at the local and state levels and “forfeiture provisions authorizing law enforce- ment agencies to seize ‘drug-related’ assets” (Blumenson and Nilsen 1997: 2). These include bank accounts, cash, businesses, houses, land, cars, boats, airplanes, drugs, jewelry, and equipment used to transport, store, and manufacture drugs.

Ironically, the monies generated from forfeitures have contributed to government corruption as police departments, bent on increasing their financial resources, seize property and assets even when no crime has been committed. The funds so generated have led to the creation of “self-financing, unaccountable law enforcement agencies divorced from any meaningful legislative oversight” (Blumenson and Nilsen 1997: 3).

Forfeiture laws have proved so profitable that during the 1990s the U.S. Department of Housing and Urban Development (HUD) sought the right to conduct independent raids in HUD-subsidized housing projects in order to benefit from such laws (Damuzi 2001). In 1999 the agency won a lawsuit that allows it to evict families from HUD-subsi- dized housing projects even when only one family member is caught with drugs. Moreover, in New York City, for example, “the presence of a felon in a household living in public housing in the mid-1990s became legal cause for all the members of that household to be evicted, no mat- ter their age or level of social vulnerability” (Bourgois 2003: xxii–xxiii). Because poor and working-class Latinas/os compose a significant pro- portion of public housing residents, they have been substantially and disproportionately affected by such laws.

Guards’ unions have also benefited from the drug war and the re- sulting growth in the number of prisoners and penal institutions. As their ranks have swelled with the growth in the number of facilities, so too have their wages and job security. In states like New York and California (Schiraldi 1994), prison guards’ unions are now among the most powerful lobbyists and campaign contributors to politicians and victims’ rights organizations, supporting tougher sentencing laws and the building of more penal institutions. The increasing influence of the California Correctional Peace Officers Association was demonstrated by the rise in corrections funding from 3.9% of the state budget in 1984 to 18% in 2002. (ibid.: 3).

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16 Pre-incarceration Experiences

The continued support for punitive law enforcement solutions de- spite their dismal failure to achieve any of the proclaimed goals of the war on drugs clearly shows that reducing the demand for illegal drugs is not the priority of government elites. In fact, although the legislative intent behind such policies was to arrest and incapacitate major drug traffickers, instead drug kingpins and corrupt local, state, and federal officials are rarely arrested, prosecuted, or imprisoned for drug traffick- ing, while low-level drug offenders are severely punished.

Other consequences of the war on drugs have been the weakening of civil governments and a surge in the number of human rights vio- lations by government agents. Such violations include the profiling of people of color and their communities as drug dealers, the discrimina- tory imposition of curfew and loitering laws in inner cities, and the ex- pansion of “federal prosecutors’ capacity to use illegally obtained evi- dence” (Beckett and Sasson 2000: 72). These have led to a surge in police searches of people of color and their homes and in confiscations of their property even when they are innocent of a crime. Likewise, innocent persons without adequate financial and legal resources have felt forced to plea bargain and accept prison terms rather than risk being found guilty at their trials and sent to prison for long periods of time (NYCLA 1996: 12). To these human rights violations have been added “unwar- ranted and unjustified drug testing of employees” as well as “property searches of children” (NYCLA 1996: 14).

Combined, the policies violate the First, Sixth, Seventh, Eighth, and Fourteenth Amendments of the U.S. Constitution. This is so because they deny defendants the right to counsel, due process, and a speedy trial. Moreover, defendants in civil cases often are denied the right “to a jury trial . . . in federal court,” to be free from “warrantless and unrea- sonable searches and seizures,” to bail, and to be free from “cruel and unusual” punishment (Johnson 2003: 48–49).

Soon after September 11, 2001, human and civil rights violations con- tinued to escalate as the Department of Justice began using the provi- sions of the newly passed USA PATRIOT Act of October 2001 to in- voke “intelligence powers . . . to conduct surveillance operations and demand access to records” not previously accessible without the autho- rization and strict monitoring of federal judges (Lichtblau 2003: 1A). In- voking intelligence powers, which use “differing standards of evidence” than criminal investigations, allows federal investigators to suspend habeas corpus, ignore the need to obtain grand jury subpoenas, “initi-

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Latinas/os and the War on Drugs 17

ate wiretaps,” “track private Internet communications,” and seize bank accounts (ibid.).

