Excerpted From: Taleed El-Sabawi and Jennifer Oliva, The Influence of White Exceptionalism on Drug War Discourse, 94 Temple Law Review 649 (Summer, 2022) (103 Footnotes) (Full Document)


ElSabawiOlivaFor much of its history, the United States has adopted a punitive approach to escalating overdose rates and addiction through the prohibition or stringent regulation of drugs deemed dangerous or habit forming. The policy tools used to support this approach rely on criminal punishment for the possession and sale of such substances and are based on the theory that harsh criminal penalties will deter drug use. Dominant drug narratives associate the most vilified substances with minoritized populations, who have been caricatured as moral deviants hijacked by an uncontrollable urge to give in to sinful pleasures of a “high,” no matter the cost. Authorities have secured public acceptance for the country's predominantly punitive approach to drug policy through the use of heuristics, recycled narratives othering persons who use drugs, stereotypes, and racist beliefs about minoritized populations. The popularity of this strategy persists despite ample evidence that punitive responses are not associated with a decrease in drug use or overdose.

This punitive U.S. drug policy approach and its attendant symbolic moral crusade are commonly referred to as the “War on Drugs.” While frequently attributed to President Nixon, the inception of the War on Drugs can be traced back to the nation's first opiate crisis in the late 1800s. Because the War on Drugs has been used as a strategy to further subordinate Black persons and other persons of color, it has disparately impacted these minoritized and subordinated communities. While white Americans use and sell drugs at similar or higher rates than people of color, Black people are 6.5 times more likely than their white counterparts to be incarcerated for drug-related crimes. Consequently, almost eighty percent of people in federal prison and nearly sixty percent of people in state prison for drug offenses are racialized as Black or Latino.

The War on Drugs is as much a collection of rhetorical tactics used to other and subordinate minoritized members of society as it is a set of punitive policy tools. These rhetorical policy tactics include the use of simple, causal narratives that define addiction and overdose in ways that limit the availability of the full array of evidence-based solutions. These causal narratives also determine which populations are blamed for the policy problem and who should benefit (or be burdened by) policy solutions. These narratives are of particular importance because their underlying constructs lie at the heart of the policymaking process. Their construction of target populations also contributes to the othering of subordinated groups and hampers the ability of those groups to fully participate in the democratic process.

The War on Drugs relied on typified political responses to spikes in substance use or overdoses from the 1800s until “the [current] white drug war that wasn't.” In an apparent departure from previous War on Drugs rhetoric--which blamed drug use on flawed moral character--popular media coverage of the overdose crisis spanning from the 2010s to the present day has attributed the rise in overdose deaths to a “blameless disorder that '[did] not discriminate”’ and for which medication as treatment is normalized. While past media caricatures of persons who use drugs were dominated by stigmatizing portrayals of racial and ethnic minorities or poor, rural whites, the 2010s saw a rebranding of people who use drugs as “white, suburban youth and the middle-aged white housewife next door.” Experts argue that such “sympathetic” media depictions are driven by “underlying notions of white exceptionalism, in which white nonmedical opioid users are described as community members, legitimate patients deserving of care, and victims of unscrupulous prescribers and pharmaceutical companies rather than as criminals or flawed individuals.”

These media portrayals depict middle-class white persons as a population deserving of policy benefits in policy-studies speak. They weave a causal narrative that frames addiction as a disease and blames the crisis on individual “bad apples” (doctor dealers, unethical pharmacists, profit-driven pharmaceutical manufacturers, etc.) and nefarious prescription drugs. These causal narratives thereby limit policy solutions to those that are framed in health-oriented rhetoric.

Indeed, as policymakers embraced media narratives that portrayed people who use drugs as persons suffering from a chronic medical disease, the policy proposals enacted to address the overdose crisis were characterized by a health focus. The first federal legislative response to the ongoing overdose crisis, the Comprehensive Addiction and Recovery Act of 2016 (CARA), included an explicit statement that the current crisis is a public health problem. In addition, the U.S. Department of Health and Human Services took the unprecedented step of declaring the current drug overdose crisis a national public health emergency in 2017. Most recently, the Biden-Harris administration announced a nearly $4 billion appropriation “to expand access to vital behavioral health services” for individuals who use drugs. The administration publicly asserted that “people should not be incarcerated for drug use but should be offered treatment instead.” Even efforts to increase surveillance and control the supply of prescription opioids were framed in the language of healthcare quality control instead of attempts to identify and root out deviancy. Perhaps most surprisingly, various high-profile politicians and law enforcement officials have publicly acknowledged that “we can't arrest our way out of” the current crisis.

