By Mark David Blum, Esq.

For the past fifteen years, I have been a sidelined observer in a process that is eradicating an entire generation of citizens from the streets of cities and towns all over New York. Had this been Kosovo or Darfur or if bullets and machetes were being used, the outcry would be loud. Because however the actions are being taken under the guise of “law”, we sit passively by as thousands are disenfranchised, incarcerated, killed, maimed, and forever removed from civil society.

I speak of course of the young Black male and America’s War on Drugs.

In my many conversations with leaders of the ‘Legalization Movement’, I always heard how the drug war has moreso impacted Blacks in society than any other class of citizens. It was almost a given that this was a truth and then conversations went from there. Despite study after study, report after report, and year after year, nobody seemed to be moving on the issue. Drug war politics is rife with internal conflict, competition over scant dollars, and lacks any direction. They want their argument fought in Washington D.C. and focus all their energies in that direction. Meanwhile, back home in the trenches, hundreds and thousands of citizens continue to disappear from the streets.

One day I decided to draw a line in the sand. If that argument is true, then the law would be unconstitutional. I convinced a college professor of economics to analyze the crime statistics for New York State. For all counties west of Herkimer, north of Cortland, and east of Erie, we looked at drug crime and who was being arrested therefore. Here are the hard data: Whether you agree with me or not, you cannot disagree with the cold reality. If you don’t like it, you can always find a way to change the system.

Our study shows that, …

“Arrest rates and corresponding arrest ratios that were calculated for Onondaga County were then compared with statewide averages with a few nearby counties. … Specifically, the arrest rate ratios indicate that the chances of arrest for black residents in Onondaga County are substantially greater in Onondaga County than nearby counties or the state as a whole. … During the years of the study, the arrest rate ratios indicate that chances of being arrested for drug felonies or drug sales are 20 to 40 times greater for black residents.”

“According to the New York State Division of Criminal Justice Statistics, arrest rates for black residents within New York State as a whole are about 4 to 5 times higher than that for white residents. … The unique nature of street drug markets in urban areas has sometimes been offered as an explanation of why minorities experience higher drug arrest rates than whites. Statistical evidence indicates that drug use patterns within these two racial groups are similar. However, the corresponding arrest rate ratios in Onondaga County are significantly higher than the arrest ratios in Erie or Monroe counties and also significantly higher than those for NY State as a whole. … These large differences in arrest rate ratios for Onondaga County have persisted over the time period included in this evaluation (1995-2004). This raises important questions, especially given the similar characteristics of the counties included in this assessment—Onondaga, Monroe, and Erie all have diverse urban, suburban, and rural communities.”

Here in Syracuse, in 2000, 2002, 2004, 2005, and 2006, studies, reports, and neighborhood evaluations of Syracuse Police activities show a rising effort of energy concentrated in low income minority neighborhoods. Significant numbers of Citizens and scientists have decried ‘profiling’ as being the basis for the disparate impact of police activity upon Blacks in Syracuse and Onondaga County. Racial profiling is not the issue; but instead, it is racial stereotyping that is causing the problem.

Low income neighborhoods are presumed to be rife with violence against persons and property and hence, stepped up police patrols are concentrated in those areas. An evaluation of the distribution of Level 1 offenses (violence against persons and property) shows that such crimes tend moreso to be occurring in more middle class neighborhoods than in the Southside or near Westside of Syracuse. The types of crimes that show up on activity reports for police in the poor neighborhoods are either on the spot observations by officers or crimes that do not exist absent the presence of police.

Yet local, State and Federal officials keep concentrating their energies and manpower in low income neighborhoods and on drug crimes. Using such high minded language as Operation Impact and the Organized Crime Act, we see that Blacks in this County are the ones who are at greatest risk of arrest, prosecution, and incarceration. They are being rounded up an entire neighborhood at a time; an entire generation at a time.

Under a 14th Amendment analysis, once it is shown there is a significant disparate impact of a facially neutral law upon a protected class, the burden shifts to the State to establish that there is both a compelling reason to have the law and that there is no more narrowly tailored means by which the desired ends can be achieved. Given the huge numbers of people in society engaged in the use and sale of drugs compared to the relatively insignificant number of those people who are investigated and prosecuted and that of those who are, that a significant number of those persons are African American, more than just eyebrows should be raised.

Compare this to the homicide statute. Intentional Murder is a serious crime in New York. Based on population percentages, there are presently significantly more Blacks in prison than Whites charged and convicted of the crime of homicide. This however does not imply neither that the homicide statute is illegal nor that since more Blacks are committing murder, we should not prosecute and convict them.

The homicide statute provides the best example of what a law should look like. It is narrowly tailored to meet a compelling State interest. Almost every homicide is investigated and almost every perpetrator is caught.

But drug use and sales are completely different. Millions of Americans are using drugs yet police and related agencies investigate just a very small number of these crimes. What makes this discussion meritorious is that of that small number of crimes actually investigated, why is it that Blacks make up a significant percentage of the population being prosecuted? This is where the problem is exposed.

Rush Limbaugh, a man I absolutely detest on so many levels, however did say it best. “The solution is not to free the Blacks, but to arrest more White people.” Clearly there is no way that police and the State could handle the prosecution and incarceration of every single drug user, abuser, seller, buyer, transporter, and their support industries. More people would be in prison than there would be persons to guard them.

Something about the Drug War, the law itself, and the actions by police here in Upstate New York is causing tremendous loss of life and freedom. An entire generation lost; their spouses, children, and later release from prison drive millions onto welfare roles. They are shut out of social services, housing, education, and the right to vote. If the law was applied fairly, then the discussion would be different but it is not and we all pay the price.

My question however is even more basic. Why does it seem sometimes that I am the only one who cares about this and I feel as though I am in this fight alone? I have been labeled a crusader or having some kind of agenda in my arguments. Perhaps I do. Perhaps the dream of Thomas Jefferson and his Libertarian concepts of freedom, liberty, and equal rights still lurks inside me.

What about you. Have you a dream for the kind of nation we should be or how we treat our fellow citizen? Remember, that which you take away from another can be taken away from you. Today, it’s the Blacks. Who will be next?