In the United States, federal agents now frequently use the excuse of a terrorist threat to invoke intelligence powers that allow them to seize records and carry out surveillance and criminal investigations of suspected drug traffickers (Leone and Anrig 2003; Lichtblau 2003).

Latinas/os and Criminal Justice Policies

The study of the impact of criminal justice policies on Latinas/os in the United States within this context is imperative, as they have become the largest ethnic minority in the country (USCB 2001). In 2000, Lati- nas/os comprised 12.5% of the U.S. population (Hornor 1999: 7).⁷ It is expected that as the Latina/o population increases, so will its arrest and incarceration rate in relation to African Americans and whites.

The overrepresentation of Latinas/os among the U.S. penal popula- tion was evident in 1997, when they composed 29.3% of prisoners in federal institutions (BJS 2001d: 517). In 1999 they were 17.0% of sen- tenced prisoners under state jurisdiction (BJS 2001c: 11) and 15.5% of those in local jails (BJS 2001a: 3).

In California, at least 38.5% of those held in jail on June 30, 1999, were “Hispanic” (BJS 2001a: 22),⁸ although at the time Latinas/os composed 32.4% of the state’s population (USCB 2001: 4). By 2002, Latinas/os comprised 35.4% of state prisoners in California.⁹

Several factors account for the increase in the Latina/o prisoner population. For one, the Latina/o population is a young population (USCB 2001). It is the young, particularly Latina/o and African-Ameri- can youths, who are more likely to be arrested and incarcerated. This trend is already apparent in the overrepresentation of Latinas/os in juvenile arrests, juvenile correctional facilities, adult jails, and pris- ons.¹⁰ By 2002, Latina/o youth comprised 48% of the wards and 51.3% of the parolees of the California Youth Authority (Byrnes, Macallair, and Shorter 2002: 7).

Other factors contributing to the increasing arrest and imprison- ment of Latinas/os are racism, excessive police patrolling of poor and working-class neighborhoods, criminal laws that target the types of crimes committed by these social classes, inadequate legal representa- tion, and the hardship imposed by unnecessary and sometimes exces- sive bail.¹¹ Bail also discriminates against the poor because all persons, regardless of economic status, are generally expected to pay the same.

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18 Pre-incarceration Experiences

Language barriers present at all levels of the criminal justice pro- cess also prevent Latinas/os from receiving equal treatment under the law.¹² This contributes to the overrepresentation of non-English-speak- ing Latinas/os within the prisoner population.

Furthermore, because Latinas/os are not as likely to be channeled into alternatives-to-incarceration programs as African Americans and whites are and few existing programs have been designed specifically for them, it is not surprising that they are overrepresented in pre-trial detention centers (Aguirre and Baker 1988; LEAA 1980). The fact that incarceration prior to the adjudication of guilt or innocence increases one’s likelihood of being sentenced to jail or prison¹³ means that, once arrested, Latinas/os are likely both to be sentenced to serve time in penal institutions and to receive harsher sentences.

In states including California and New York, more aggressive law enforcement practices and tougher parole board decisions have also led to an increase in Latinas/os convicted and in the length of their sentences. These trends were set into motion with the proclamation of the war on drugs at the state and federal levels, the reinstitution of the death penalty, and the passage of mandatory and drug-related sen- tencing laws during the 1970s, 1980s, and 1990s.¹⁴ Examples of such legislation include second felony offender laws, violent felony offender laws, changes in consecutive-sentence provisions, the Sentencing Re- form Act of 1984, the Violent Crimes Control and Law Enforcement Act of 1994, New York’s Rockefeller drug laws,¹⁵ and California’s Three Strikes Law.¹⁶ The latter, for example, mandated “that the penalty for a second felony be doubled and that a third felony result in 25 years to life. To be convicted under the law, only the first two felony convic- tions must be ‘strikeable’ (serious but not necessarily violent) offenses; the third can be any offense, no matter how minor” (Beckett and Sas- son 2000: 180).

