Over at The Corner, Jonah Goldberg argues that there is something "unlibertarian" about pointing out the racially disproportionate impact of the war on drugs:
The classical liberal is supposed to see people as autonomous and sovereign moral actors, not identity politics groups. I'm hard pressed to think of another area where libertarians are so willing to talk about racial or ethnic groups as a class….
Unlike other government policies that discriminate…on the basis of race, the drug war's much lamented racism is more of a byproduct than anything else….The drug war—despite the many authentic tragedies it produces—doesn't set out to punish blacks because they are black. It sets out to punish people who sell (and to a lesser extent buy) drugs and use violence to protect their trade. That blacks are disproportionately in this line of work is certainly lamentable.
It's important to remember the racist roots of drug prohibition, not least because this history shows how easy it is to demonize intoxicants associated with unpopular groups. But I agree that contemporary drug warriors generally are not motivated by racism. The fact that blacks are disproportionately arrested and punished for drug offenses is nevertheless legitimate cause for concern from a classical liberal perspective. Such uneven treatment undermines the rule of law and creates a perception that blacks are being targeted either out of racial animus (which usually is not true) or because busting street dealers in poor neighborhoods is practically and politically easier than going after less conspicuous white dealers catering to the middle and upper classes (which is more often the case).
Goldberg assumes that blacks are disproportionately arrested for selling drugs because they are "disproportionately in this line of work." That is not at all clear. Considerable research, including studies by the National Institute of Justice, indicates that drug users tend to buy from people of the same racial or ethnic group. (This report [PDF] includes a quick summary of the research.) Given this pattern, since whites are about as likely as blacks to use illegal drugs, they should be about as likely to sell them. Yet blacks, who represent 13 percent of the general population, account for about 40 percent of drug offenders in federal prison and 45 percent of drug offenders in state prison (PDF).
Further evidence that blacks' disproportionate share of drug arrests cannot be explained by disproportionate involvement with drugs comes from New York City's little-noticed crackdown on pot smokers under Mayors Rudy Giuliani and Michael Bloomberg. Survey data indicate that among 18-to-25-year-olds, the age group where these pot busts are concentrated, whites are more likely than blacks or Hispanics to smoke marijuana. Yet a 2008 study by the New York Civil Liberties Union found that in the Big Apple blacks and Hispanics are, respectively, five and three times as likely to be arrested for marijuana possession. These are cases where simple possession is the most serious charge, and the arrests typically occur after police trick the defendant into producing concealed cannabis, thereby placing it "in public view" (which converts what would otherwise be a citable offense into a misdemeanor). The NYCLU report suggests these low-risk pot busts are motivated not by racism but by a desire to pad arrest figures and generate overtime pay. If blacks and Hispanics suffer disproportionately, it's probably because they are easier targets. Yet that in itself is disturbing. Police seem to be targeting poor black and Hispanic men for treatment that would not be tolerated if it were aimed at affluent whites.
Here is one more example of how a racially disproportionate outcome can be troubling even if it's not deliberate: Federal sentences for crack cocaine are much harsher than sentences for equivalent amounts of cocaine powder, even though these are simply two different forms (smokable and snortable) of the same drug. The mandatory minimum sentences established by Congress in the 1980s treat crack as if it were 100 worse than cocaine powder—i.e., it takes 100 times as much powder to trigger the same sentence as a given amount of crack. Since the supporters of these sentences included black politicians who believed the crack trade was destroying the communities they represented, it would be hard to argue that the policy was intentionally racist. But because the defendants in federal crack cases were overwhelmingly black, the upshot was that blacks were punished much more severely than whites for morally (and chemically) equivalent offenses. Troubled by this outcome, and gradually coming to realize that the arguments for treating crack and cocaine powder differently did not hold water, many of the people who originally supported this sentencing scheme, including members of the Congressional Black Caucus, turned against it.
From a libertarian perspective, the war on drugs would be unjust even if its victims were a statistically precise cross-section of the American population. But the fact that it disproportionately harms members of a racial minority that was long subject to official discrimination in this country is additional cause for concern, especially since the laws it enforces grew out of explicitly racist anxieties.