At first glance, the dominant policy discourse regarding the current overdose crisis suggests that the War on Drugs may be coming to an end. We are not so optimistic. We caution policymakers and scholars against drawing that conclusion. Instead, we argue that such health rhetoric is more appropriately viewed as a case of middle-class white exceptionalism, a key feature of the War on Drugs. Addiction is defined as a medical problem when the impacted population is primarily white and middle-class. According to Netherland and Hansen, this “White Drug War” “has carved out a less punitive, clinical realm for [white people] where their drug use is decriminalized, treated primarily as a biomedical disease, and where their whiteness is preserved, leaving intact more punitive systems that govern the drug use of people of color.”

Middle-class white exceptionalism treats addiction in middle-class white communities as the exception to the deviancy narrative. It also purposefully excludes ongoing addiction and overdose crises in communities of color from the policy discourse. For example, while indigenous communities experienced overdose death rates comparable to that of white communities, indigenous people were excluded as victims in media portrayals of the overdose crisis. Black communities also have experienced dramatic increases in the rates of overdose deaths involving illicit synthetic fentanyl and cocaine. Yet media portrayals continue to brand the current crisis as an “opioid epidemic” primarily impacting white persons. Branding the current crisis as a middle-class white opioid crisis has resulted in the exclusion of discourse on increases in methamphetamine-related overdoses in predominantly poor, rural, white communities.

The white-exceptionalism narrative not only deprives minoritized and subordinated populations from benefitting as the intended targets of evidenced-based policy solutions but further subordinates those populations by repeatedly framing persons of color as drug dealers--that is, as deviants driving the crisis and deserving of punishment. In fact, analysis of the current overdose-crisis framing demonstrates the sustained othering of racial minorities as drug traffickers responsible for importing heroin into white communities.

Immediately after the enactment of CARA in 2016, Senator Robert Portman (R-OH) boldly proclaimed, “[t]his is ... the first time that we've treated addiction like the disease that it is, which will help put an end to the stigma that has surrounded addiction for too long.” We disagree. In this Essay, we contend that the use of causal narratives that (1) characterize addiction as a health issue for middle-class white persons and (2) blame prescribers, pharmaceutical dispensers, and drug manufacturers for drug use disorder dates back at least one hundred years. We also demonstrate that this exceptional narrative has historically been deployed alongside parallel causal narratives of deviance, which define addiction and recreational drug use among persons of color as evidence of flawed moral character and not symptomatic of a medical condition. In sum, the middle-class white exceptionalism that others have highlighted as framing the current overdose crisis's causal stories serves not as evidence of the end of the Old Drug War but as one of the ongoing Drug War's key defining features.

[. . .]

One longstanding and defining feature of the American War on Drugs is white middle-class exceptionalism. As one researcher explains:

From the Chinese Exclusion Act of 1882, which drew on societal attitudes linking Chinese immigrants with opium, to the prohibition of marijuana in the 1930s with the support of racist campaigns associating the drug with “dangerous” Mexican immigrants, the scapegoating of [people of color] for drug use and trafficking has long been a feature of U.S. policymaking.

This Essay contends that the shift in rhetoric associated with the modern overdose crisis represents a classic case of white middle-class exceptionalism: a longstanding staple of the War on Drugs that demonstrates the Drug War's retrenchment rather than its demise. This exceptionalism defines addiction as a public health issue when middle-class white persons are perceived as the primarily impacted population. It simultaneously advocates for enhanced surveillance, punishment, and incarceration of Black persons, other racially and ethnically minoritized groups, and socioeconomically disadvantaged individuals, which it constructs as the culprits.

The War on Drugs has always been a classist and racist war that defines addiction as a sinful and deviant behavior when associated with racially minoritized and economically disadvantaged groups. While the effort to frame overdose deaths as a public health problem may indeed increase the likelihood that subordinated groups will experience improved access to lifesaving medications and treatments alongside their white counterparts, the War on Drugs continues as it has for more than a century. It remains unclear whether such health framing of substance use disorder and overdose will continue if the impacted population is no longer perceived as predominantly middle class and white.

Taleed El-Sabawi, Assistant Professor of Law, Florida International University, College of Law.

Jennifer D. Oliva, Professor of Law, University of California Hastings College of the Law.