Taken as a whole, such legislation reduced defendants’ ability to plea bargain, made imprisonment mandatory for certain offenses, abolished parole for some offenders, and increased the length of sentences for others. It also curtailed judges’ discretion over sentencing. As the case of mandatory minimum drug laws illustrated,

mandatory minimum drug laws oblige judges to ignore information about an

offender’s job status, family obligations, history of victimization, and potential for

rehabilitation. Moreover, because these laws punish according to the volume of

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Latinas/os and the War on Drugs 19

the drug seized, they oblige judges to overlook even the particular details of the

offense. (Beckett and Sasson 2002: 176)¹⁷

Ironically, in California, those most affected by the state’s Three Strikes Law were convicted for nonviolent property crimes (e.g., theft and burglary) and low-level drug offenses, primarily possession (Beckett and Sasson 2002; Clark, Austin, and Henry 1997). In New York, those most affected by mandatory and drug-related sentencing laws were also low-level drug offenders mainly arrested for sales (HRW 1997a). Many did not have prior criminal records. According to Human Rights Watch (HRW), low-level offenders include “people who possess drugs for their own use, small-scale street-level dealers, or people who occupy low positions in drug operations, such as lookouts, steerers, or couriers” (HRW 1997a: 15).

Another set of laws that increased sentence lengths are truth-in-sen- tencing laws. These laws changed the focus from indeterminate sen- tences (with no fixed maximum prison term) to determinate sentences (which provide a fixed maximum).¹⁸ These laws also mandated that per- sons convicted of felonies must serve most of their sentences before being eligible for parole. The 1994 Federal Crime Control Act, for ex- ample, stipulated that states applying for federal funding to build new prisons must require felony offenders to serve at least 85% of their sen- tences (Beckett and Sasson 2000; U.S. Sentencing Commission 1991). Because drug crimes are often processed as felonies, those arrested for violation of drug laws were more severely affected by truth-in-sen- tencing laws.

Likewise, federal sentencing guidelines and most state laws dis- criminate against the poor by legislating more severe penalties for of- fenses involving crack cocaine than those involving powder cocaine, which is used more frequently by middle- and upper-class whites. Ac- cording to Beckett and Sasson (2000: 179), “The decision by the U.S. Congress to impose a 5-year mandatory prison term (with a statutory maximum of 20 years) for five grams of crack but for 500 grams of cocaine therefore had a racially discriminatory impact.”

Beckett and Sasson (2000) also argue that “school zone” laws which impose mandatory sentences for the sale of drugs within a certain prox- imity of a school discriminate against people of color because schools are much more densely concentrated in inner city neighborhoods where a disproportionate number of people of color tend to live.

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20 Pre-incarceration Experiences

Overall, these crime-fighting initiatives have been supported by many well-meaning victims’ rights advocates, some of whom are spurred on and backed by government leaders, law enforcement and penal elites, and corporate-controlled media campaigns that have high- lighted gang and drug crimes committed by people of color and called for harsher punishments.¹⁹ Due to the discriminatory manner in which criminal justice policies have been framed and implemented, such de- mands necessarily result in the increasing arrest and imprisonment of more poor and working-class whites, but particularly of more people of color.

Latinas and the War on Drugs

As a result of the interactions of the policies discussed above, it is not surprising to find that during the 1980s and 1990s the war on drugs had more severe impacts on Latinas/os and African Americans than on whites. Thus while whites in the United States compose the majority of those who traffic drugs and over 80% of those who consume them (NYCLA 1996: 12), they are less likely to be arrested and sentenced to prison for such offenses. Even when arrested for such crimes, the U.S. Sentencing Commission and the federal judiciary found that whites are more likely to receive lower minimum sentences than people of color.

Partly due to disparate treatment, in 1997 Latinas/os composed 33% of those imprisoned in federal facilities for drug offenses (BJS 2001b: 11). In 1999 they were 20.7% of those under state jurisdiction for drug crimes (BJS 2001c: 11). In New York, 46.6% of drug felons in prisons in 1996 were Latina/o, 47.6% were African-American, and 5.3% were white (HRW 1997a: 14).

In California, the increasing arrests of Latina/o youth during the 1990s was also significantly associated with drug-related crimes. In 1999, Latina/o juveniles (10 to 17 years old) composed 43.6% of juve- niles arrested on misdemeanor drug charges in California and 42.5% of those arrested on felony drug charges (CDOJ 2000b: 20, 22). Police harassment of Latina/o youth as well as gang-related crimes, many of which are associated with drugs, have also contributed to this increase (Mirandé 1987; NCLOE 1977).

Men have always composed the overwhelming number of those ar- rested and incarcerated.²⁰ However, the war on drugs has more severely affected women than men. By 1991, 32.8% of women in state prisons

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Latinas/os and the War on Drugs 21

were serving sentences for drug offenses compared to 20.7% of the men (BJS 1994a: 3). In 1998, 30% of women in jail, 34% of women in state prisons, and 72% of women in federal prisons were serving time for drug crimes (BJS 1999: 6). In New York this trend was already apparent as of the late 1970s, when “a notably higher percentage of female new commitments were sentenced for drug crimes than male new com- mitments” (NYSDOCS 1986a: 19). This discrepancy continued through the 1990s. In California, 43% of the female felons (up from 13.2% in 1983) and 26.7% of the male felons (up from 7% in 1983) were impris- oned for drug-related offenses as of December 31, 1999 (CDC 2000a: Table 13). In 2001, adolescent girls (7.7%) held in California Youth Au- thority (CYA) facilities were also more likely than boys (5.1%) to have been committed for drug offenses that year (Byrnes, Macallair, and Shorter 2002: 7).

As a result of the interaction of gender and racial/ethnic factors, Lati- nas in New York were more likely to be imprisoned for drug offenses than Latinos. Hence, at the end of 1987, 62.3% of Latinas and 36% of Latinos incarcerated in New York were imprisoned for drug offenses, and on December 31, 2001, 61.5% of incarcerated Latinas and 38.8% of Latinos were imprisoned for such offenses (NYSDOCS 2002: 87).

Several reasons could account for this gender discrepancy. One ar- gument has been that as economic conditions have worsened for many as a result of sectoral job losses in the United States, drastic cuts in so- cial services, and the increasing incarceration of men of color, Latinas and other poor and working-class women have been forced to find new ways of generating an income. Within this context the global demand for drugs has provided for some an alternative source of employment (Díaz-Cotto 2004, 2006; Sudbury 2002, 2004a, 2004b).

Another explanation offered is that more women than men are using drugs. According to Coramae Richey Mann, “studies of drug use by ar- restees repeatedly show a higher percentage of female than male ar- restees who test positive, particularly for multidrug use” (Mann 1995b: 120). Several government reports also indicate that women in state pris- ons are more likely than male prisoners to have been under the influ- ence of drugs at the time of their arrests (BJS 1994a, 1999). Some of those supporting this explanation argue that more women are using alcohol and illegal drugs in an attempt to cover up and numb the pain result- ing from the physical and sexual abuse to which they have been repeat- edly exposed since childhood. The fact that an overwhelming number

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22 Pre-incarceration Experiences

of women offenders, as compared to men, are survivors of incest, rape, and battering seems to partly support this argument (BJS 1999).

Others sustain that the discrepancy in drug arrest rates for Lati- nas and Latinos is the result of sexism. Women do not tend to occupy major roles in drug networks and therefore in drug transactions. In fact, in New York City, Bourgois (2003) found, “The male-dominated ranks of the underground economy exclude females from the more profit- able, autonomous entrepreneurial niches such as dealing, mugging, and burglarizing” (279). Thus, lacking information that is most sought by law enforcement personnel and/or assets that can be forfeited, Lati- nas do not have the same plea-bargaining power Latinos have to secure lesser charges and sentences or no sentences at all (CANY 1999; Szala- vitz 1999).

Ironically, because Latinas and other women tend to be the primary caretakers of their children, they are more vulnerable than men to threats from both drug connections and criminal justice personnel. In fact, Latinas are sometimes arrested on drug violations in an attempt to pressure them to give information concerning the illegal activities of men in their lives (e.g., mates, brothers, fathers). Women who refuse to provide such information, whether out of loyalty to men or fear of retaliation by drug associates, are often punished more severely by dis- trict attorneys (Szalavitz 1999). So too are women who are willing to co- operate but do not have the type of information district attorneys value. Moreover, when arrested in their homes, they are also more likely than men to be charged with “child endangerment” and “contributing to the delinquency of a minor,” adding further charges.

Still others argue that women may actually be facing more pressure by men in their lives to provide “free or cheap labor in the drug busi- ness” (Sudbury 2002: 229). Although pintas interviewed did not offer this argument as an explanation, a number of them did say that Chi- canos seem less inclined than in the past to take the blame for crimes committed jointly in order to spare Chicanas imprisonment and sepa- ration from their children. In fact, they were more likely than before to try to convince women partners to take full responsibility for joint crimes. They assumed that women, particularly those with no previ- ous arrest records, would more easily “beat the rap,” that is, win the case, or, if convicted, get a shorter sentence than men with criminal records. Nonetheless, due to mandatory and drug-related sentencing laws, Latinas and other women are at least as vulnerable as men to re-

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Latinas/os and the War on Drugs 23

ceiving harsh sentences for drug crimes, even when their level of par- ticipation in illegal drug enterprises is less than that of men.

Once Latinas come in contact with the criminal justice system they are more likely than white and sometimes African-American women to be sentenced to prison for drug crimes. According to BJS, in 1998, “[w]hile nearly two-thirds of women under probation supervision are white, nearly two-thirds of those confined in local jails and State and Federal prisons are minority” (BJS 1999: 7). At the time, Latinas com- prised 6% of the U.S. population (Marotta and García 2003) but 15% of women in jails, 15% of women in state prisons, 32% of women in fed- eral prisons, and 10% of women on parole (BJS 1999: 7). That is, they composed approximately 1 in 7 women in jail, “about 1 in 7 women in State prisons but nearly 1 in 3 female prisoners in Federal custody” (BJS 1999: 7).

A study conducted by Mann (1995b) comparing New York, Cali- fornia, and Florida found that Latinas in California were more likely to be sentenced to prison for felonies than were African-American or white women. Thus, in 1990, “23.8% of Latinas arrested for felonies in California were sentenced to prison compared with 18.3% of African- American women, [and] 16.8% of white women” (Mann 1995b: 128). White women felons in California were also less likely to be impris- oned for drug violations and theft than Latina and African-American women, even though they were the most often arrested for burglary, drugs, and theft (Mann 1995b: 128). Hence, in 1990, Latinas comprised 18.7% of women arrested for drug violations but 26.1% of those im- prisoned for drug offenses. African-American women were 30.5% of women arrested on drug charges but 34.1% of those incarcerated for drug offenses (Mann 1995b: 128). White women were 48.5% of women arrested for drug violations but only 38.3% of those sentenced to prison. These discrepancies existed although, as Mann has indicated, at least one study found that female heroin and opiate use is similar among all three groups (Pettiway 1987).

In New York, 78.9% of the felonies leading to women’s imprison- ment in 1990 were drug violations. However, at the time, Latinas were 28.8% of women arrested but 41.2% of women sentenced to prison for such offenses (Mann 1995b: 128).²¹ During the late 1990s, Latinas con- tinued to be more likely than African-American but particularly white women to be sentenced to prison for drug offenses. Between 1997 and 2000, 71.3% to 79.5% of new court commitments for Latinas were for

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drug offenses, overwhelmingly for sales and secondly for possession (NYSDOCS 2000: 81).²²

Once in the system, Latinas, particularly those with no previous ar- rest records, tended to reject plea-bargain offers, believing they would be found innocent. However, most did not have the financial resources to post bails²³ or hire private attorneys as did middle- and upper-class women charged with similar crimes.²⁴ Other Latinas, even when inno- cent, frequently pled guilty to a lesser offense in order to get a reduced sentence.²⁵

Likewise, poor women could not afford to pay the costs of private recovery programs accessible to women with higher incomes. Thus, addicted Latinas often ended up in the criminal justice system, where treatment was usually not an option due to lack of available programs and to mandatory sentencing laws (CANY 1999).

Moreover, as noted by NYCLA (1996: 13),

[f ]or those women who have substance abuse problems, a combination of

mandatory reporting requirements and the child abuse and neglect laws serve to

deprive them of access to medical services, pre-natal care, and even substance

abuse counseling.

Hence, as Maia Szalavitz (1999) has pointed out, addicted women are less likely than non-addicts to seek medical services or treatment for their addiction for fear that they will be referred to police authori- ties by medical authorities. They also fear that imprisonment, particu- larly for those given long sentences, could result in the permanent loss of custody of their children. Likewise, 1980s and early 1990s publicity around “crack babies” promoted by the anti-abortion movement led several states to enact laws that tend to “criminalize the use of drugs by pregnant women” and subject them to prenatal incarceration and/ or prison sentences if the child is born drug-dependent (ibid.; see also Bourgois 2003).

At all times, among those most vulnerable were the non-English- speaking, particularly foreign drug couriers, who rarely had access to Spanish-speaking attorneys or translators (CANY 1992; CJC 1997).²⁶ Furthermore, Latinas and other women of color were more likely to be stopped for trafficking, strip searched, and arrested at airports than white women, even when they did not come from “source coun- tries.” According to the Correctional Association of New York (CANY), women more likely to be profiled as drug couriers were “Black and His-

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Latinas/os and the War on Drugs 25

panic women traveling alone, or with other women, from the Carib- bean, Africa and South America” (CANY 1992: 11).²⁷

A number of Latin American couriers interviewed by CANY spoke about how they were used as “decoys” by drug traffickers. That is, cus- toms agents were informed about women transporting small amounts of drugs on a flight in order to detract attention from other passengers carrying larger amounts (CANY 1992).

Harsh sentences were applied in cases involving drug couriers even when many women argued that they were forced to transport drugs by dire economic conditions²⁸ they faced in their countries of origin or threats made on them and/or family members. Others had been asked by friends or acquaintances to deliver a bag to someone in the United States, the contents unknown to them until their arrest. Some couriers did not see the drugs even after their arrest because they were arrested in one location and federal officials took the evidence somewhere else. In fact, in New York, “[n]either the drugs, nor photographs, nor any other evidence is required as proof of the charge” during grand jury pro- ceedings (CANY 1992: 10).

Once convicted for drug-related crimes, Latin American couriers who are not U.S. citizens, along with other noncitizens who have bro- ken U.S. laws, are considered “criminal aliens” and subject to the sen- tencing stipulations provided under the Sentencing Report Act of 1984 and the Anti-Drug Abuse Act of 1986 (BJS 1996). The former requires prisoners to serve at least 85% of their sentences, and the latter stipu- lates that those who have been convicted of distributing or importing controlled substances must serve “a mandatory minimum of 5- or 10- year term of imprisonment depending upon the quantity of drugs in- volved” (BJS 1996: 8). While some criminal aliens are deported after the conclusion of criminal proceedings,²⁹ others are deportable once their sentences have been completed (BJS 1996: 3).³⁰

Latinas and other women, whether pintas or not, have been affected by three decades of “get tough on crime” policies in yet other ways. Mona J. E. Danner has described some of these collateral effects:

A portion of the costs of prison construction and maintenance are paid for by

cutting social services from which women benefit. In addition, since women

are more likely to be employed in social services and men are more likely to be

employed in criminal justice, the increase in the criminal justice system at the

expense of the social service system places women’s employment opportunities

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26 Pre-incarceration Experiences

in jeopardy. Finally, the incarceration of parents leaves behind children who may be

traumatized and whose emotional and economic care is left to women. (Danner

2000: 215)

Moreover, as NYCLA has indicated,

[w]hen fathers are incarcerated for drug use or sale, it is the women who are left

to raise children in single parent homes. When teenage boys become involved

in the drug trade, it is their mothers who are evicted when civil forfeiture laws

are enforced. When men who are injection drug users share needles because

of the lack of availability of clean needles, the women they sleep with risk HIV

infection. (1996: 13)

Furthermore, Karlene Faith (1981) has observed, “Women are only rarely involved in armed drug deals, but they are often the victims in revenge killings between men” (99).

In summary, the war on drugs has severely affected Latinas/os be- cause of the overemphasis on drug crimes by criminal justice agen- cies (Beckett and Sasson 2000); Latina/o overrepresentation in drug arrests; the fact that drug offenses are among the most harshly pun- ished (CANY 1985, 1992, 1999; HRW 1997a); and discriminatory crimi- nal law enforcement policies. The combined result of these policies is that Latinas/os, but particularly Latinas, are disproportionately ar- rested, convicted, and sentenced to jails and prisons. Due to the lack of support services during and after incarceration, their recidivism rates are among the highest.

The Prison-Industrial-Military Complex

At the close of the 20th century, the United States imprisoned more persons, both per capita and in numbers, than any other country in the world. According to the U.S. Bureau of Justice Statistics (BJS), at the end of 2000, more than 2 million persons were held in federal (6.9%), state (60.9%), and local (32.1%) facilities (BJS 2001c: 1, 2).³¹ That is, “1 in every 143 U.S. residents were incarcerated in State or Federal prison or a local jail” ³² (BJS 2001c: 2). To government facilities were added privately operated jails (BJS 2001a, 2001b) and prisons (Bates 1981).³³ Many facili- ties became overcrowded soon after they were opened (BJS 2001c: 9).

California is one of the states that best exemplifies these trends. By June 30, 1999, there were 145 jails under 77 jail jurisdictions (BJS 2001a: 14). Since the early 1980s, the California Department of Corrections

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(CDC) “has been involved in the largest prison building program in the United States,” at a cost of $5.27 billion (CDC 2002: 1). This entailed ex- panding existing facilities and constructing new public and private in- stitutions. On June 30, 2000, California had 86 state public and private adult prisons (BJS 2001c: 9), including the two largest women’s prisons in the world. As a result of these trends, in mid-1999, California held the highest number of persons under the jurisdiction of jail authori- ties in the United States (BJS 2001a: 14). At year-end 2000, it also held the highest number of persons under state or federal jurisdiction in the country (BJS 2001c: 3). In 2002, it cost the state of California $26,690 to house each prisoner (CDC 2002: 1).

The number of persons under the supervision of local, state, and fed- eral penal authorities continued to increase even after the crime rate had begun to show marked decreases for many offenses during the 1980s (Beckett and Sasson 2000; DOJ 1981–2002; Lichtblau 2000). In California, for example, the arrest rate for misdemeanors peaked dur- ing the early 1980s, while that for felonies peaked during the late 1980s (CDOJ 2000a: 26).

It was the contradiction between increasing imprisonment rates, particularly of people of color, and declining crime rates that led human rights advocates to intensify their criticism of massive prison construc- tion during the 1980s and 1990s. They argued that imprisonment rates had little to do with crime rates and more to do with racism, economic trends, and governmental policies that target certain kinds of crime for prosecution (i.e., street crimes) and thereby certain groups for impris- onment (i.e., poor and working-class whites, but particularly people of color).³⁴

Critics of the war on drugs documented the ways private corpora- tions and government agencies benefited from continued prison con- struction. Companies such as Corrections Corporation of America and Wackenhut Corporation have made millions by “designing, construct- ing, financing, and managing prisons, jails and detention centers” (Sud- bury 2004a: 224). Other businesses benefiting from such ties include energy providers, legal firms, those providing security, food delivery, and telephone services, and firms in the garment industry. To these are added companies that benefit from the labor directly performed by prisoners for and within privately run prisons.

The globalization of the drug war has also been accompanied by the exportation of U.S.-based private prison companies and their sub-

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28 Pre-incarceration Experiences

sidiaries to other countries, including Puerto Rico and South Africa (Martin 2000; Sudbury 2002).

It was their questioning of the economic and political objectives of such policies and the ways private corporations and government agen- cies profit from both prison labor and prison construction that led pris- oners’ rights advocates to speak about the “prison-industrial complex” (PIC).³⁵ PIC calls to mind the concept of the “military-industrial com- plex” first used by Dwight Eisenhower and subsequently appropriated by the Left to describe the alliance between military and corporate interests.

PIC critics expose how ties between private corporations and state elites are safeguarded by the millions of dollars the former spend in political campaign contributions and in lobbying politicians in order to obtain lucrative prison contacts. In turn, private companies recruit lobbyists and corporate administrators from the ranks of former penal employees, politicians, and high-level bureaucrats.

The term “PIC” also calls attention to how urban but particularly rural communities, encouraged by politicians, private corporations, and the mass media, seek to rely on jails and/or prisons for solutions to economic difficulties created by the flight of industry and capital to Third World countries (Gilmore 1998). PIC critics indicate how the mass media contribute to the criminalization of people of color by en- couraging the fear of crime and portraying criminals as being primarily people of color.

Notwithstanding its usefulness in describing important phenomena taking place in the United States, the term PIC only partially describes the reality of those Latinas/os living along the U.S.-Mexican border, where the military has joined forces with the INS, the DEA, and U.S. and Mexican police forces in its increasing war against undocumented immigrants under the aegis of the war on drugs (HRW 1995b).

The discriminatory enforcement of immigration policies, combined with the emphasis on stopping the trafficking of drugs, money, and people across the border, have led to a greater incarceration of for- eign nationals (including children) and a host of human rights viola- tions.³⁶ While such violations have been extensively documented by civil and human rights organizations, it is important to note that for- eign nationals are frequently subjected to verbal, sexual, and/or physi- cal abuse by federal agents and other law enforcement personnel dur- ing arrest and incarceration in local, state, and federal institutions and

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private, for-profit facilities contracted by the INS to hold adults and mi- nors. Many are detained in overcrowded, unsanitary facilities for in- definite periods and denied access to appropriate legal counsel, trans- lators, and adequate recreation. While adults may be released pending deportation or exclusion proceedings, minors are not granted the same rights.

Moreover, PIC does not fully describe the reality of Latin American countries where the U.S. and local military forces, along with various U.S. federal agencies (e.g., DEA, CIA), are partners in carrying out drug- war policies alongside corporate and state elites.³⁷ While elsewhere I compare the impact of the war on drugs on Latinas in the United States, Europe, and Latin America (Díaz-Cotto 2004, 2006), suffice it to say here that in Latin America, the growing militarization of the war on drugs has been aimed at eliminating illegal drug production and trade as well as quashing Latin American revolutionary movements (Alonso 1997), all considered national and international security threats. As in the United States, the drug war has led to increased corruption, the weakening of civil governments, and widespread human rights vio- lations. Entire indigenous communities have been devastated and its members displaced. The number of women, men, and children arrested and imprisoned for drug crimes has drastically increased, along with the construction of more jails and prisons. Like their sisters in the United States, many women in Latin America are arrested primarily for economic and low-level, nonviolent drug crimes.

As a result of the above, the term “prison-industrial-military com- plex” would be more appropriate to describe the overall Latina/o ex- perience of the war on drugs both in Latin American and significant areas of the United States.

Concluding Observations

Within this context, it becomes imperative that we understand how the lives of pintas and other Latina prisoners in the United States are intertwined with the ideological arguments sponsored by the war on drugs and the policies it engenders. For even in those cases where Chi- cana addicts are sent to jails or prisons for short periods of time, the fact that they are repeatedly arrested and incarcerated for “breaking the law” contributes to maintaining the ideological justification for the war on drugs and other repressive policies that target poor and work- ing-class people. It is in poor and working-class neighborhoods where

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whites, Latinas/os, and other people of color live that such policies are played out on a day-to-day basis. They are the ones portrayed as being dangerous and violent, and, hence, deserving of being imprisoned for long periods of time.

It is against this backdrop that we can better understand some of the motivations behind the criminalization of Chicana addicts in Califor- nia and their repeated arrests for low-level nonviolent economic and drug-related crimes.

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